of their business were imputable to him; but a rehearing was granted, and on further proofs, showing that Levois personally did no disloyal act, and that he was not responsible for the conduct of Vidal, the court, acting upon the doctrine settled in the case of Worth, gave him judgment for the entire amount of his claim.

Levois

Between that case and the present there are no differences. was a non-resident alien, as are the petitioners in the case now under consideration.

This court has in oft repeated instances made awards in favor of seamen who were not citizens or residents of this country, whose only title to protection arose from the fact they were upon an American ship.

The only limitation of the right to recover in this court, which has been made, is in the case of native-born British subjects, who have been held under the peculiar circumstances of the case not entitled as against the negligence of their own government to protection in the premises. The views of the court upon this question are found in the opinion of the court in the case of Worth before referred to.

It may not be amiss, however, to restate the view taken by the court in regard to the exclusions contained in the last clause of the twelfth section of the act.

The claimant is excluded unless he was at the time of the loss entitled to the protection of the United States in the premises, and unless he at all times during the rebellion bore true allegiance to the United States.

The language of the first exclusion is peculiar; the words are, "not entitled to the protection of the United States in the premises;" not simply not entitled to the protection of the United States, but not enti tled in the premises.

Now no foreigner, no alien non-resident, is entitled to the protection of the United States as to his person, except under special circumstances. He may have sought the asylum of one of our legations, and, being there received, may be entitled to protection.

A foreigner may be entitled to protection either as to his person or as to his property, or both. If he is within this country, or on the deck of one of our vessels, his person and his property with him are under our protection. And if his property alone is within this country it is enti tled to and every where receives the same protection as the property of citizens; and so of the property of an alien non-resident upon the seas in an American vessel, this Government has always extended to it the same protection as to that of citizens.

We think the language of this clause of the act exactly adapted to a state of facts like the present, and that Congress meant to say, "When ever, under the circumstances of the case, the person or property of any claimant was so situated as to be entitled to the protection of the United States, you shall award to such claimant indemnity for loss; but you shall have regard to the power against whom protection is claimed. If a claimant who either in his person or his property might otherwise have been entitled to our protection, was a native-born subject of England, through whose negligence these losses occurred, you will not grant him redress. We did not engage to protect him as against the acts of his own government, even though as against all the rest of the world he was entitled to and would receive protection."

These considerations enable us to come readily at the meaning of the last of the exclusions above referred to, that the claimant must at all times during the late rebellion have borne true allegiance to the Uaited States.

In a strict sense, no one but a citizen can bear true allegiance; that is, complete, perfect allegiance.

But this court has in numerous instances made awards to persons not citizens. The case of Levois, above referred to, is one. During the entire period of the rebellion he resided in Paris. He bore no personal allegiance; no duty was required of him personally, yet he showed that he did no act which a loyal citizen might not have lawfully done. He made such a use of his property in this country as was conformable to law, and so bore all the allegiance which a non-resident citizen could be required to bear.

Having done no act to aid the confederacy, either personally or by an improper use of his property here, the court awarded him his claim. The only doubt which arose in his case, which was twice argued, was whether his partner and agent, Vidal, in the conduct of the business did not aid the confederacy.

In the cases of very many sailors awards have been made to aliens who were not proved to have been on our ships but for the single voyage on which their property was destroyed.

In every case hitherto it has been considered sufficient for the claimant to show that he did no act at any time in aid of the rebellion.

It is to be observed that the allegiance is only during the late rebellion.

Construing this clause in connection with the part that precedes it, we think the true meaning is that no award shall be made in favor of any person who was not entitled to protection as to his property at the time of his loss as against the British government and as against the confederacy, and that even if he was entitled to such protection as against both governments at the exact time of his loss, yet if he at any time during the rebellion was guilty of any breach of true allegiance to the United States he shall not recover in this court.

This seems to us to furnish a construction of the law conformable to its terms and consistent with reason and justice, and entirely in har mony with all the preceding decisions of this court.

It gives full effect to the principle for which this court in the case of Worth assert that our Government has contended from its origin, viz, "that the flag protects the ship and every person aud thing therein not contraband." (Worth's case.)

The only other objection to the recovery by the claimants in this case arises out of the fact that Meyer had applied for and been admitted to the privileges of a British subject in India. It is claimed that he comes within the case of the British subject excluded by former decisions of this court.

Meyer was not a native-born British subject, as has been the case of every one heretofore rejected. He was never naturalized in England. The qualified naturalization which he obtained gave him no rights of a British-born subject in England. It only entitled him to the enjoyment of certain privileges in British India. He did not renounce his allegi ance to his native country, nor did he acquire the right of protection from Great Britain, except as to his person and property while within the jurisdiction of the colony which gave him the naturalization. Upon his return to his native country he might lawfully bear arms against Great Britain.

Lord Chief-Justice Cockburn, in his Treatise on Nationality, published in 1869, states the British law as to the effect of naturalization in the British dominions, as follows:

By the law of every other country, naturalization, if valid at all, carries with it a new nationality, and invests the party naturalized, not only with the status of a sub

**

ject, but also with the rights, political and civil, (barring in some respects the higher political rights,) which attach to that status, including the full extent of protection to which a subject can be entitled in return for the allegiance he owes to the state. In this country, on the contrary, since 1851, the Government, with a view to prevent claims for protection being made abroad by persons naturalized in Great Britain, bas taken care, by the terms of the grant, to limit the effect of naturalization to the dominions of the crown. Thus restricted, it is plain that the effect of naturalization in Great Britain is only to remove the legal disabilities of the alien, and to place him as to certain minor political rights, and as to civil rights, on the same footing as the natural subject; and, further, that the oath of allegiance taken by him amounts to no more than a promise of that allegiance which every alien while residing in the realm is bound to render, and must be taken to carry with it the implied reservation, that it is to operate no longer than while the party remains within the Queen's dominions. When abroad he is no longer a subject. On his return to his own country his nationality of origin, so far as this country is concerned, would revive, and in case of war between the two countries he might legally bear arms against Her Majesty without incurring, legally or morally, the guilt of treason. (Ch. J. Cockburn on Nationality, 114, 115, 116.)

The commission appointed by Parliament, composed of the most learned publicists of the kingdom, and among them Lord Clarendon, Sir Robert Phillimore, Sir Roundell Palmer, W. Vernon Harcourt, and Montague Bernard, reported on the state of this branch of law, and said:

In the case of an alien-born, naturalization in the United Kingdom under the act of 1844 does not confer any rights of nationality within the colonies. (10 and 11 Vict., e. 83.) On the other hand colonial naturalization confers no rights of nationality beyond the limits of the colony granting naturalization. (Reprinted in Opinions of the Executive Department, and other papers relating to expatriation, naturalization, and change of allegiance, Washington, 1873, page 73; U. S. Foreign Relations, 1873, part 2, p. 1241.)

These citations seem to fully sustain the foregoing conclusions as to the legal condition of Meyer, and we do not think he comes within the principle upon which we have deemed native-born British subjects excluded from the benefits of the law under which we act.

We, therefore, are of opinion that the claimants are entitled to recover the loss which they have proved.

This court has power to decide conclusively upon the amount and validity of claims, but not upon the conflicting rights of parties to the sums awarded. This court cannot compel parties making conflicting claims to interplead, but in all such cases fixes the amount due from the United States, and awards payment thereof to the party having the better prima-facie right, but without prejudice to the right of other parties to contest the question of title to the amount awarded before other appropriate tribunals. A statement of the case will be found in the opinion of the court.

Mr. B. W. Throckmorton for the complainant Taylor.

Messrs. Selden & Morse for the complainant McLeane, administratrix. JEWELL, judge, delivered the opinion of the court:

In the first of these cases, William Johnston Taylor claims compensa

tion for the loss of two-sixteenths of the steamer Electric Spark, destroyed by the confederate steamer Florida July 10, 1864.

The fact of the loss and the value of the vessel and freight have already been adjudicated upon and determined by this court, and damages awarded to the owners of the other fourteen-sixteenths of the vessel.* As to one-sixteenth, claimed by Mr. Taylor, it was admitted that he had a right to recover.

The right to the other sixteenth was contested, the petitioner in the second case claiming that her late husband, S. P. Bowen, was the true owner of the same.

The undisputed facts appear to be that the Electric Spark was built by Mr. Taylor; that in the original enrollment made by him he declared that S. P. Bowen was the owner of one-sixteenth of her.

The evidence taken in the case of Mr. Taylor, which consisted principally of his own testimony, tended to show that the vessel was built by him; that in taking out the original papers he declared one-sixteenth of the vessel to belong to Bowen; that Bowen had not paid for the interest declared to be in him, but that Taylor charged Bowen with the value of this interest on his books, payment to be made by Bowen out of the profits of the vessel, and that payments had been made on account, and profits passed to the credit of Bowen in part liquidation of the charge before the loss; that after the loss Bowen and Taylor arranged that this ownership in the vessel should be treated as a nullity, and that the sums passed to the credit of Bowen in part payment for the vessel should be treated as credits in favor of Bowen and due to him from Taylor; and that Bowen should be treated as not interested in the vessel; and that Bowen did subsequently use all these sums as debits from Taylor to himself. It was, therefore, claimed by the counsel for Taylor, that even if the legal title to the sixteenth in question was in Bowen, yet that the equitable interest was in Taylor.

There was no cross-examination of Mr. Taylor on behalf of Mrs. McLeane, and no notice given to her of the time of taking testimony in his

case.

It was claimed by the counsel for the administratrix of Mr. Bowen that, as the record-title at the time of the loss was in him, this court could not inquire into equities existing between him and Taylor; and that, as Taylor could show no legal transfer of the interest in question to him before the loss, and no assignment of the claim after loss, the award of damages by this court must be to the representative of Bowen, leaving the question of title to the damages, when awarded or received, to be settled by litigation between the parties in other courts.

Upon full consideration, we are of opinion that we cannot and ought not to undertake to decide those conflicting questions of title.

The act of Congress under which this court is organized gives us no authority to compel those different claimants to interplead. We have no power to compel either of the claimants to submit themselves (if they are competent witnesses) or any witnesses they may see fit to examine to cross-examination by any other person than the counsel of the United States.

As against the United States, the parties are competent witnesses; as against each other, they may not be.

The Electric Spark, the only merchant-steamship destroyed by either of the socalled insurgent cruisers, was captured when one day out from New York. Over one hundred and seventy-five claims were filed in the court for loss occasioned by her destruction. The other owners, through Mr. B. W. Throckmorton, recovered the value of vessel and freight at the rate of $164,000, with interest.

S. Ex. 21-8

Besides, the extremely short period originally allowed by law, or ever since the extension lately granted by Congress, for the hearing and disposition of the claims before this court is of itself evidence that it was intended that we should consider only these claims as against the United States.

But the case of Comegys vs. Vasse, 1 Peters, 193, it seems to us, is conclusive authority upon this question.

That was the case of a claim made before the commissioners appointed under a treaty with Spain, made in 1821, to ascertain the damages suffered by citizens of the United States by reason of the acts of Spain. The commissioners were to "receive, examine, and decide upon the amount and validity of all claims," &c.

The act constituting this court provides (§ 11) "that it shall be the duty of the court to receive and examine all claims, &c., and to decide upon the amount and validity of such claims," &c.

The powers conferred upon this court are identical with those given to the commissioners under the Spanish treaty.

In that case the Supreme Court decided that these commissioners had power to decide upon the amount and validity of the claims as against the United States, but not upon the conflicting rights of parties to the sums awarded by them.

We believe that the doctrines of this case equally apply to the powers of this court.

In more than one case already passed upon by us there have been conflicting claims, and we have referred to Vasse's case as an authority which this court would follow, and have entered awards in favor of the claimant having the best apparent prima-facie case, always saying what we here declare, that our judgments are not conclusive except as against the United States, and that conflicting claims to the amount to be paid by the Treasury are to be decided upon by other appropriate tribunals. We have, in cases heretofore made, fixed the value of the steamer Electric Spark and her freight at the sum of $164,000.

In case No. 1179, we award to Mr. Wm. Johnston Taylor the sum of $10,250, being the value of one-sixteenth of said steamer and freight, the title to which in him is undisputed.

And, inasmuch as the title to the remaining sixteenth is in dispute, the same being claimed by said Taylor and also by Agnes Crook McLeane, administratrix of the estate of S. P. Bowen, as set forth in claim No. 763, and as we find that the said Bowen was named in the enrollment of the vessel as the owner of one-sixteenth, and so the apparent legal title was in him at the time of the destruction of the vessel, we award to Agnes Crook McLeane, administratrix, the sum of $10,250, being the value of said sixteenth of said vessel and freight.

But this award is not to be taken or considered as a judgment of this court as to the mutual or conflicting claims of the parties above named, but only that the aforesaid sum is due from the United States, and is awarded to Mrs. McLeane as having the prima-facie right thereto, and without prejudice in any way to the right of said Taylor to demand and recover the same, if he shall, on proper proceedings, establish his right thereto.