usage, when once settled, though it may be "comparatively of recent date, and is not one of those to the contrary of which the memory of man runneth not, which contributed so much to make up the commonlaw code." Strother . Lucas, 12 Pet. 436. A vessel owned and manned by Makah Indians is not specially privileged to catch fur seal in Bering Sea by reason of the treaty between the tribe and the United States (12 Stat. 940), guaranteeing to such Indians the right of taking fish and of whaling and sealing at usual and accustomed grounds, " in common with all citizens of the United States." The treaty secured to the Indians only an equality of rights and privileges. United States v. The James G. Swan (Dist. Ct.), 50 Fed. Rep. 108. "Where, by the express terms of a treaty, the mode of receiving payment of money to be paid is submitted without limitation to the party entitled to receive, he alone can make the designation; and it is equally true that those modes which governments may, and often do by express stipulation adopt can not only not be deemed contrary to the rules and customs generally observed, but may be properly resorted to under a treaty, which, by excluding no particular mode, fairly embraces every one which is appropriate to such transactions between nations, and convenient to the party entitled to receive.” Mr. McLane, Sec. of State, to Mr. Serurier, French min., June 3, 1833, Under the act of Congress constituting a board of commissioners to pass on claims provided for by the treaty with France of 1831, the decision of the board as between conflicting claimants is not conclusive, and the question of their respective titles is fully open to be adjudicated by the courts. Frevall v. Bache, 14 Pet. 95. The commissioners appointed by the governments of the United States and Russia for the transfer of Alaska to the United States, under the treaty of March 30, 1867, had no power to determine the question of title to particular property as between the Russian govcrnment, the Russian-American Company, and private individuals, and the fact that they placed a certain building in a schedule of property belonging to private individuals does not prejudice the assertion by the United States of title to the property under the treaty, on the ground that the building was in reality the property of the Russian government. Kinkead v. United States (1893), 150 U. S., 483, Shiras and Field, JJ., dissenting. Counsel for the claimant cited the case of Comegys v. Vasse, 1 Pet., 193, in support of the contention that the classification of the property by the commissioners determined the question of title as a contemporaneous construction of the treaty to the effect that the property of the Russian-American Co., in which the claimant alleged the title to have existed at that time, was not intended to pass to the United States. The court said that the cases were readily distinguishable. Under the Florida treaty, commissioners were to be appointed "to receive, examine, and decide upon the amount and validity of all claims." The commissioners were therefore specially invested with judicial power to pass upon claims; but even in that case it was held that their authority did not extend to the adjustment of conflicting rights of different citizens to the amounts warranted by them. A treaty obligation "to cease all hostilities against persons and property" does not constitute an obligation to pay depredation claims. Leighton v. United States, 29 Ct. Cl., 288. France, 1817-1831. 3. MOST-FAVORED-NATION CLAUSES. (1) RECIPROCAL CONCESSIONS. § 765. By the act of Congress of March 3, 1815, the vessels of foreign countries were exempted from discriminating duties Controversy with in ports of the United States, on condition of a like exemption of American vessels in the ports of such countries. The exemption was granted by Great Britain, but not by France, with the result that French vessels continued, to pay discriminating duties in the ports of the United States while British vessels became exempt. By article 8 of the treaty of April 30, 1803, ceding Louisiana to the United States, it was provided that "the ships of France shall be treated upon the footing of the most favored nations" in the ports of the ceded territory. On the strength of this stipulation, M. Hyde de Neuville, the French minister at Washington, wrote to Mr. Adams, Dec. 15, 1817, saying that he had been directed by his government to inquire as to the truth of the statement made by several masters of merchant vessels, that French vessels were not treated in the ports of Louisiana upon the footing of the most favored nation. He had found that the allegation was true, and that protests had been made in vain to the local authorities. He therefore H. Doc. 551-vol 5-17 asked that orders be issued by the President so that in future the 8th article of the treaty should receive its entire execution, and that the advantages granted to Great Britain in all ports of the United States should be secured to France in the ports of Louisiana. In his reply, December 23, 1817, Mr. Adams said: “The eighth article of the treaty of cession stipulates that the ships of France shall be treated upon the footing of the most-favored nations in the ports of the seded territory; but it does not say, and can not be understood to mean, that France should enjoy as a free gift that which is conceded to other nations for a full equivalent. It is obvious that if French vessels should be admitted into ports of Louisiana upon the payment of the same duties as the vessels of the United States, they would be treated, not upon the footing of the most-favored nation, according to the article in question, but upon a footing more favored than any other nation; since other nations, with the exception of England, pay higher tonnage duties, and the exemption of English vessels is not a free gift, but a purchase at a fair and equal price." Replying, finally, in a note of March 29, 1821, to the argument that any advantages granted to other nations, either reciprocally or unconditionally, must be given to France in the ports of Louisiana, because the treaty stipulation in question was unconditional in form, Mr. Adams declared that this was immaterial, "and that, whether expressed or not, no claims to a favor enjoyed by others could justly be advanced by virtue of any such stipulation without granting the same equivalent with which the advantage had been purchased.” M. Hyde de Neuville, French min., to Mr. Adams, Sec. of State, Dec. 15, 1817, Am. State Papers, For. Rel. V. 152; Mr. Adams to M. de Neuville, Dec. 23, 1817, id. 152-153; M. de Neuville to Mr. Adams, June 16, 1818, id. 153-155; Mr. Adams to M. de Neuville, March 29, 1821, id. 163-165; M. de Neuville to Mr. Adams, March 30, and May 15, 1821, id. 165, 171; Mr. Adams to M. de Neuville, June 15, 1821, id. 180; M. de Neuville to Mr. Adams, June 30, 1821, id. 186; Mr. Adams to M. de Neuville, Aug. 13, 1821, id. 192. The views expressed by Mr. Adams are restated by President Monroe in his annual message of 1821, with the observation that the claim of France had excited "not less surprise than concern, because there does not appear to be a just foundation for it." Not long after the close of the discussion between Mr. Adams and M. de Neuville at Washington, the question was renewed by the French government in the negotiations by which Mr. Gallatin, American minister at Paris, sought to effect a settlement of the spoliation claims of citizens of the United States against France. The French government coupled the treaty question with that of the spoliation claims and declined to settle the one without the other. The views expressed by Mr. Adams as to the treaty question were urged by Mr. Gallatin, particularly in a note of February 27, 1823. By Article VII. of the treaty of commerce between the United States and France of June 24, 1822, provision was made for the gradual abolition of all discriminating duties so that a perfect equalization was to be effected on October 1, 1827. In anticipation of that event Mr. Clay, as Secretary of State, on May 28, 1827, instructed Mr. Brown, Mr. Gallatin's successor, if France persisted in coupling the disputed question under Article VIII. of the Louisiana treaty with the settlement of claims, to propose the reference to arbitration of the question whether France was entitled to have refunded the alien duties collected on French vessels or their cargoes in Louisiana between the date of the treaty of cession and October 1, 1827. If the French demand was sustained, the arbitrators were to determine the amount to be refunded, and this amount was to be set off against the claims so far as it might go. Mr. Brown was, however, forbidden to include in the arbitration the subject of the claims. Mr. Clay's proposal did not lead to a settlement, although it was afterwards enlarged so as to include not only the question of reimbursement, but also the true construction and permanent operation of the contested article. On July 20, 1829, new instructions were sent by Mr. Clay's successor, Mr. Van Buren, to Mr. Rives, who had then been sent to represent the United States at Paris. These instructions reaffirmed the position of the United States, but limited the offer of arbitration to the question of reimbursement. "The claim by France," said Mr. Van Buren, " of permanent commercial privileges in the ports of Louisiana without an equivalent, and wholly independent of her own commercial regulations in respect of the vessels and productions of the United States, can never be voluntarily submitted to by them, and the President can not consent to put it in the power of any third party to determine that such shall be the case." November 8, 1830, Mr. Van Buren wrote to Mr. Rives that, if France should persist in coupling her national claim, as to Article VIII. of the Louisiana treaty, with the spoliation claims of citizens of the United States, a treaty might be concluded "stipulating a reciprocal and reasonable reduction of the duties upon French wines on their importation into the United States, taking proper care, however, that the stipulation for this reduction of duties does not conflict with our engagements to other nations, by which we are bound to impose no higher duties upon articles the produce of the soil or industry of those nations, than upon similar articles of other nations, when imported into the United States, and a correspondent reduction of the duties upon our cotton, when imported into France." This instruction was in substantial conformity with a proposition already made by Mr. Rives to the French government. July 4, 1831, Mr. Rives concluded a treaty on this basis. France agreed to pay 25,000,000 francs on account of American claims, while the United States agreed to pay 1,500,000 francs in settlement of certain French claims. The United States also agreed to reduce the duties on French wines, and in consideration of this France agreed to relinquish her claims respecting Article VIII. of the Louisiana treaty. Mr. Gallatin, min. to France, to Viscount Chateaubriand, Feb. 27, 1823, See Lawrence's Wheaton (1863), 494; 2 Lyman's Dip. ch. vi; and see Article II. of the treaty between the United States and Colombia, Arrangement with of October 3, 1824, provided for most-favored-nation was Colombia. treatment, freely if the concession was freely made or for the same compensation if it was conditional. Subsequently it was provided by a treaty between Colombia and Central America that discriminating duties should to a certain extent be abolished as between the two countries. Thereupon the American minister at Bogotá demanded the extension of the benefits of the treaty to vessels of the United States. The Colombian government "justly and naturally answered that the privilege given to Central America conceded on the condition of a reciprocal advantage, and that we could not claim to enjoy it without granting a reciprocal privilege to Colombian vessels in our ports." The justice of this was so apparent that the American minister at once concluded a reciprocal arrangement by which, in conformity with the provisions of the arrangement between Colombia and Central America, vessels of the United States and their cargoes which should "go direct" from ports of the United States were to pay no higher or other duties than Colombian vessels. As the acts of January 7, 1824, and May 24, 1828, empowered the President to issue his proclamation suspending discriminating duties only where all such duties were abolished by the foreign government, it was suggested that Congress should pass an act authorizing the President to exempt from duties in the United States Colombian vessels and their cargoes which should go directly from ports of that nation to the United States. Report of Mr. Livingston, Sec. of State, to the President, Jan. 9, 1832, 4, MS. Report Book, 319. An act was accordingly passed May 19, 1832, 4 Stat. 515. As to the question of refunding the discriminating duties charged on the |