John Bigler, Minister of the United States to Chile, in which he undertook to say to the Minister of Foreign Relations for Chile that the circumstances of the case were such that he was unable to perceive any grounds upon which a claim founded upon the brig Townsend Jones could then be sustained agaist the Chilean Government.

This communication is dated Santiago, Chile, April 22, 1861. That statement certainly should not affect the merits of this case. Mr. Bigler had no authority to give such an opinion of the case. He could not bind the owner in any way. What he says was, that under the proofs as they stood then "that there is not, at this date, any claim founded upon the case of the Townsend Jones, under the control of this legation, or which the undersigned is authorized to press upon the consideration of your Excellency's Government.”

So far as appears, there was nothing at that time in the case to show the conspiracy of the captain against his owner, and certainly there was nothing appearing to Mr. Bigler which showed the method which had been adopted in order to induce Janvrin to make his perjured statement, which was procured for the very purpose of preventing the United States Government from pressing this claim.

It appears, therefore, from the foregoing that the real purpose in seizing and transporting this ammunition to the shore and detaining it, as was done, was for the purpose of having the possession of the same to prevent it from falling into the hands of the insurgents during the struggle then in progress, and so that the Government, if need be, might use them for its own purposes. When the authorities found that it was not necessary to use them for the armament of the Government's forces, and when the crisis was over, then they at once sought to place them again in the hands of the owner, after his sale to Mexico had undoubtedly been lost. The Chilean authorities continued to refuse to give any' receipt showing the condition in which the cargo was when seized by them, and on September 30, 1859, they took for

mal proceedings to show that the ship and cargo were held by the Government as its property absolutely.

If the Government of Chile seized this property for the purpose, as above indicated, of preventing it from falling into the possession of the insurgents, and I believe the evidence fully warrants that conclusion, then if the insurrection had continued for six months or a year longer they would not have restored it until the emergency had passed.

A seizure of property for such a purpose is always a conversion of it to the use of the Government, just as it would be if the property were seized by an individual for his own

use.

No offer to return the property, after such conversion, will relieve it from paying the value thereof to the owner any more than it would relieve an individual under like circumstances from making full compensation.

If a government seizes property and retains it in its posession, then the failure to libel or to bring an action for condemnation and forfeiture for violation of its laws-if there be such violation-makes such government, under international law, liable to the claimant whose property is thus seized and confiscated without warrant and without due process of law.

The Franklin, Moore, Dig. Int. Arb. 3783.
The Labuan,

66

66

3791.

The exigencies of war may justify the seizure and appropriation of private property of a neutral for the use of a belligerent, but it is only on condition of compensation for the loss.

If the ship and owner had violated any law, the ship and cargo could not be seized and detained without trial except

on condition of payment therefor by the respondent Gov

ernment.

The Franklin (supra.)

The Labuan, Moore, 3791.

Consonno v. Persia, Moore, 5020.

The Phare, Moore, 4870-4873.

There cannot be a particle of doubt, from the proofs in this case, that Mr. Murphy was deprived of a very valuable property, and lost it by reason of the course pursued by the authorities of Chile in taking absolute possession of this ship and her cargo, which they afterwards confirmed on September 30, 1859, by taking every formal step which it was usual for the Chilean Government to take to assert its dominion and ownership over such property,

In view of all the facts in this case, these claimants are entitled to a most substantial award.

Attest:

WM. G. GAGE,

Commissioner on the part of the United States.

JOHN F. BAKER,

ELIODORO INFANTE,

Secretaries.

Delivered June 8, 1901.

In the above-entitled case a majority of the Commission decides that the amount retained by the Chilean telegraph administration, based upon the decree of October 22, 1891, said amount representing the two-cent tax on messages retained by the said administration between October 22, 1891, and September 1, 1893, to the retention of which amount the company objects, should be repaid to the said company by the Government of Chile, together with interest on monthly balances, at six per cent., to April 9, 1894, the date when the former Commission expired by limitation, and the majority of the Commission therefore awards to the claimant said amounts, being the sum of three thousand seven hundred and eighty-two dollars and forty-three cents, United States gold coin, together with two hundred and seventynine dollars and eighty-six cents interest as aforesaid, which