6. That, therefore, the act of March 12, 1863, neither gave any right which the parties had not before by settled principles of public law, nor purported to give a remedy commensurate with that right under the public law. That act was purely a municipal measure, dictated by considerations of domestic policy.

7. That, therefore, it is wholly immaterial to the determination of these international claims whether those parties had or had not a remedy under that statute, or did or did not avail themselves of such remedy. The Court of Claims in no degree exercised the functions or fulfilled the duties of this tribunal, whose obligations under the treaty and the public law must be discharged according to its own judgment and conscience in cases coming within the treaty, whether the Court of Claims, in executing the act of 1863, exercised or not a wholly distinct jurisdiction conferred upon it by that statute.

8. If under that statute the claimant has obtained a partial indemnity, the United States can only claim a credit for so much of the indemnity as the party has received in that form. In no other way, and to no other extent, can the proceedings in the Court of Claims affect the awards in these cases.

He cited 1 Kent's Com., 91; Mrs. Alexander's Cotton, 2 Wall., 404; United States vs. Klein, 13 Wall., 128; United States vs. Padelford, supra; Brown vs. United States, 8 Cranch, 110; Grant's case, (decisions C. Cls., October term, 1863 ;) Vattel, book 3, c. 5, § 75 ; c. 7, § 109.

The arguments of the respective counsel were filed in the cases of James B. McElhose, No. 225, and of Thomas Arkwright, No. 302. Many other cases were submitted under the same arguments.

The commission unanimously sustained the demurrers in the cases in which suit had been brought in the Court of Claims, whether still pending in that court, or on appeal, or previously decided, and dismissed those cases.

In the case of Elizabeth Knowles, No. 175, and other cases in which no suit had been brought in the Court of Claims, the commission (Mr. Commissioner Frazer dissenting) overruled the demurrers, and took jurisdiction of the claims upon their merits. Mr. Commissioner Frazer read a written opinion upon the questions involved in these cases, a copy of which will be found in the appendix, G.

2.-Claims for property alleged to have been wrongfully injured or destroyed by the forces of the United states.

These claims were also numerous, and involved a large variety of questions. They included claims for property injured or destroyed by the bombardment of towns of the enemy, as in the case of Charles Cleworth, No. 48; and in other ordinary operations of war, such as the passage of armies, the erection of fortifications, as in the case of Trook, administrator, No. 58, &c. Also, claims for property available to the enemy for military purposes, or for the prosecution of the war, and purposely destroyed in the enemy's country as a means of weakening the enemy, as in the cases of Samuel H. Haddon, No. 107, and John Murphy, No. 326. Also, for property incidentally involved in the destruction of public stores, works, and means of transportation of the

enemy, as in the cases of John K. Byrne, No. 200; Charles Black, No. 128, and A. K. McMillan, No. 250. Also, for timber felled in front of forts and batteries to give clear range for the guns and deprive the enemy of cover, as in the cases of Trook, administrator, No. 58, and of William B. Booth, No. 143. For property alleged to have been wantonly and without provocation or military necessity destroyed or injured in the enemy's country, as in the cases of Anthony Barclay, No. 5; Godfrey Barnsley, No. 162, and in the Columbia cases.

In these claims for destruction of property, it may be stated generally that, with very few exceptions, and those mostly insignificant, no awards were made against the United States.

The claims for injuries by bombardment, the passage of armies, the cutting of timber to clear away obstructions, the erection of fortifications, &c., in the enemy's country, were all disallowed by the unanimous voice of the commissioners.

The same may be said of the incidental destruction of innocent property involved in the destruction of public stores and works of the enemy.

In several cases there were allegations of the wanton destruction of property by United States troops, and in some cases satisfactory proof was made of the fact of such destruction by soldiers without command or authority of their commanding officers, and in defiance of orders.

In the case of Anthony Barclay, No. 5, allegations were made of wanton destruction of property, including valuable furniture, china, pictures, and other works of art, books, &c. The proof was conflicting as to whether the injuries alleged were committed by soldiers or not; but if committed by soldiers, it was plainly not only without authority, but in direct violation of the orders of General Sherman. In the award made in favor of Mr. Barclay, I am advised that nothing was included for property alleged to have been destroyed.

Several claims were brought for property alleged to have been destroyed by the burning of Columbia, on the allegation that that city was wantonly fired by the army of General Sherman, either under his orders or with his consent and permission. A large amount of testimony was taken upon this subject, including that of General Hamp.ton and other confederate officers on the part of the claimants, and of Generals Sherman, Logan, Howard, Woods, and other Federal officers on the part of the United States. The claims were all disallowed, all the commissioners agreeing.

I am advised that the commissioners were unanimous in the conclusion that the conflagration which destroyed Columbia was not to be ascribed to either the intention or default of either the Federal or confederate officers. The commission did not pass on the question whether, in case the city had been burned by the order or permission of the com

manding officer, any liability for resulting losses would have existed. against the United States.

The claim of Henry E. and Alfred Cox, No. 229, was for a saw-mill and its motive-power, machinery, &c., destroyed by raiding parties from General Sherman's army, near Meridian, Miss., in February, 1864. The expedition by which the mill was destroyed was sent out by General Sherman for the express purpose of destroying the confederate mills, supplies, railroads, and means of transportation.

The proofs showed that the saw-mill in question had been actually employed in the sawing of railroad-ties for the confederate government, and was available for this and similar purposes.

On the part of the defense it was claimed that the destruction was a lawful act of war.

The claim was unanimously disallowed.

The case of William Smythe, No. 333, was a claim for an iron and brass foundry, machine-shop, and machinery, fixtures, supplies, &c., for same, destroyed by General Sherman in Atlanta, after the capture of that city, and before his advance upon Savannah. The establishment had been employed in the manufacture of shot, shell, and other military supplies for the confederate government.

The claim was unanimously disallowed.

The case of James and Richard Martin, No. 434, was a claim for the value of the British ship York, which, in January, 1862, on a voyage in ballast from Valencia, Spain, to Lewistown, Delaware, was alleged to have been driven ashore on the coast of North Carolina, one of the insurrectionary States, and, while there stranded, to have been destroyed by United States cruisers.

The proofs satisfactorily established that the vessel was actually wrecked without intent of her officers, and while on a lawful voyage. An officer of the United States Navy, believing her to have been intentionally beached for the purpose of running in her cargo for the use of the enemy, and that the cargo, with the rigging and furniture of the vessel, was actually available to the rebels, boarded and burned her.

The commission made an award for her value in favor of the claimants, in which all joined.

The case of James A. Macaulay, No. 260, was a claim for certain cotton, the cargo of the steamship Blanche, which was alleged to have sailed from the port of Lavaca, Tex., in June, 1862, and on her voyage to Havana to have been pursued by the United States war-vessel Montgomery, commanded by Lieutenant Hunter, to have run aground on the coast of the island of Cuba, and, while so aground, to have been boarded by the crew of the Montgomery, set on fire, and, with her cargo, totally destroyed.

The case was unanimously disallowed for lack of proof of the mate rial allegations in the memorial.

A large number of claims was brought for cotton destroyed by the United States forces at various points in the insurrectionary States. Among these were the cases of Brown & Sharp, No. 33; John Cairns & Co., No. 39, and several others, for cotton destroyed at Camden, S. C.; of George Collie, No. 458; Christopher Atkinson, No. 380, and others, at Columbia, S. C.; of Samuel Hall Haddon, No. 107, in Screven County, Georgia; of Alexander Collie, No. 376, at Oxford, Ga.; of A. R. McDonald, No. 42; John C. Forbes, No. 300, and others, in Arkansas and Louisiana; and various other claims for like alleged destruction at different points.

In several of these cases the proof was clear and undisputed that the cotton was destroyed under express orders of the commanding officers, and for the purpose of preventing it from falling into the hands of the enemy, and of weakening the resources of the enemy. In other cases questions of fact were in dispute, as to the fact of destruction by the United States forces; as to such destruction, if committed, being by order or authority of any competent officer; as to the title of the claimants to the cotton alleged to have been destroyed; and as to whether the cotton, when destroyed, was within the enemy's country.

The question as to the right of the United States to destroy cotton of private owners in the enemy's country was discussed by the counsel of the United States in his arguments filed in the cases of S. H. Haddon No. 107, and of Brown and Sharp, No. 33; and to some extent in several other cases.

On the same subject arguments were filed by Her Majesty's counsel and by counsel for the respective claimants in the cases of S. H. Haddon, No. 107; Brown and Sharp, No. 33; David Jacobs, No. 236; Martha M. Calderwood, No. 360; John W. Carmalt, No. 89; Wood & Heyworth, No. 103; James Borron, No. 144, and in some other cases.

On the part of the United States it was maintained that a belligerent might lawfully in the enemy's country destroy any property, public or private, the possession or control of which might in any degree contribute to sustain the enemy and increase his ability to carry on the war. That the occasion for such destruction and its extent must always be left solely to the discretion of the invading belligerent, who is of neces sity the sole judge as to the requirements of his military position, and of the necessity or propriety of the destruction of property, and of the extent to which such destruction shall be carried. That the actual ownership of such property within the enemy's country by the subjects of a neutral power, whether domiciled within the enemy's country or not, did not relieve such property from its liability to such destruction. That cotton in the insurrectionary States was peculiarly and eminently a legitimate subject for such destruction, from its relation to the enemy's

government, as the great staple from which were derived the principal means of that government for the carrying on of the war, which was the principal basis of its credit, the source of its military and naval supplies, and on which it relied to maintain its independent existence and to carry on the war against the United States. That the control of this staple as to production, sale, and exportation, had been, to a large extent, assumed by that government. That by the laws, military orders, and practice of the Confederate States and their authorities, the destruction of cotton, whenever likely to fall into the hands of their ene mies, was enjoined and practiced, and that this practice of the confederate government and its officers had received the express and formal approval of the British government as a legitimate practice under the laws of war.

Proofs were made in the case of Wood and Heyworth, No. 103, (proofs for defense, pp. 16, 20, 24, 37 to 47, 51 to 65,) of the statutes of the confederate government in regard to their control of this staple, and in regard to its destruction when necessary to prevent its falling into the hands of the enemy; of the practice of the confederate government in controlling its production, sale, and exportation; of the acts of its president and other executive and administrative officers in this regard, and of the military orders and practice under the same for its destruction when exposed to capture by the enemy. Other proofs in regard to this practice of destruction by the confederates were made in the cases of James Cumming, No. 94; A. R. McDonald, No. 42, and various other cases.

The counsel for the United States, in his arguments, cited the letter from Earl Russell to Lord Lyons of 31st May, 1862, from the British Blue Book relating to the United States, 1863, vol. 2, p. 33, in which his lordship said:

Mr. Seward, in his conversation with your lordship, reported in your dispatch of the 16th instant, appeared to attribute blame to the confederates for destroying cotton and tobacco in places which they evacuate on the approach of the Federal forces. But it appears to be unreasonable to make this a matter of blame to them, for they could not be expected to leave such articles in warehouses to become prize of war, and to be sold for the profit of the Federal Government, which would apply the proceeds to the purchase of arms to be used against the South.

He cited also Vattel, (Am. ed. of 1861,) pp. 364 to 370, §§ 161 to 173; the case of Mrs. Alexander's cotton in the Supreme Court of the United States, (2 Wall., 404, 420;) and the opinion of Sir Hugh Cairns and Mr. Reilly, given in March, 1865, on the application of the Canadian government, and published in the "Saint Albans Raid," compiled by L. N. Benjamin, Montreal, 1865, page 479, as follows:

Though in the conduct of war on land the capture by the officers and soldiers of one belligerent of the private property of subjects of the other belligerent is not often in ordinary crises avowedly practiced, it is yet legitimate.

In the arguments filed by Her Majesty's counsel in the cases of Brown and Sharp, No. 33, and Samuel H. Haddon, No. 107, it was maintained