Page images
PDF
EPUB

that, by the modern law of war and the practice of civilized nations under it, private property of non-combatants on land is exempt from seizure, confiscation, or destruction, and that this principle was fully recognized, in theory at least, by the United States in the exercise of their belligerent rights in the late civil war; that the article of cotton, the property of non-combatants, was no exception to this general principle, this in fact having constituted the great mass of the property the proceeds of which were allowed to be recovered in the Court of Claims; that as to non-combatant citizens the United States recognized the rule of the exemption of their private property from capture and destruction; and that as to neutral aliens, peaceably residing in the United States, upon the faith of treaties of amity and commerce, at least an equally favorable doctrine must be applied; that if, in any case, the capture or destruction of such property became a military necessity, such capture or destruction was accompanied by liability to compensation.

Her Majesty's counsel cited the case of the United States vs. Klein, in the Supreme Court of the United States, (13 Wall., 128;) also, the case of Mitchell vs. Harmony, in the same court, (13 How., 115;) also, the case of W. S. Grant vs. United States, (1 C. Cls., 41 ;) also, Brown vs. United States, (8 Cranch, 110;) also, Lawrence's Wheaton, Part IV, c. 2, pp. 586 to 626, 635n, 640n; Halleck, p. 546, § 12; Calvo, §§ 434, 436, 443, 444, 450; Vattel, pp. 368–9, § 173.

All the claims for cotton destroyed in the enemy's country, with a single exception, (that of A. R. McDonald, No. 42,) were disallowed by the unanimous voice of the commissioners.

Mr. Commissioner Frazer's views upon the questions involved in these cases are embraced in the opinions given by him in Nos. 41 and 225, heretofore referred to, and to be found in the appendix, F and G.

In the case of A. R. McDonald, Nos. 42 and 334, the commission made an award in favor of the claimant, Mr. Commissioner Frazer dissenting. In that case the cotton was alleged to have been purchased by the claimant principally in Ashley County, Arkansas, under permits issued by the proper officers of the United States Treasury, under the statutes regulating trade in the insurrectionary States, and the regulations of the Secretary of the Treasury made pursuant to said statutes, and to have been destroyed in the same region by United States forces under the command of General Osband, in February, 1865. These statutes and regulations only authorized trade in the insurrectionary States within the lines of military occupancy of the United States forces; and it was contended on the part of the claimants that the issuing of such permits by the Treasury officers was controlling evidence that the region covered by the permits, and within which the cotton was alleged to have been purchased and destroyed, was actually within the military lines of the United States.

On the part of the United States it was claimed that the evidence conclusively showed that at the time of the issuing of the permits in

question, and of the alleged purchases under the same, as well as at the time of the alleged destruction, the region where the cotton was situated was entirely outside the lines of military occupancy of the United States, and within the control, civil and military, of the confederate government; that the permits in question were irregularly and unlawfully issued; that they gave no authority to the claimant to purchase within the district in question; that the cotton was purchased, if at all, within the enemy's country, and under collusive arrangements between the claimant and the confederate cotton bureau; that the permits, even if valid when issued, afforded no protection to the cotton when actually within the enemy's lines at the time of its destruction; that the claimant, by his unlawful dealings with the enemy, had forfeited any possible right which he might have had under his alleged permits, and that the claim was, to a large extent, fraudulent, both as to the alleged purchase and destruction.

The entire claim of this claimant amounted, including interest, to over $3,000,000. The award was for the sum of $197,190, including interest. I am advised that, in the making of this award, the majority of the commission did not intend to depart from the principle held by them in the other claims for cotton destroyed; but that they regarded the permits as controlling evidence that the region where the cotton was situated was within the lines of Federal occupancy.

The case of John Turner, No. 44, included a claim for a dwellinghouse of the claimant, situated near the field of Fair Oaks, in Virginia, alleged to have been for several weeks occupied as a hospital by the army of General McClellan, in the spring of 1862. It was alleged by the claimant that large stores of medicines and hospital supplies had accumulated in this house, and that upon the retreat of General McClellan's army, it being impossible to save the stores so accumulated, the dwelling-house was burned, with its contents, by the Federal officers, in order to prevent these stores from falling into the hands of the enemy. The proofs substantially sustained these allegations.

An award was made in favor of the claimant, in which I am advised that the majority of the commission included an allowance in respect of the destruction of the house in question. Mr. Commissioner Frazer joined in the award; but in his computation of amount included nothing for the house. In no other case was any award made for the mere destruction of buildings within the insurrectionary territory not. permanently reclaimed to the possession of the United States; and this award was therefore an exceptional one, and not within the principle by which the commission was governed in other cases.

The cases of A. R. McDonald, Nos. 42 and 334; of John Turner, No. 44; and of J. & R. Martin, No. 434, were the only cases in which awards were made for the mere destruction of property within the insurrectionary States.

3.-Claims for property alleged to have been destroyed by the rebels.

In the case of John H. Hanna, No. 2, the memorial alleged in effect that the claimant was the owner of 819 bales of cotton, situated within the rebel States of Louisiana and Mississippi, and that "without fault of petitioner, against his consent, and by force and arms, said cotton was destroyed by rebels in arms against the Government of the United States prior to the year 1863." By the schedules annexed to his memorial and made a part of the same, it appeared that the cotton in ques tion was destroyed by orders of the authorities of the Confederate States and of the rebel State of Louisiana, for the purpose of preventing the same from falling into the hands of the Federal forces.

A demurrer to the memorial was interposed on behalf of the United States.

[ocr errors]

On the argument of the demurrer it was contended by Her Majesty's counsel, on behalf of the claimant, that the acts of destruction alleged in the memorial appearing to have been deliberately committed under the orders of the commander of the forces of the Confederate States, and with the concurrent authority of the governor of the State of Louisiana and commander of the troops of that State, reclamation must lie on behalf of the British government, in the interest of the claimant as a subject of that government, against the United States as representing and including the State of Louisiana, as well as all the other States forming the so-called Confederate States; that the persons engaged in these acts of destruction were not liable, either civilly or criminally, either for reparation or punishment in respect of those acts, they having been committed in the course of military operations under the authority of the existing government, whether lawful or usurped.

That for the wrongful acts of the several States in respect to foreign nations or their subjects, reclamation could be made only against the United States, to the Government of which, by its Constitution, was reserved the power of making treaties, declaring war, and making peace, and all international powers generally, the same being denied to the individual States; that no foreign nation could negotiate with or make demand upon individual States in respect of such acts, but could deal only with the Government of the United States; that in case of wrongs committed by any State upon foreign nations, in regard to which that State, if wholly independent and not a member of the Federal Union, would be liable to reclamation, and to be called to account in the mode practiced between nations-by treaty or by war-these remedies against such State being denied to foreign powers by the Constitution of the United States, the liability for reparation devolved upon the United States, and the Federal Government must be held to answer as well for the acts of the authorities of its several constituent States as for those of the Federal Government.

That the so-called secession of the State of Louisiana and the other States forming the so-called Confederate States did not extinguish or

suspend the liability of the United States for wrongful acts committed by said States.

That by the treaties of 1794, 1815, and 1827, the United States had stipulated with Great Britain for the protection of her subjects in the State of Louisiana, as well as in all other territory of the United States; that the United States not having allowed the claim of Louisiana to be released from her constitutional obligations and restrictions, but having held her to her constitutional obligations, and having insisted that their political relations with foreign powers were in no wise affected by the insurrection in the Southern States, and that the Government of the United States was rightfully supreme in Louisiana and the other States in rebellion, and having finally maintained its authority over those States, its liability to Great Britain for violation of these treaties by those respective States remained precisely as if there had been no insurrection or civil war.

Her Majesty's counsel further contended that, as a principle of international law, if the rightful government of a country be displaced and the usurping government becomes liable for wrongs done, such liability remains, and devolves on the rightful government when restored; that this principle equally applied when the usurpation was only partial; that the restored and loyal government of Louisiana was liable for wrongs done by the insurrectionary government of the same State; and that it was only by the provisions of the Constitution of the United States that the State of Louisiana was prevented from being compelled to discharge that liability toward foreign governments, and that on this ground the Government of the United States must be held respon sible for the acts of the State of Louisiana.

He cited in support of these propositions the treaties of 1815 and 1827 between the United States and Great Britain, (8 Stat. at L., p. 228, art. 1; id., 361, art. 1;) Phillimore, vol. 1, pp. 36, 94, 139; Wheaton, p. 77; Constitution of the United States, art. 1, sec. 10; Works of Daniel Webster, vol. 3, p. 321 ; id., vol. 6, pp. 209, 253, 265; U. S. Att. Gen. Op., vol. 1, p. 392; The United States vs. Palmer, 3 Wheat., Sup. Ct. R., 210; The Collector vs. Day, 11 id., 113, 124 to 126; The Prize Cases, 2 Black, 635; the treaty between the United States and Great Britain of August 9, 1842, (8 Stat. at L., 575, art. 5;) and the acts of Congress of December 22, 1869, (16 Stat. at L., 59, 60,) and of April 20, 1871, (17 id., 13 to 15.)

The argument on behalf of the United States was summed up as follows:

First. That whatever may be the relations of the separate States of the Union to the Government of the United States, it is manifest that no respon sibility can attach to the United States for the destruction of the claimant's property under color of the authority of the State of Louisiana, because its destruction was not authorized by any officials representing or authorized to represent or act for the State of Louisiana under the Constitution and laws of the United States. There can be no legitimate officers of a State to constitute its government, except such as have taken an oath to support the

Constitution of the United States. All others are usurpers and pretenders. But, further, a State of the Union has no political existence which can be or has been recognized by Great Britain, except as a part of the United States, in subordination to the National Government. The rebels, who, by usurpation, undertook to act for the State of Louisiana, declared their action to be in behalf of the State, which they claimed as a component part of another and hostile nation.

Secondly. The destruction of the claimant's cotton was done under the order of the commander of a military force engaged in hostilities against the United States, and whose acts Great Britain had recognized as those of a lawful belligerent, having all the rights of war against the United States that any foreign invader could have had. The men professing to act as the local authorities, in concurring in the order of destruction acted as the assistants and allies of the hostile and belligerent power, and subject to its control. It is as absurd to hold the United States responsible in the case of Hanna as it would be to hold France responsible for the destruction of the property of a British subject in the part of France held by the German armies in the late war, on the ground that a French official, at the head of some arrondissement or commune, might have joined in the order of the German forces for its being done, he having been put in office or retained there by the German forces for the very purpose, and having first renounced his allegiance to France and taken an oath of allegiance to Germany.

The commission unanimously sustained the demurrer in the following award:

The claim is made for the loss sustained by the destruction of cotton belonging to the claimant by men who are described by the claimant as rebels in arms against the Government of the United States.

The commissioners are of opinion that the United States cannot be held liable for injuries caused by the acts of rebels over whom they could exercise no control, and which acts they had no power to prevent.

Upon this ground, and without giving any opinion upon the other points raised in the case, which will be considered hereafter in other cases, the claim of John Holmes Hanna is, therefore, disallowed.

Mr. Commissioner Frazer read an opinion, which will be found in the appendix, H.

This was among the earliest of the decisions of the commission, and it is understood that in consequence of it a large number of claims of similar character awaiting presentation were never presented to the commission.

The cases of Laurie, Son & Co., No. 321; Samuel Irvin & Co., No. 322, and Valentine O'Brien O'Connor, No. 404, likewise arose out of property destroyed by the rebels; but in each of them it was attempted on the part of the claimants to take the case out of the decision in Hanna's case.

In each of the cases it was alleged that the claimant was the owner of tobacco stored in the State of Virginia at the breaking out of the rebellion; that, early in the year 1861, the ports of Virginia were blockaded under the proclamation of the President of the United States, and before the claimants could remove their property by land, the Congress of the United States, by act of 13th June, 1861, prohibited the transportation of merchandise from Virginia into the loyal States, except under license and permission of the President, and in pursuance of rules to be prescribed by the Secretary of the Treasury; and that

« PreviousContinue »