To the Honorable Hamilton Fish, Secretary of State:
The undersigned, agent of the United States before the commission upon the claims of subjects of Her Britannic Majesty against the United States, and of citizens of the United States against Great Britain, established by the twelfth article of the treaty between the United States and Great Britain of 8th May, 1871, respectfully submits the following report of the proceedings and results of that commission:
Articles 12 to 17, inclusive, of the treaty above referred to, contain the provisions establishing the commission and regulating its jurisdiction, powers, and methods of proceeding. Those articles are found in the appendix to this report, A.
The Honorable James Somerville Frazer, of the State of Indiana, formerly a justice of the supreme court of that State, was named as commissioner by the President of the United States.
The Right Honorable Russell Gurney, member of Parliament, member of Her Majesty’s privy council, and recorder of London, was named as commissioner by Her Britannic Majesty.
Count Louis Corti, envoy extraordinary and minister plenipotentiary to the United States of His Majesty the King of Italy, was named as the third commissioner by the President of the United States and Her Britannic Majesty conjointly.
Robert Safford Hale, esq., of the State of New York, was named by the President of the United States agent of the United States to attend the commissioners, to present and support claims presented on behalf of his Government, to answer claims made upon it, and to represent it generally in all matters connected with the investigation and decision of such claims, pursuant to the provisions of the thirteenth article of the treaty. Mr. Hale acted also as counsel for the United States under the same article.
Henry Howard, esq., one of Her Britannic Majesty’s secretaries of legation at Washington, was named by Her Majesty’s government as the agent of that government for the like purposes, pursuant to the same article.
James Mandeville Carlisle, esq., of the city of Washington, U. S. A., was employed as the counsel of Her Britannic Majesty’s government before the commission.
The commissioners and agents and counsel above named continued in the execution of their respective duties to the close of the commission.[Page 8]
The commission first met and organized at Washington on the 26th day of September, 1871, each of the commissioners making and subscribing the “solemn declaration” provided by the twelfth article of the treaty.
Count Corti was requested, by vote of the commission, to preside during its deliberations, and continued to act as presiding commissioner during the entire existence of the commission.
Thomas Campbell Cox, esq., of the District of Columbia, U. S. A., was duly appointed by the commission as its secretary, and continued to act as such to the close of the commission.
The commission, at an early session, adopted rules for the course of proceedings before it, including the manner of presentation, prosecution, and defense of claims, the taking of testimony, and the printing and presentation of the evidence and arguments, a copy of which rules, with such slight modifications as were from time to time afterward ad opted, is found in the appendix, B.
Within the time limited by the treaty, nineteen claims were presented on the part of citizens of the United States against Great Britain, aggregating, exclusive of interest, a little less than $1,000,000. These claims, as will be seen by the detailed report hereinafter given, were all disallowed by the commission.
Within the same time were presented four hundred and seventy-eight claims of subjects of Her Britannic Majesty against the United States, aggregating, exclusive of interest, about $60,000,000, and, including interest for the average time allowed by the commission, about $96,000,000. Of these claims, one was dismissed by the commission on account of indecorous and improper language used in the memorial, without prejudice to the filing of a new memorial, which was subsequently filed; thirty were dismissed as not within the jurisdiction of the commission; two hundred and fifty-eight were disallowed on the merits; eight were withdrawn by Her Britannic Majesty’s agent, by leave of the commission; and in one hundred and eighty-one, awards were made in favor of the claimants respectively against the United States, such awards aggregating $1,929,819.
The entire amount of the awards against the United States, including interest, allowed by the commission was, therefore, as will be seen, a trifle over two per cent, of the entire claims presented to the commission, on behalf of British subjects, against the United States, including interest.
Of the claims of citizens of the United States against Great Britain, twelve grew out of the Saint Albans raid, so called, and were for acts of plunder alleged to have been committed by confederate soldiers in the town of Saint Albans, Vt., in October, 1864; one was for a like raid of confederate soldiers alleged to have been committed upon Lake Erie in September, 1864, and for injuries to the American steamers Philo Parsons and Island Queen, and the property of American citizens on board said steamers; four were for damages by reason of the alleged [Page 9] detention of vessels laden with saltpetre at Calcutta, in January and February, 1862, under ordinances of the governor-general of India prohibiting the exportation of saltpetre; one was for alleged injuries to the property of the claimant on the island of San Juan, in Washington Territory, U. S. A., in 1862 and 1864, by the alleged actor procurement of the commander of the British forces on that island, during the joint military occupation of the same by the United States and Great Britain, under a convention between them for that purpose; and one was for a royalty claimed to be due to the claimant from the British government by reason of the adoption and use by that government of a certain invention of the claimant, a citizen of the United States, for the improvement of breech-loading fire-arms.
Of the four hundred and seventy-eight British claims presented, two hundred and fifty-nine covered claims for property of British subjects alleged to have been taken by the military, naval, or civil authorities of the United States and appropriated to the use of the Government of those States; one hundred and eighty-one covered claims for property of British subjects, alleged to have been destroyed by the military and naval forces of the United States; seven covered claims for property of British subjects alleged to have been destroyed by the rebel or confederate forces carrying on war against the United States; one hundred covered claims for damages by reason of the alleged unlawful arrest and imprisonment of British subjects by the authorities of the United States; seventy-seven covered claims for damages by reason of the alleged unlawful capture and condemnation or detention of British vessels, their cargoes, &c, as prize of war by the naval forces and civil authorities of the United States; three covered claims for damages by reason of the alleged unlawful warning off of British vessels from the coasts of the States in rebellion by the United States cruisers, in the absence of any lawful blockade of the coasts and ports from which the vessels were so warned; and thirty-four covered claims of miscellaneous character.
Many of the memorials singly included claims coming under two or more of the classes above named, a fact which explains the excess of the sum of the different classes above named over the entire number of memorials filed.
A schedule of the American and British claims, respectively, in their order as filed and numbered, showing the names of the claimants, the nature of their respective claims, and the time and place where they arose, the amounts claimed, and the final disposition of the same, will be found in the appendix, C. This schedule is accompanied by alphabetical indexes, giving separately the names of the citizens of the United States claimants against Great Britain, and of the subjects of Her Britannic Majesty claimants against the United States, with reference to the number designating the claim of each person; and also by another alphabetical index referring to the vessels in respect of which damages [Page 10] were claimed, and the numbers of the cases in which such claims were made.
The commission continued its sessions in the city of Washington from the day of its first meeting, with adjournments from time to time, down to the 10th day of May, 1873; on which day, under the authority of a supplemental article to the treaty concluded between the two governments, and authorizing the sessions of the commission elsewhere than in the city of Washington, it adjourned to meet at Newport, in the State of Rhode Island, on the third day of June following. On the last-named day it again met at Newport, and continued its sessions without interruption, except by adjournments from day to day, until the 25th day of September, 1873. On the last-named day, having finally decided and disposed of every claim pending before it within the time limited by the treaty, the commission made and signed in duplicate its final award, signed by all the commissioners, a copy of which will be found in the appendix, D.
Separate awards in duplicate were made and signed by the commissioners, in respect of each claim finally passed upon by them, as the cases were respectively disposed of.
The duplicate original final awards, as well as the duplicate original individual awards in the case of each claimant, were delivered by the commission, through its secretary, to the respective governments, together with duplicate journals of the entire proceedings of the commission, kept by the secretary and certified from day to day by the presiding commissioner.
The entire number of cases, American and British, decided by the commission (after deducting the eight claims withdrawn by Her Majesty’s agent) was four hundred and eighty-nine. All the commissioners united in the awards in three hundred and seventy-two cases; in ninety-seven cases the awards were signed by Count Corti and Mr. Commissioner Gurney only, Mr. Commissioner Frazer dissenting; and in twenty cases the awards were signed by Count Corti and Mr. Commissioner Frazer only, Mr. Commissioner Gurney dissenting.
In the following pages I have attempted, to the best of my ability, to report the various principal questions which arose before the commission, giving a succinct statement of the allegations and proofs of the respective parties upon such questions, the arguments by which the respective claims were supported and opposed, the authorities cited by the respective counsel, and, as far as practicable, the principles established by the respective decisions of the commission. In but a very small proportion of the whole number of cases decided were the grounds of the decision stated in the record or by written opinions of the several commissioners. Wherever the grounds of the decision appear in the record itself, I have carefully given the language of the record.
Mr. Commissioner Frazer has kindly furnished me with copies of a few opinions pronounced by him before the commission, some of them [Page 11] expressing the views of the commission, or a majority of it, and others dissenting opinions in cages in which his views were overruled by his associates upon the commission. I have deemed these opinions of either class worthy of preservation, and have accordingly inserted them either in the body of my report under the respective cases in which they were delivered, or in the appendix. A very few written opinions are understood to have been delivered by Count Corti and by Mr. Commissioner Gurney, copies of which I regret that I have been unable to obtain for publication with this report.
I proceed to consider the various principal questions which arose and were disposed of before the commission in their order.
i—jurisdiction as to the person.
Various questions as to the jurisdiction of the commission, in respect both of the persons entitled to a standing as claimants under the treaty and to the subject-matter of the claims, arose and were disposed of in the course of the proceedings. These questions, so far as relates to the jurisdiction of the commission as to the persons entitled to claim under the treaty, may be summed up as follows:
1. The question early arose in several cases as to the sense in which the respective expressions “citizens of the United States” and “subjects of Her Britannic Majesty” were used in the treaty. This question was raised by demurrer in several of the early cases, and was argued at length in the case of Anthony Barclay vs. The United States, No. 5.
This claim was brought for the alleged taking and destruction of and injuries to real and personal property of the claimant, situated near Savannah, by the army of General Sherman, in December, 1864. The memorial alleged the claimant to have been a native-born subject of Her Britannic Majesty, but to have been domiciled for many years prior to the year 1858 within the United States, a portion of that time as Her Majesty’s consul in the city of New York, and from that time forward to the end of the war a resident of Chatham County, Georgia.
A demurrer was interposed to the claim on the ground, among others, that “the claimant, having been at the time of the alleged acts domiciled and engaged in trade and business within the enemy’s country, cannot claim the position of a subject of Her Britannic Majesty within the twelfth article of the treaty.”
Under this demurrer, the counsel for the United States contended that, under the twelfth article of the treaty, the terms “citizens of the United States” and “subjects of Her Britannic Majesty” were to be taken not in their strict meaning, under municipal law, of absolute citizenship for all purposes, or of paramount allegiance to a sovereign, but in the larger sense recognized by international law, in which sense it was contended that all persons were included within those respective expressions who by permanent domicile were within the protection of [Page 12] the government under which they resided, and who thereby owed to the country of their domicile that allegiance, perhaps temporary and qualified, exacted by such domicile. In other words, it was contended that within the terms of the treaty all persons permanently domiciled within the United States were to be taken as citizens of the United States, and all persons permanently domiciled within the jurisdiction of Great Britain were to be taken as subjects of Her Britannic Majesty.
The counsel for the United States cited in support of this doctrine the following elementary writers: Twiss’ Law of Nations, (war,) 233, 298–9; id., 82, 83; 3 Phillimore, 603; 1 Kent’s Com., 74; 2 id., 63; Lawrence’s Wheaton, 557 to 567; Calvo’s Derecho International, 526 to 536; Halleck, 702, 705, 717; 3 Greenleaf’s Ev., § 239; Story’s Conflict of Laws, § 68.
He cited, also, from the British and American reports in admiralty and prize cases, the following: The Indian Chief, 3 Rob., 12, 22; The Citto, id., 38; The Harmony, 2 id., 322; The Bernon, 1 id., 102; The Noyade, 4 id., 251; The Danous, id., 255, n.; The President, 5 id., 227; The Anna Katherina, id., 167; The Matchless, 1 Hagg. Adm., 97; The Schooner Nancy, Stewart’s Rep., (Nova Scotia, Vice-Admiralty,) 49; The Pizarro, 2 Wheat., 227; The Charming Betsey, 2 Cranch, 64; The Venus, 8 id., 253; The Francis, 1 Gall., 314; The Ann Green, id., 274; The Joseph, id., 545, 568; Mrs. Alexander’s Cotton, 2 Wall., 417; The Venice, id., 274; The Peterhoff, 5 id., 60.
Also, from the common-law reports: Marryatt vs. Wilson, (in Ex. Ch.,) 1 B. & P.; S. C., (in King’s Bench,) 8 T. R., 31; McConnell vs. Hector, 3 B. & P., 113; Tabbs vs. Bendelack, id., 207, n.; Bell vs. Reid, 1 Maule & Selwyn, 726; Albretcht vs. Sussman, 2 Vesey & Beames, 322.
Also, from the British Privy Council cases, on questions arising under the treaty of 1814 between Great Britain and France; The Countess of Conway’s case, 2 Knapp P. C. Rep., 364; Drummond’s case, 2 id., 295.
He also cited the case of the Messrs. Laurent, decided by the umpire, Mr. Joshua Bates, under the convention of 8th January, 1853, between the United States and Great Britain, given in the report of the commissioners under that convention, Senate documents, first and second sessions, Thirty-fourth Congress, vol. 15, No. 103, p. 120.
Also, the decisions of the commissioners under the treaty of Guadalupe-Hidalgo, 2d February, 1848, between the United States and Mexico, in the cases of Clow, Powell, Cook, Haggerty, Davis & Co., and Barkley, administrator, in manuscript in the State Department.
Also, the correspondence of the British foreign office, relating to the cases of Kirby, Smith, Rothschild, Ashburnham, Stewart, and others, printed in the British Blue Book of 1871, Paper No. 4, on the Franco-German war.
Also, from the parliamentary debates, the speeches of Lord Palmerston, Hansard, third series, vol. 146, p. 41; of Sir Richard Bethell, id., 49; and of Lord John Russell, id., 56, on the Grey town case. Also, the [Page 13] speech of Lord Palmerston on the question of compensation tor property of British merchants destroyed at Uleaborg, id., 1045, 1046.
He also cited the letter of Mr. Marcy, Secretary of State of the United States, to Count Sartiges, the French minister, Ex. Doc. No. 9, Senate, Thirty-fifth Congress, first session; and Earl Clarendon’s citation of same, Hansard, third series, vol. 146, p. 53. Also, Lord Palmerston’s speech on the case at Leghorn, Hansard, third series, vol. 113, p. 635; and the note on the same case in Vattel, Guillaumin’s ed., 1863, vol. II, p. 49; and the dispatch from Prince Swartzenburg to Baron Hatter, of 14th April, 1850; and from Count Nesselrode to Baron Brunow, of 2d May, 1850, cited in Torres Caicedo Union Latino Americano, pp. 343, 348. Also, the opinion of Attorney-General Stanbery on the bombardment of Valparaiso, Attorney-General’s Opinions, vol. 12, p. 21; also, Professor Bernard’s “Neutrality,” pp. 443, 444 to 457, n.
Her Majesty’s counsel, on the other hand, cited on this point the decision of Dr. Lieber, the umpire of the commission under the convention of 4th July, 1868, between the United States and Mexico, in the cases of Anderson and Thompson, and of the Messrs. Barron. Also, the case of the Charming Betsey, 2d Cranch, 120; Phillimore, part 5, cap. 1; Grotius, lib. 2, cap. 25; Vattel, lib. 2, cap. 6, sec. 7; id., lib. 2, cap. 17, sees. 263, 270; Wheaton, 355; Kent, vol. 1, sec. 4; the Constitution of the United States, Art. 3, sec. 2; the Judiciary act of the United States of 1789, (1 Stat, at L., 76, 78, sees. 9, 11;) the act of 27th June, 1868, (15 Stat, at L., 243;) the abandoned and captured property act of 12th March, 1863, (12 Stat, at L., 820;) the correspondence between Lord Lyons and Mr. Seward in relation to the case of Henry E. Green, United States diplomatic corr., 1863, part 1, pp. 515, 570; and the annual message of President Lincoln to Congress, of December, 1863, official publication, pp. 2, 4.
The commission overruled the demurrer of the United States by the following decision, rendered on the 16th December, 1871, in which all the commissioners concurred:
The first thing to be decided in this case is whether the commissioners have jurisdiction, which depends upon whether the claimant is, within the meaning of the treaty, a British subject.
That he is in fact a British subject there is no doubt; but it is contended that, being domiciled in the United States, he is not one of those intended by the framers of the treaty to be included in that term. It is undoubtedly true, as appears from various cases cited in the argument, that the subject or citizen of one state domiciled in another acquires, in some respects, privileges, and incurs liabilities, distinct from those possessed in right of his original birth or citizenship. But he still remains the subject or citizen of the state to which he originally belonged, and we see no reason to suppose that it was the intention of either government to put the limited meaning on the words “British subject,” contended for in the arguments in support of the demurrer so as to exclude from our jurisdiction a British subject who has never renounced his original allegiance, or become naturalized in any other country.
The fact of the claimant having his domicile in one of the Confederate States will, of course, have a material bearing on the point, also raised in the demurrer, as to the [Page 14] liability of the claimant’s property to seizure or destruction by the Federal Army. It is difficult to lay down a general rule applicable in all cases to the rights of an invading army, nor, in this particular case, is that necessary.
The statements contained in the memorial are, for the purposes of this argument, to be assumed to be true. One of the statements in the memorial is, that part of the claimant’s property was taken possession of by the Federal Army without any military necessity, convenience, provocation, or inducement, and plundered, and that part was wantonly destroyed.
Supposing this to be true, we are not prepared to say that some liability might not be established against the United States Government.
The demurrer is, therefore, disallowed; but the United States Government will be at liberty, if they think fit, to take issue upon the facts alleged in the memorial.
In the case of James Crutchett vs. The United States, No. 4, a claim for property taken and appropriated by the United States in the District of Columbia, the memorial showed the claimant at the time of the alleged injuries, and for many years previous, domiciled at Washington.
A demurrer was interposed specifying, among other grounds, that the claimant, being so domiciled within the United States, was not entitled to the standing of a British subject within the treaty.
The case was submitted on this point upon the authorities cited in Barclay’s case, as above noted, and the demurrer was overruled.
The decisions of the commission in these and other similar cases established the doctrine that, so far as relates to the question of jurisdiction, the national character of the party is to be determined by his paramount allegiance, where that is not double, irrespective of the fact of domicile.
In the case of George Adlam vs. The United States, No. 40, it appeared from the memorial, in addition to the fact of domicile within the insurrectionary States, that the claimant had taken the preliminary steps toward naturalization under the statutes of the United States, by filing his declaration on oath of his intention to become a citizen of the United States, and to renounce all allegiance to Her Britannic Majesty, the sovereign of his nativity.
The counsel for the United States on demurrer claimed that such oath, added to the fact of domicile, established the national character of the claimant as a citizen of the United States within international law, and barred him from any standing as a British subject under the treaty.
The demurrer was overruled.
In the case of Joseph Gribble vs. The United States, No. 116, the proofs on the part of the defense showed that the claimant, who had filed his declaration of intention, under the naturalization act, before the presentation of his memorial, had subsequently, and pending his claim before the commission, completed his naturalization, and was at the time of the submission of his cause a citizen of the United States. His claim was disallowed on the merits; but the undersigned is advised that the commission was unanimous in the opinion that his naturalization had deprived him of a standing before the commission as a British subject.[Page 15]
In the case of John W. Sharpe vs. The United States, No. 92, the claimant’s proofs showed that he had exercised rights of citizenship of the United States, by voting, prior to the presentation of his memorial.
The counsel for the United States contended, first, that such acts constituted an estoppel against the claim of the claimant to a standing as a British subject under the treaty; and, second, that if strictly and technically there was no estoppel, such acts were to be regarded as very strong evidence of the fact of naturalization, and sufficient to overcome the claimant’s own denial on oath of such naturalization.
An award was made in favor of the claimant, Mr. Commissioner Frazer dissenting; and the objection on the part of the United States was thus overruled.
In the case of Robert Eakin vs. The United States, No. 118, the proofs showed that the claimant had, in 1857, in the State of Mississippi, exercised acts of citizenship of the United States by holding an office, which, under the laws of Mississippi, could only lawfully be held by a citizen of the United States$ and that he had, in 1862, the State of Mississippi being then in rebellion against the United States, held a like office, which, by the then laws of Mississippi, could only be held by a citizen of the Confederate States.
The counsel for the United States contended that the claimant was, by each of these acts, debarred from a standing as a British subject.
The claim was disallowed without a separate and distinct decision of this question; but the undersigned is advised that a majority, at least, of the commission were of opinion that such holding of office under the rebel government was of itself a violation of neutrality, and debarred the claimant from a standing before the commission.
In the case of the executors of Robert S. C. A. Alexander vs. The United States, No. 45, the memorial showed the claimants’ testator to have been born in the United States in 1819, but alleged him to have been the son of Robert Alexander, a native of Scotland, and a natural-born subject of the British Crown. It also alleged that the testator had always held and claimed himself to be a liege subject of the British Crown, and that he had always been so held and regarded by all others. That in his early youth he had returned to Scotland, and there for many years held office in the commission of the peace and other posts of trust under the British Crown. That during the war his residence was partly in Scotland and partly in Kentucky, he having died in Kentucky in December, 1867. The claim was for the occupation of and injuries to lands and real estate of the testator in Kentucky by United States troops during the war.
On demurrer it was contended, on the part of the United States, that the claimants had no standing before the commission in the right of their testator as a British subject; that, although by the law of Great Britain he was a British subject, he was also by the laws of the United [Page 16] States a citizen of those States; and that, in such a case of double or conflicting allegiance, the claimant was not to be regarded as a subject of Great Britain within the meaning of the treaty.
The counsel for the United States cited the Revised Statutes of Kentucky, vol. 1, p. 238, c. 15, art. 1, sec. 1, as establishing the fact of citizenship under the law of Kentucky; and also Drummond’s case, 2 Knapp’s P. C. Rep., 295.
The commission held the claimants not entitled to a standing, and dismissed the case, Mr. Commissioner Gurney dissenting.
Mr. Commissioner Frazer read a written opinion, as follows:
The testator was by British law a British subject, but he was also by the law of the United States an American citizen, by reason of his birth in Kentucky; and he was not capable of divesting himself of his American nationality by mere volition and residence from time to time in Scotland and holding office there.
Being, then, a subject of both governments, was he a British subject within the meaning of the treaty? The practice of nations in such cases is believed to be by their sovereign to leave the person who has embarrassed himself by assuming a double allegiance to the protection which he may find provided for him by the municipal laws of that other sovereign to whom he thus also owes allegiance. To treat his grievances against that other sovereign as subjects of international concern, would be to claim a jurisdiction paramount to that of the other nation of which he is also a subject. Complications would inevitably result, for no government would recognize the right of another to interfere thus in behalf of one whom it regarded as a subject of its own. It has certainly not been the practice of the British government to interfere in such cases; and it is not easy to believe that either government meant to provide for them by this treaty. In Drummond’s case the terms of the treaty were quite as comprehensive as those of this treaty; and yet it was there held that the claimant was not within the treaty, not being within its intention. This was held even after it was ascertained that he was not a French subject, he having merely evinced his intention to regard himself as a French subject.
I am advised that in this opinion the presiding commissioner concurred.
In the case of Joseph Fry Mogridge vs. The United States, No. 345, the same principle was applied by a majority of the commission under a like state of circumstances, except that the memorial in effect alleged the claimant to have been born in Pennsylvania of native-born British subjects, never domiciled within the United States, but on a visit there at the time of his birth, and who returned to England within a few weeks thereafter, where the claimant remained during his minority. He was domiciled in the United States at the time of the alleged injuries—the taking and destruction of his property.
His claim was dismissed in like manner.
In the case of Joseph W. Scott vs. The United States, No. 220, for damages for wrongful imprisonment, and for appropriation and destruction of property, the proofs showed that the claimant was born in the British province of New Brunswick in 1813. His father, Daniel Scott, was born in the then province of Maine, in March, 1768, and continued to reside in Maine after the recognition of the independence of the colonies by [Page 17] Great Britain, and after he became of age, Which was in March, 1789. The time of Daniel Scott’s removal to New Brunswick was left somewhat uncertain, ranging from December, 1789, to 1794.
On the part of the United States it was claimed that Daniel Scott, the father, having been a citizen of the United States, the claimant, Joseph W. Scott, was by the naturalization laws of 1802 (2 Stat, at L., 155, § 4) also a citizen of the United States, and was debarred from a standing before the commission within the principle held by the commission in the case of Alexander.
At the time of the alleged injuries, and for many years previous, he was domiciled in the State of Florida, one of the insurrectionary States.
The counsel for the United States cited the first article of the treaty of peace between the United States and Great Britain, concluded September 3, 1783, (8 Stat. at. L., 80, 81,) and the cases of Inglis vs. The Sailors’ Snug Harbor, 3 Peters, 99; Shanks vs. Dupont, id., 244; Doe vs. Acklan, 2 B. & C., 779; and Marryatt vs. Wilson, 1 B. & P., 430.
On the part of the claimant it was contended that Daniel Scott, being a minor at the time of the conclusion of the treaty of peace between Great Britain and the United States, was entitled, within a reasonable time after attaining his majority, to elect to which government he would adhere, and that he did make such election within such reasonable time by his removal to New Brunswick.
Claimant’s counsel cited the cases of Jephson vs. Riera, 3 Knapp’s P. C. R., and Count Wall’s case, id.
An award was made in favor of the claimant, Mr. Commissioner Frazer dissenting. No written opinions were read. I am advised that the decision proceeded upon the ground that Daniel Scott’a removal to New Brunswick constituted an election, within a reasonable time, to, adhere to his British allegiance.
In the cases of Elizabeth L. H. Bowie vs. The United States, No. 320, Martha M. Calderwood vs. same, No. 360, Martha M. Tooraen vs. same, No. 184, and others, it was held that the national character of a married woman is governed by that of her husband in all cases, irrespective of domicile; and that on the death of the husband the national character of the widow acquired by marriage remains unchanged. From this conclusion; Mr. Commissioner Frazer dissented, in the case of a widow of American origin who had always remained domiciled within the United States, holding that in such case, upon the death of her British husband, her original national character reverted.
In the case of Mrs. Bowie, No. 320, the claimant was by birth a British subject, but was at the time of the alleged injuries the widow of a citizen of the United States, and domiciled in the insurrectionary State of Virginia, and before the filing of her memorial had again intermarried with a citizen of the United States, who was still living and there domiciled. Her claim was disallowed, all the commissioners agreeing.[Page 18]
In the case of Mrs. Calderwood, No. 360, claimant was a native-born citizen of the United States, had intermarried with a British subject who was since deceased, and had always been domiciled in the State of Louisiana. The commission, on demurrer, held her a British subject, Mr. Commissioner Frazer dissenting.
In the case of Mrs. Tooraen, No. 184, claimant was by birth a British subject, her husband at the time of marriage being a subject of Sweden, but naturalized as a citizen of the United States subsequent to the marriage. Claimant and her husband were both domiciled from the time of marriage within the United States., Her claim was unanimously dismissed.
In the case of Jane L. Brand, No. 180, which was a claim for alleged wrongful imprisonment and appropriation of the claimant’s property at New Orleans, it appeared that claimant, a native of Ireland, had been for several years domiciled in New Orleans. She there married in 1838 a citizen of the United States, who died in 1849, and she had since remained his widow and continued domiciled in New Orleans. Her memorial alleged that, though married to an American citizen, “she never in any manner adopted his nationality;” that after his death she uniformly claimed the character of a British subject; and that in August, 1862, before the commission of the acts complained of, or a part of them, she had made proof of her character as a British subject before the British consul at New Orleans, and been duly registered as such.
On the part of the claimant it was contended that at the time of the claimant’s marriage and of the death of her husband, and up to the passage of the act of the United States Congress of 10th February, 1855, (10 Stat, at L., 604,) the claimant was not by the laws of the United States a citizen of those States, the act of 1855 being the first to give such status to an alien-born woman by her marriage to a citizen of the United States. That up to the conclusion of the naturalization convention of 13th May, 1870, between the United States and Great Britain, (16 Stat, at L., 775,) and the supplemental convention of 23d February, 1871, between the same nations, (11 id., 841,) no provision existed for the manner in which a British subject who had married a citizen of the United States should, upon becoming a widow, reclaim her original nationality. That the universal custom among nations, founded upon international comity, if not upon international law, allowed such widow to choose whether she would retain the nationality of her deceased husband or return to that of her birth. That Mrs. Brand, by always claiming, after her husband’s death, the condition of a British subject, and by registering herself as such in the consulate at New Orleans in 1862, had done all that was necessary to enable her to re-assume her original national character; and that it was not necessary for her to avail herself of the provisions of the conventions of 1870 and 1871 in order to [Page 19] disclaim and repudiate any alleged condition of American citizenship acquired by her marriage.
Her Majesty’s counsel cited the case of Kelly vs. Owen, (7 Wall., 496.)
On the part of the United States it was contended that, under the principles recognized by the commission in the cases of Mrs. Calderwood, No. 360, and others, it was settled that the national character of a married woman was in all cases determined by that of her husband; and that such national character, once acquired by marriage, continued on the death of the husband. That this doctrine had always prevailed in Great Britain, as well as elsewhere, where the domicile of the wife and widow had continued to be that of the husband’s nationality; and that by no treaty stipulation or law, municipal or international, was the widow ever allowed to reclaim her original nationality while still domiciled within the nationality of her husband, until the conventions of 1870 and 1871; and that by those conventions she could only reclaim her original nationality in the form provided by the convention of 1871, which in the case of Mrs. Brand had never been done. That she was, therefore, both at the time of the commission of the alleged wrongs and at the time of the presentation of her memorial, a citizen of the United States.
The commission unanimously sustained the doctrine maintained on behalf of the United States, and dismissed the claim for want of jurisdiction.
2. In the cases of James B. Halley, administrator, &c., vs. The United States, No. 205, Ann Grayson, administratrix, &c., vs. same, No. 291, and others, the question was raised as to the jurisdiction of the commission in the case of the personal representatives of British subjects who had died holding claims within the treaty against the United States, where such personal representatives were citizens of the United States.
On the part of the United States it was claimed that under the treaty the claims against the United States of which the commission had jurisdiction must be not only those arising out of acts committed against the person or property of British subjects, but also must be prosecuted before the commission on behalf of British subjects; and that where the claim, though originally one of a British subject, had been transferred by act of the original claimant or by operation of law to citizens of the United States, such citizens could have no standing before the commission.
In the case of Mrs. Grayson, No. 291, the claim was prosecuted by her as administratrix of John J. Cowley, a deceased British subject. The claimant was the widow of Cowley, but had, before presenting her claim, intermarried with Grayson, a citizen of the United States. The distributees of Cowley’s estate were the widow and certain brothers and sisters, all British subjects and domiciled within the British dominions. An award was made in favor of the claimant for the one-half of [Page 20] the claim to which the distributees were entitled, rejecting the one-half belonging to the widow as the claim of an American citizen.
In the case of Halley and other cases submitted with it the following decision was entered:
The majority of the commissioners are of opinion that, where the claim is by an administrator in respect of injuries to property of an intestate who was exclusively a British subject, and the beneficiaries are British subjects as well as American citizens, the claim may be prosecuted for their benefit. The commissioners are all of opinion that the particular nationality of the administrator does not affect the question.
From the first portion of this decision Mr. Commissioner Frazer dissented, as follows:
By the very words of the treaty (Article 12) the claim must be, first, for an act done to the “person or property of” a British subject; second, it must be made “on the part of” a British subject. Distinctly, then, these two things must concur to give us jurisdiction. This is too plain to admit of controversy. The treaty is the language of both governments, and must be construed to effectuate not the intent of one only, but of both. If any of its terms have one sense in Great Britain and another in the United States by reason of their respective laws, neither of these senses can fairly be taken; another, though limited, sense must be sought, common to both countries. There is such a restricted sense of the language employed here. In Alexander’s case I expressed myself on this branch of the present question. One born in the United States of British parents residing here would be protected by the United States as fully as any American against wrongs from other countries, Great Britain probably not excepted. And Great Britain would not, as against the United States, intervene in his behalf, though she would claim him as her subject, and hold him to accountability as such if found -bearing arms against her. And if born here of British parents during a temporary sojourn, but afterwards domiciled in England and never residing here, the United States would practically treat him as not an American, refusing to intervene in his behalf against any other government, though she, too, would hold him to accountability as a citizen if found in arms against her. And so of persons born in Great Britain of American parents. The treaty is the product of diplomacy, providing this international tribunal for the amicable settlement of claims concerning which each power could lawfully claim redress as it saw fit, not of claims for which it would have no right to claim redress.
Alexander’s case was a little different. He had estates and a domicile in both countries; was born in the United States of British parents domiciled here, but claiming only British nationality. This would be an interpretation of the treaty which would maintain our jurisdiction in all cases in which the complaining government would, by international law, have been at liberty to demand redress. It would settle all such cases, and thus effectuate the purpose of the treaty which was to terminate our diplomatic differences. The principles above stated, it seems to me, apply quite as fully where the person beneficially interested in the claim made before us is of both nationalities as where the person originally injured, being also of both nationalities, is still living and makes claim. To entertain the claim in either case is to assume that each government has by the treaty recognized its responsibility to the other for injuries done to those who are by its laws its own citizens or subjects This construction, it seems to me, is utterly inadmissible. I cannot possibly bring myself to believe that either government intended any such thing.
ii.—jurisdiction as to subject-matter.
Numerous questions in this regard arose during the progress of the commission, but they are so intimately connected with the merits of the cases themselves that they will be treated of under the separate cases as they may be hereafter considered.
iii.—allowance of interest.
The commission ordinarily allowed interest at the rate of six per cent, per annum from the date of the injury to the anticipated date of the final award.
iv.—claims of citizens of the united states against great britain.
Saint Albans raid.
The First National Bank of Saint Albans vs. Great Britain, No. 1.
Collins H. Huntington vs. same, No. 2.
William and Erasmus D. Fuller vs. same, No. 3.
Bradley Barlow, receiver of the Saint Albans Bank vs. same, No. 4.
Mariette Field, administratrix, &c., vs. same, No. 5.
Seth W. Langdon vs. same, No. 6.
Joseph S. Weeks vs. same, No. 7.
Breck & Wetherbee vs. same, No. 8.
Aldis O. Brainerd vs. same, No. 9.
Charles F. Everest vs. same, No. 10.
Oscar A. Burton, receiver of the Franklin County Bank vs. same, No. 13.
Lucien B. Clough, administrator, &c., vs. same, No. 14.
These claims all arose out of the same transaction, and were considered and decided together. All, except No. 14, were claims for property taken and appropriated or destroyed at Saint Albans, Vt., by an incursion of rebels, known as the Saint Albans raid, in October, 1864. No. 14 was a claim brought by the administrator of Elinas J. Morrison, deceased, to recover damages for the wrongful killing of said deceased by the rebels engaged in the same raid.
The entire amount claimed in all the cases was $313,490, besides interest.
The allegations in all the memorials were substantially the same, and as follows:
That, shortly before the 19th of October, 1864, a large number of persons, then domiciled or commorant within Her Britannic Majesty’s province of Canada, combined together within those provinces for the purpose of committing acts of depredation, rapine, and war from said provinces as a base of operations, and as a shelter for immediate retreat, against the persons and property of citizens of the United States [Page 22] residing within those States. That some twenty or more of those persons, shortly before that day, pursuant to the combinations so made, proceeded from Her Majesty’s province of Canada East into the territory of the United States, and assembled at the village of Saint Albans, in the State of Vermont, distant about twelve miles from the border of said province. That, being so assembled, they took forcible and armed possession of a part of said village; there seized and imprisoned several citizens of the United States; fired shots at sundry citizens; by such shooting killed the decedent named in No. 14; set fire to several buildings in the village; entered three of the banks therein, seizing and imprisoning the officers of such banks, and seized and appropriated the securities and moneys from the safes of said banks, together with horses and other property named in the several memorials. That all these acts were committed underarms and with military uniform, equipage, and organization to a greater or less extent. That after the perpetration of these acts the perpetrators retreated in a body toward the province of Canada, and entered that province, carrying with them the plundered property, and closely pursued by the citizens of Saint Albans and vicinity, who organized for that purpose, and would doubtless have captured the fugitive marauders but for the asylum afforded them by Her Majesty’s province. That shortly after the arrival of the retreating marauders within the province of Canada, several of them were arrested by local magistrates in that province, and a part of the plunder carried off by them was seized by such magistrates and retained in their custody. That immediately thereafter requisition was made by the Government of the United States upon Her Britannic Majesty’s government for the surrender of said persons on the charges respectively of murder, assault with intent to commitmurder, and robbery, committed within the jurisdiction of the United States, such requisition being based on and conformable to the terms of Article 10 of the treaty of 9th August, 1842, between the United States and Great Britain. That the requisition was supported by full evidence on the part of the United States of the commission by the persons so charged of the acts of violence above named. That before the hearing before such local magistrates of the charges preferred against such arrested persons, Her Majesty’s government for said province caused the jurisdiction of such local magistrates and the proceedings before them to be superseded by one Charles J. Coursol, a judicial officer of the province, who took jurisdiction of the matters charged, issued warrants for the arrest of the persons so charged, and caused such persons to be removed from the jail at St. John’s, Canada, where they were confined under process issued by the local magistrates, to the city of Montreal; and also caused the property seized to be transferred from the custody of the local magistrates to the custody of Her Majesty’s officers in Montreal. That a partial hearing was had before Judge Coursol, on which hearing full evidence was made of the commission of such acts of violence by the persons so [Page 23] charged; and that the hearing was, on the application of the persons charged, unreasonably, and against the protest of the counsel for the United States, postponed from time to time to the 13th December, 1864, for the purpose of enabling the respondents to make proof of their being commissioned and authorized by the Confederate States of America, so called, to commit the acts of violence named. That on the 13th December Judge Coursol, without hearing any further proofs or arguments, in a hasty, unjudicial, and indecent manner discharged from custody the persons against whom such hearing had chiefly proceeded, and all other persons arrested and held on the same charge, and immediately and with indecent haste ordered the money and property of the claimants found upon the persons so charged to be delivered up to them, and permitted them to make their escape therewith, such money and propperty amounting to.$80,00.0 and upwards, and having been fully proved and identified as the money and property of the claimants, and as having been plundered and carried off by the persons so charged and arrested and discharged. That subsequently further warrants were issued by Judge Smith, one of Her Majesty’s justices of the superior court for the said province, on which warrants, after much delay and hindrance, arising from the friendliness of the constabulary of the province to the confederate raiders and their pretended government, and the unfriendliness of the same to the United States Government and its people, in consequence whereof most of the offenders were allowed to escape, and all the money and property was allowed to be secreted or removed, five of the persons so charged were again arrested and brought before Justice Smith upon an application of the United States for their extradition. That after much delay Justice Smith decided that the persons were not the subject of extradition under the treaty, but were belligerents against the United States in committing the acts complained of, and in making their retreat to Canada and enjoying its asylum, and discharged the prisoners. That by these acts of the judicial officers of Canada, Her Majesty’s government, in effect, refused to surrender the persons who committed these acts of violence within the United States, and refused to restore to the United States and to its citizens the property and money so taken and carried by the plunderers into the province of Canada. That in the commission of these acts, as well as in their organization and preparation for the same, these raiders claimed to act under the authority and in aid of the so-called Confederate States of America—the enemies of the United States—and that their confederation and organization for the purpose of committing these acts were well known to many of the government officials, local officers, and citizens of the province of Canada before the occurrence of the acts named at Saint Albans. That in consequence of the culpable negligence or connivance of the authorities of the province, no steps were taken to prevent the expedition, or to give any information to the United States Government, or any of its officers, so as to enable them to protect themselves [Page 24] against such acts. That both before and after the acts in question warm sympathy and hospitality were extended to the offenders by a large number of the leading and influential citizen of the province of Canada, and the acts themselves were vindicated and approved by some of the official government newspaper organs in the province; and that such sentiments prevailed there that magistrates and peace officers in many instances refused search-warrants and the necessary assistance to enforce the same; in consequence of which many of the offenders were allowed to escape without arrest and carry with them the plundered property. The memorials charged Her Majesty’s government and official authorities in Canada to have been culpably negligent in permitting the raid in question from their borders, and in permitting the returning band, under fresh pursuit, to escape into Canada and obtain asylum therein, and in refusing to surrender them, with their booty, to the United States, and in neglecting and refusing, upon full notice and demand, to restore to the United States or to the claimants the money and property of the claimants so carried off by the raiders.
Proofs taken on the part of the claimants fully established the facts of the depredations committed at Saint Albans, as alleged in the several memorials, and that those depredations were committed by a body of men who came separately or in small detachments from Canada in the guise of ordinary travellers and without any open or apparent organization or military array. That their first apparent action in an organized body or in unison commenced at Saint Albans, on the 19th October, 1864, and continued less than an hour. That immediately after the committing of the depredations charged in the complaint they retreated in a body toward Canada; were closely pursued by the citizens of Saint Albans and vicinity, who rallied for that purpose; and that the pursuit was only abandoned upon the retreating party entering the province of Canada. The party acted under the command of one Bennett H. Young, a lieutenant in the army of the Confederate States, and all its members were claimed to have been connected with the regular military service of the confederates.
The arrest, examination, detention, discharge, re-arrest, and final discharge of some of the party, substantially as alleged in the memorial’ were also established by proofs on the part of the claimants. Testimony was taken on both sides bearing upon the question of the knowledge by the authorities of Canada of the intentions of the confederates to organize a raid from Canada upon Saint Albans or other frontier towns of the United States, and as to the conduct of those authorities in regard to taking any measures to prevent or suppress such intended raid.
Among the witnesses examined on the part of the claimants to show such knowledge by the Canadian authorities, and their failure to take proper steps to prevent or suppress the raid, were Guillaume Lamothe chief of police of the city of Montreal at the time of the raid, and Jacob Rynders, a detective in the employ of the United States at Montreal at [Page 25] the same time. The evidence of these and other witnesses tended to establish the fact that the raid upon Saint Albans was arranged and organized in Canada; that the fact that that raid or similar raids were in contemplation was known to high officers of the Canadian government, among others to Sir George E. Cartier and Sir Etienne Taché, then members of the Canadian ministry; to Col. William Ermatinger, a stipendiary magistrate, having the entire control of the police force and militia for the district of Montreal, embracing all the frontier towns in Lower Canada bordering upon the United States; to Lamothe himself, chief of police for the city of Montreal; and to Judge Coursol, government superintendent of police for the city and district of Montreal.
The claimants also put in evidence the report of Frederick William Torrance, esq., who was commissioned in January, 1865, by the Canadian government to investigate and report upon the proceedings connected with the arrest, examination, commitment, and discharge of the raiders, the seizure of the moneys found upon them, and the circumstances connected with the giving up of such moneys; also, whether there was any refusal to execute any warrant for the re-arrest of the accused; if so, by whom and for what reason; and generally to obtain authentic information of all matters and things connected with such arrest, discharge, and re-arrest of the prisoners, and the seizure, detention, and giving up of the moneys. In this report, made to the Canadian government and dated 18th May, 1865, Mr. Torrance went fully over the whole ground committed to his investigation, Messrs. Coursol and Lamothe appearing before him and being permitted to cross-examine witnesses. The report recited the facts found by him, including the transactions at Saint Albans substantially as alleged in the memorials; the flight of the raiders into Canada, closely pursued by the citizens of Vermont; the arrest in Canada of several of the raiders by the local authorities in the district bordering upon Vermont; the seizure upon the persons of those arrested and in deposits where secreted by them of about $87,000 plundered from the banks; the subsequent taking of jurisdiction of the cases of the persons arrested by Judge Coursol, and the transfer of those persons to Montreal; the examination of the prisoners, or some of them, before Judge Coursol, the government of Canada, the United States, and the prisoners all being represented upon such examination, and the same having been continued from the 7th November to the 13th December, including an adjournment of several weeks during that time to enable the defendants to make proof of their relations to the government of the Confederate States, and to show that their acts were those of lawful belligerents and not of private robbers. That on the 13th December an objection was raised by the counsel for the prisoners to the jurisdiction of Judge Coursol, which objection had some days previously been made the subject of a private interview between Judge Coursol and the counsel for the prisoners; and that thereupon the prisoners were immediately discharged, and the money found upon them, [Page 26] to the amount of about $87,000, was surrendered to them by the chief of police, under the private advice of Judge Coursol, though without any judicial order to that effect. The report of Mr. Torrance acquitted both Judge Coursol and Mr. Lamothe of the imputation of being influenced by corrupt motives. It showed that after the discharge of the prisoners by Judge Coursol, new complaints were made on behalf of the claimants or their Government before Mr. Justice Smith, on which warrants issued for the re-arrest, and that the execution of these warrants was refused by Mr. Lamothe and one of his deputies. Under the instructions of Sir George E. Cartier, and under the stimulus of a reward offered by the government of Canada for the re-arrest of the prisoners, five of them were shortly afterwards rearrested upon the warrants issued by Justice Smith, and on examination were discharged by him, on the ground that their acts at Saint Albans were belligerent acts and not crimes subjecting them to extradition under the treaty between the United States and Great Britain.
Mr. Torrance stated his conclusions upon the whole case to the following effect:
That Mr. Lamothe, as chief of police, committed an improper act in the surrender of the money to the prisoners without official directions from Judge Coursol, as whose agent he held the money, so to deliver it. That the oral and unofficial instruction of Judge Coursol to Mr. Lamothe to the effect that the prisoners, if liberated, would be entitled to the possession of the money, was not a sufficient justification to Lamothe for its delivery, but was an improper instruction on the part of Judge Coursol, and might have misled Lamothe.
That Judge Coursol, if his decision that he had no jurisdiction of the case was a correct one, was in fault for having omitted to communicate with the Government before announcing such decision and discharging the prisoners, and had laid himself open to the imputation of a grave dereliction of duty in a matter of national importance. And, on the other hand, if his decision that he had no jurisdiction was erroneous, he was liable to a criminal prosecution by indictment for malfeasance in his office by reason of the discharge of the prisoners.
And, finally, that the government of Canada was responsible to the Government of the United States for the acts of Judge Coursol and Mr. Lamothe, and was under obligation to restore the booty brought into the province by the belligerents.
Under this report the government of Canada subsequently refunded to the claimants, to whom the same belonged, the sum of about $58,000, the gold value of the $87,000 seized from the arrested raiders and subsequently returned to them. This payment did not include anything on account of the still larger sums plundered and carried off by the raiders, and which never came to the hands of the Canadian authorities.
On the part of the defence various prominent officials of Canada were examined, among them Viscount Monck, governor-general of Canada [Page 27] at the time of the raid; Sir John A. McDonald, K. C. B., and Sir George E. Cartier, Bart., members of the Canadian ministry at the same time, whose evidence tended to show the absence of any such knowledge or information on their part, in regard to any intended invasion of the United States from Canada, as to call upon them for any precautionary acts beyond those actually taken by the government, and to sustain the claim on the part of Her Majesty’s government, that the provincial government of Canada were chargeable with no lack of due diligence in failing to prevent the perpetration of the wrongs alleged by raiders proceeding from Canada in the manner above detailed.
In argument it was maintained on the part of the claimants that the evidence showed the raid to have been plotted and organized in Canada, under the advice and direction of Messrs. C. C. Clay, jr., and Jacob Thompson, confederate agents commorant in Canada. That the sympathies of the Canadian people and the subordinate officials of the government were largely favorable to the confederate cause and hostile to the Government of the United States. That there was no neutrality law in force in Canada at the time of the raid. That in the absence of such neutrality law and by reason of the sympathies of the Canadian people and officials with the confederates, the confederates were enabled to use Canada as a base of operations—the scene of their plans and arrangements for warlike acts against the United States, as their point of departure upon those raids, and their asylum on their return from them. That supposing it conceded that Lord Monck and all his ministry were without fault on their part personally, the officers immediately charged with the maintaining of neutrality upon the frontier—Coursol, Ermatinger, and Lamothe—were shown to have been fully advised of the contemplated invasions, and to have failed of their duty in reporting their knowledge to the government, if they did fail so to report it, and in taking measures to prevent such invasions.
That the positions of Judge Coursol, as superintendent of police for the city and district of Montreal, and of Colonel Ermatinger, the magistrate charged with the entire control of the police force and the militia for the same district, were such as to make notice to them, in fact notice to the government, and that their failure in any respect to perform their official duty was the failure of the government, and charged Great Britain with the consequences of such neglect.
That the government of Canada was under obligation to constantly watch the movements of these enemies of the United States thus plotting the invasion of a friendly nation from the Canadian soil; should have arrested the persons engaged in such plots, or should have expelled them from Canada; and, if the law was found insufficient, should have called on Parliament to make it sufficient. That it was the duty of the Canadian Parliament to have provided by law the means of preventing such invasions; and that the absence of such municipal law could not [Page 28] be pleaded in bar of the international liability of the government to perform its duty in preserving neutrality towards the United States, a friendly nation. That in fact the government of Canada actually did nothing to prevent these violations of neutrality from their soil, though with abundant reason, irrespective of proof of actual notice or knowledge, to apprehend such invasions by the confederates commorant in Canada; and that the actual notice of such intentions, brought home to Coursol, Ermatinger, and Lamothe, was a notice to the government itself, which was chargeable with the non-feasance or malfeasance of those officers. That the government of Canada was held to “due diligence” to prevent military operations by the enemies of the United States from the soil of Canada, as a base of operations, against the United States. That the measure of this diligence was to be determined by the nature of the danger to be apprehended from the neutral soil, the magnitude of the danger and the results of negligence, the means of the United States to resist or prevent it, the sympathy and aid which the enemies of the United States might receive in Canada, and the unfriendliness of the people of Canada to the United States, the fact of plans for former raids known to the government of Canada, and the hostile speeches and avowed intentions of the enemies of the United States, found in large numbers in that province. That all these considerations combined to require strict diligence on the part of the Canadian government to prevent hostile incursions into the United States across the long and unprotected frontier between those States and Canada.
The counsel for the claimants insisted that the Canadian government had entirely failed in the performance of these international duties, and that by reason of such failure Great Britain was liable to the United-States for the injuries inflicted by the raiders. That the United States had done all in their power, and all which they were required by international law to do, to protect themselves against such dangers from Canada; and that the Government of those States had in their diplomatic correspondence preferred such claims against the government of Her Britannic Majesty, and had fully provided by the treaty for the submission of them to the decision of the commission.
The counsel for the claimants cited the opinion of Count Sclopis upon the question of due diligence in the tribunal at Geneva; also, on the same subject, 1 Phill., 21, 230 to 232; 3 id., 201 to 237; Halleck, 318, 524. They also cited various passages from the diplomatic correspondence between the governments of the United States and Great Britain during the war, and from the papers before the Geneva tribunal, as well as from the protocols to the treaty of 8th of May, 1871, to show that the Government of the United States had always claimed the British government responsible for the injuries to their citizens by the St. Albans raid, and that these injuries occupied a prominent place among the claims of citizens of the United States against Great Britain [Page 29] for acts committed daring the war, for the purpose of passing upon which this commission was instituted.
On the part of the defence it was maintained by Her Majesty’s counsel that the proofs in the case showed no state of facts importing any lack of care or diligence on the part of the authorities of Canada in the maintenance of their international obligations. That the persons who committed the acts complained of at Saint Albans did not enter the States from Canada in a body, nor with any military array or equipment; that they passed over the lines from Canada individually or in small parties, with the appearance and in the manner of ordinary travellers; that the authorities of Canada had no reason to suppose them engaged in a hostile expedition against the United States, and that no grounds existed for their arrest or detention by those authorities.; that there was nothing in their appearance or movements to excite suspicion; that the Government of the United States had, in 1862, voluntarily annulled its own passport regulations which had previous to that time required all persons coming from Canada into the United States to be provided with passports countersigned by the United States consul-general at Montreal; and that from that time until after the Saint Albans raid there was no regulation interfering with the free and ordinary passage of travellers across the line. That the degree of diligence contended for by the counsel for the claimants would have required of the Canadian authorities a careful examination of every person travelling from Canada to the States as to his character and objects, and would, in effect, have abolished the free intercourse between the provinces and the States which had existed under the full assent and approval of both governments. That from the diplomatic correspondence between the two governments it appeared that the United States had never preferred a claim of pecuniary liability against Great Britain on account of this raid; but, on the contrary, the American Secretary of State, Mr. Seward, had on different occasions expressed his satisfaction with the action of the Canadian authorities, and had particularly expressed through the British legation his thanks to Lord Monck, the governor-general, for the assistance rendered by the Canadian authorities toward the detection and arrest of the offenders. That in the protocols to the treaty, in the four preliminary notes between Mr. Secretary Fish and Sir Edward Thornton, on the subject of the formation of the Joint High Commission which framed the treaty, and by the confidential memorandum or brief sent by Secretary Fish to General Schenck of that commission for the information and guidance of himself and colleagues, there was no allusion to the Saint Albans raid, much less to any claims on the part of the United States growing out of the acts committed or omitted by the British government in relation thereto. That the only explanation that could be given of this omission was that the Government of the United States did not consider itself entitled to make any international demands in the premises. That in fact the [Page 30] proofs failed to show that the raid was organized in Canada; that the raiders procured arms or ammunition there, or did any other act within Her Majesty’s dominions in violation of her just neutrality, which was known to, or with due diligence might have been known to, the Canadian authorities. That, on the contrary, the evidence strongly tended to show that the raid was in fact organized within the United States, and that no act compromising British neutrality was committed by the raiders. That no liability was shown by the evidence, and none was claimed by the claimants’ counsel to exist against Great Britain by reason of the omission alleged in the memorials of the Canadian authorities to surrender the raiders under the extradition treaty. That the acts of the raiders were belligerent acts, and as such afforded no ground for extradition.
Her Majesty’s counsel cited the opinion of Count Sclopis in the tribunal at Geneva; also, 1 Phillimore, 230 to 232.
The commission unanimously disallowed all the claims.
Mr. Commissioner Frazer read an opinion, in which I am advised that the majority of the commission concurred, as follows:
I may not be prepared to say that Great Britain used that diligence to prevent hostile expeditions from Canada against the United States which should be exercised by a neutral and friendly neighbor; but in the view which I take of these claims this question is not important, and need not, therefore, be decided.
The raid, upon Saint Albans was by a small body of men, who entered that place from Canada without anything to indicate a hostile purpose. They came not in an organized form, so as to attract attention, but apparently as peaceable individuals travelling by railroad and not in company, and stopped at the village hotels. That there was a preconcerted hostile purpose is unquestionable, but this was so quietly formed, as it could easily be, that even at this day the evidence does not disclose the place, the time, nor the manner. The Government of the United States was at the time diligent, by means of its detectives, to know what mischievous expedition might be organized by rebels in Canada, but it failed to discover this one until after it had done its work. Such was the secrecy with which this particular affair was planned, that I cannot say it escaped the knowledge of Her Majesty’s officers in Canada because of any want of diligence on their part which may possibly have existed. I think rather it was because no care which one nation may reasonably require of another in such cases would have been sufficient to discover it. At least the evidence does not satisfy me otherwise.
The Lake Erie raid.
Walter Oliver Ashley vs. Great Britain, No. 19.
This case was, in general character, and in most of the circumstances accompanying it, analogous to the cases growing out of the Saint Albans raid above reported. The evidence on each side in the Saint Albans raid cases was invoked into this case; and the case was argued, submitted, and decided in connection with those cases.
The memorial alleged that some months prior to September, 1864, confederate refugees, domiciled or commorant in the provinces of Canada, there planned and organized a warlike enterprise of forcibly appropriating [Page 31] steamers of the United States on Lake Erie, and using them for the capture of the United States war-steamer Michigan, then stationed on Lake Erie. That by such capture, the plan contemplated the release of some 3,000 confederate prisoners confined on Johnson’s Island, in Lake Erie, near the American shore; and also to obtain control of the lakes and power to destroy and pillage the cities of the United States bordering thereon. That the existence of the plan for such expedition was known to the Canadian authorities for many months before September, 1864, and that such knowledge was communicated by the governor-general of Canada, in November, 1863, to Her Majesty’s minister at Washington, who communicated it to the War Department of the United States, but that no steps were taken by Her Majesty’s government for said provinces to prevent the execution of the plan.
That on the 19th of September, 1864, about thirty confederate soldiers came on board the steamer Philo Parsons, a private freight and passenger vessel of the United States, at certain Canadian ports, with concealed weapons shipped as freight, the vessel being then on her regular trip from Canadian ports to Sandusky, Ohio. That immediately after the vessel had crossed the boundary-line between the Canadian provinces and the States, this party rose with arms upon the crew, took forcible and armed possession of the vessel, making prisoners the officers and crew, threw overboard and destroyed a large quantity of the cargo, seized the money of the claimant, an officer and part owner of the vessel, shaped the course of the vessel for the war-steamer Michi gan, and on their way overhauled, seized, and sunk in American waters another private steamer of the United States, the Island Queen, but, failing to receive expected signals, abandoned their project of capturing the Michigan, raised the confederate flag upon the Philo Parsons, changed her course, and proceeded toward Sandwich, in Canada. That on arriving at Sandwich on the 20th of September, they plundered the Philo Parsons while lying in British waters, landed their booty in the province of Canada, sunk or partially sunk the steamer, and retreated in a body within the province of Canada with the plundered property taken from the vessel.
The memorial contained allegations similar to those contained in the memorials in the Saint Albans cases as to the asylum afforded by Canada to the retreating raiders; as to the negligence of the Canadian authorities in failing to prevent the expedition, and also in failing to take proper steps in apprehending the raiders and surrendering them under the extradition treaty, and in restoring the property captured and carried off by them.
The claimant claimed himself the assignee of all the other owners and claimed damages in the premises, $16,093.
The evidence in the case sustained the allegations in the memorial as to the circumstances of the capture and destruction of the vessels [Page 32] named, and the seizure of the property alleged, and as to the assignment of the claims of other owners to the claimant.
Upon the question of due diligence by the Canadian authorities, the claim was rested on both sides substantially on the evidence taken in the Saint Albans cases, and the arguments of the respective counsel upon this question were substantially those urged in the Saint Albans cases, with the additional point, urged on behalf of the defence, that the Canadian government had promptly given notice to the Government of the United States of the information received by them as to the contemplated raid, thereby putting the United States Government fully upon, its guard.
The claim was unanimously disallowed.
The Calcutta saltpetre cases.
Frederick T. Bush and others vs. Great Britain, No. 11.
Thomas B. Wales and others vs. same, No. 12.
Richard P. Buck and others vs. same, No. 16.
Curtis & Peabody vs. same, No. 18.
These claims were all of substantially the same character, arising on the same state of facts, and were heard on the same proofs and arguments.
The claimants in No. 11 were the owners of the American ship Daring; those in No. 12, of the American ship Templar; those in No. 16, of the American bark Patmos, and those in No. 18, of a portion of the cargo of the Daring, consisting of linseed, saltpetre, jute, and gunny-bags.
The three vessels above named were, on the 27th December, 1861, in the port of Calcutta, in British India. The Daring had at that date taken on board a quantity of saltpetre, as part of her cargo, obtained a clearance therefor, and had paid the export duty thereon. After that date she completed the taking in of the remainder of her cargo, consisting of linseed, jute, &c., but including no saltpetre, and was completely laden on the 3d January, 1862.
The Templar had her cargo all on board, including a quantity of saltpetre, on the 27th December.
The Patmos also was fully laden, including 2,000 bags of saltpetre, on the 27th December.
On the 30th November, 1861, the following proclamation was issued by Her Britannic Majesty:
by the queen—a proclamation.
Whereas in and by a certain statute made and passed in the Parliament held in the sixteenth and seventeenth years of our reign, and intituled “The Customs Consolidation Act, 1853/’ it is, amongst other things, declared and enacted as follows; that is to say:[Page 33]
“The following goods may, by proclamation or order in council, be prohibited either to be exported or carried coastwise: Arms, ammunition, and gunpowder, military and naval stores, and any articles which Her Majesty shall judge capable of being converted into or made useful in increasing the quantity of military or naval stores, provisions, or any sort of victual which may be used as food by man; and if any goods so prohibited shall be exported from the United Kingdom or carried coastwise, or be waterborne to be so exported or carried, they shall be forfeited.”
And whereas we have thought fit, by and with the advice of our privy council, to prohibit either to be exported or carried coastwise the articles hereinafter mentioned, (being articles which we judge capable of being converted into or made useful in increasing the quantity of military or naval stores,) we, therefore, by and with the advice of our privy council, and by this our royal proclamation, do order and direct that, from and after the date hereof, all gunpowder, saltpetre, nitrate of soda, and brimstone, shall be, and the same are hereby, prohibited either to be exported from the United Kingdom or carried coastwise.
Given at our court, at Windsor, this thirtieth day of November, in the year of our Lord one thousand eight hundred and sixty-one, and in the twenty-fifth year of our reign.
God save the Queen.
On the 27th December, 1861, the following ordinance was promulgated by the governor-general of India:
The following ordinance, passed by the governor-general of India on this date, is hereby promulgated for general information:
AN ORDINANCE to prohibit the exportation of saltpetre, except in British vessels bound; to the ports of London or Liverpool, passed by the governor-general of India, under the provisions of 24 and 25 Vic., cap. 67, on the 27th December, 1861.
Whereas information has reached the governor-general by public telegraph that the exportation of saltpetre from the United Kingdom has been interdicted by royal proclamation, and it is, therefore, expedient that the exportation of saltpetre from India, except in British vessels bound to the port of London or to the port of Liverpool, should be prohibited: It is ordered as follows:
- Until the governor-general, in council, shall otherwise order, it shall not be lawful for any person to export saltpetre from any port of Her Majesty’s territories in India, except in a British vessel bound either to the port of London or to the port of Liverpool.
- If any person shall attempt to export saltpetre, contrary to the provisions of this ordinance, the same shall be seized and confiscated.
- No collector or other officer of the customs shall after this date grant a pass or permit for the exportation, or shipment for exportation, of saltpetre from any port of the said territories, except in a British vessel bound for the port of London or for the port of Liverpool.
- Nothing in this ordinance shall extend to any saltpetre shipped prior to this date, or to any saltpetre for the exportation or shipment whereof a permit or pass has been granted on or before this date.
Secretary to Governor of India.
On the 3d January, 1862, the following notification was issued and additional ordinance was promulgated by the governor-general of India:
Fort William, Januarys 3, 1862.
Whereas it is declared by the ordinance passed by the governor-general of India, on the 27th December, 1861, that until the governor-general, in council, shall otherwise order, it shall not be lawful for any person to export saltpetre from any part of Her Majesty’s territories in India, except in British vessels bound either to the port of London or to the port of Liverpool; and whereas it appears from instruction since received from Her Majesty’s government that the prohibition to export saltpetre from India, so far as regards British vessels is to apply only to such vessels when bound to ports not within the United Kingdom, the governor-general, in council, is pleased to order, accordingly, that it shall be lawful to export saltpetre on British vessels bound to any port of the United Kingdom, anything in the said ordinance notwithstanding.
By order of the governor-general, in council.
Secretary to the Government of India.
January 3, 1862.
The following ordinance, passed by the governor-general of India, on this date, is promulgated for general information:
AN ORDINANCE to prohibit the exportation of saltpetre, except in British vessels bound to the United Kingdom, passed by the governor-general of India, under the provisions of 24 and 25 Vic, c. 67, on the third of January, 1862.
Whereas in a dispatch from the secretary of state for India, dated the third December, 1861, the instructions of Her Majesty’s government have been received by the governor-general, in council, to take immediate measures for preventing the exportation of saltpetre from India, except in British vessels bound for the ports in the United Kingdom, and to cause any saltpetre which, previously to the receipt, and contrary to the conditions of the said instructions, may have been placed on board vessels still in port, to be re-landed; and whereas, in consequence of the said instructions, the governor-general, in council, has this day ordered that it shall be lawful to export saltpetre on British vessels bound to any port of the United Kingdom, anything in the ordinance of the governor-general the 27th December, 1851, notwithstanding; and whereas this expedient to make further provision for giving effect to the instructions now received from Her Majesty’s government: It is, therefore, ordered as follows:
- Until the governor-general, in council, shall otherwise order, it shall not be lawful to export saltpetre from any part of Her Majesty’s territories, except in a British vessel bound to a port of the United Kingdom.
- All saltpetre which previously to the promulgation of this ordinance may have been placed for exportation on any vessel still being within a port of Her Majesty’s territories in India, and not being a British vessel bound for a port of the United Kingdom, shall be re-landed.
- No collector of customs or other officer shall grant a port-clearance to any vessel having onboard saltpetre, other than a British vessel bound for the United Kingdom.
- If any person shall attempt to export saltpetre contrary to the provisions of this ordinance, the same shall be seized and confiscated.
- Any custom-house officer may without warrant seize saltpetre liable to confiscation under this ordinance.
Secretary to the Government of India.
The vessels in question having their cargoes on board, and their masters believing that the prohibition would be but temporary, it was not deemed expedient to unload the saltpetre which lay, in each case, at the bottom of the hol, thus requiring the unlading of the entire cargo) and the vessels accordingly remained in port at Calcutta until 28th February, 1862, on which ay the several ordinances prohibiting the exportation of saltpetre were revoked. They were respectively ready to sail with their cargoes, but for the prohibition, on the 3d, 8th, and 20th days of January, respectively; and the claim in each case was for demurrage from the time the vessels were respectively ready to sail until permitted to sail by the revocation of the ordinances, it being averred in each case that the demurrage thus claimed was less than the expense of unlading the cargo would have been.
The masters of the respective vessels duly protested before the United States consul-general at Calcutta against the prohibition of exportation of saltpetre, and against the detention of their vessels by occasion thereof, claiming their damages for the demurrage. The claims were, during the year 1862, made the subject of diplomatic correspondence between the two governments, the United States claiming compensation on behalf of the parties aggrieved, and the British government vindicating the legality of the ordinances and of the prevention of the sailing of the vessels with the saltpetre on board during the continuance of such ordinances.
The provisions of the statute of 16th and 17th Victoria, under which the royal proclamation was issued, and upon which the ordinances of the governor-general were founded, are recited in the royal proclamation above given. The convention between the United States and Great Britain of July 3, 1815, continued by the conventions of 20th October, 1818, and of 6th August, 1827, and in force at the time of the acts in question, are as follows:
Article III. His Britannic Majesty agrees that the vessels of the United States of America shall be admitted and hospitably received at the principal settlements of the British dominions in the East Indies, videlicet: Calcutta, Madras, Bombay, and Prince of Wales’ Island; and that the citizens of the said United States may freely carry on trade between the said principal settlements and the said United States, in all articles of which the importation and exportation, respectively, to and from the said territories, shall not be entirely prohibited; provided only, that it shall not be lawful for them, in any time of war between the British government and any state or power whatever, to export from the said territories, without the special permission of the British government, any military stores or naval stores, or rice. The citizens of the United States shall pay for their vessels, when admitted, no higher or other duty or charge than shall be payable on the vessels of the most favored European nations, and they shall pay no higher or other duties or charges on the importation or exportation of the cargoes of the said vessels than shall be payable on the same articles when imported or exported in the vessels of the most favored European nations.
But it is expressly agreed that the vessels of the United States shall not carry any articles from the said principal settlements to any port or place, except to some port or place in the United States of America, where the same shall be unladen.[Page 36]
It is also understood that the permission granted by this article is not to extend to allow the vessels of the United States to carry on any part of the coasting trade of the said British territories; hut the vessels of the United States having, in the first instance, proceeded to one of the said principal settlements of the British dominions in the East Indies, and then going with their original cargoes, or part thereof, from one of the said principal settlements to another, shall not be considered as carrying on the coasting trade. The vessels of the United States may also touch for refreshment, but not for commerce, in the course of their voyage to or from the British territories in India, or to or from the dominions of the Emperor of China, at the Cape of Good Hope, the island of St. Helena, or such other places as may be in the possession of Great Britain in the African or Indian seas; it being well understood that in all that regards this article the citizens of the United States shall be subject, in all respects, to the laws and regulations of the British government from time to time established.
The proclamation and ordinances in question were promulgated by occasion, and in view of the arrest on the high seas of the British mail-steamer Trent, and the taking from that vessel of Messrs. Mason and Slidell, agents and emissaries of the confederate government, by a vessel of war of the United States, and in the apprehension of probable hostilities between the United States and Great Britian on account of such arrest and seizure.
On the part of the claimants it was contended that, irrespective of treaty stipulations between the United States and Great Britain, the proclamation and ordinances were in effect an embargo on saltpetre-laden vessels bound for non-British ports, at least during the time it would take to unlade the saltpetre; that it was a civil, as distinguished from a hostile, embargo, not directed against vessels of the United States exclusively, but as a husbanding of resources merely, though in anticipation of probable hostilities, and thereby having some features of a hostile embargo; that even in the case of a hostile embargo, if war does not ensue, innocent sufferers have a just claim for indemnity, recognized by international law and practice; that a fortiori there is always a just claim for indemnity by sufferers in the case of a civil embargo; that the fact that the embargo was justified by the municipal law of Great Britain did not relieve that government from liability under international law; that the action of the American commander in the arrest of the Trent, and the seizure and removal of the two passengers named, were not justified by his instructions, and were subsequently disavowed by his government, and therefore no international wrong was ever committed by the United States; and that, therefore, such action afforded no justification of measures by the British government in anticipation of war, even if the measures in question would have been justified by the emergency, if the acts of the officer had been avowed by his government; that if the royal proclamation and the ordinances were not to be considered as constituting an embargo, but only a matter of domestic and police regulation, they certainly constituted a violation of the rights of friendly foreigners, and involved liability for compensation; and that, in the case of the Daring, the ordinance of the. 27th December having clearly given her the right to sail with the cargo already loaded, this permission, with the subsequent [Page 37] acts done and expense incurred by her owners on the faith thereof, in continuing to lade their cargo on top of the saltpetre, in reliance on the ordinance, constituted a contract, and entitled the vessel to the observance of that contract by the Indian authorities.
Under the treaty between Great Britain and the United States, the claimants respectively contended that the right of the vessels in question to sail with the saltpetre on board was guarantied by the terms of the treaty. That “exportation” of saltpetre “from the said territories” was not “entirely prohibited” by the terms of the ordinances, for such exportation was allowed to England. That transportation from India to England was an “exportation from the said territories,” and was so recognized by the terms of the proclamation itself, which recited, “it shall not be lawful for any person to export saltpetre from any part of Her Majesty’s territories in India, except in a British vessel bound either to the port of London or to the port of Liverpool.” That the acts in question were plainly not “in time of war between the British government and any state or power whatever.” That the language of the treaty providing “that in all that regards this article, the citizens of the United States shall be subject in all respects to the laws and regulations of the British government from time to time established,” could not be construed so as to authorize the local authorities to deny rights expressly stipulated for in the treaty, and formed no bar to the right of the claimants to sail with the saltpetre on board their vessels, the same having been lawfully taken on board.
The claimants’ counsel cited the Boedes Lust, 5 Bob., 246; Beawes Mer. Law, 276; U. S. Stat, at L., 381, re-imbursing sufferers from the Bordeaux embargo; Dana Wheaton, p. 4, § 15; p. 373, § 293; 3d Phill., 42; Honey man arguendo, in Aubert vs. Gray, 3 B. and S., Q. B., 179; letter of Lord Clarendon to Mr. Dallas, of May 15, 1856,. Br. and Am. Dip. Cor.; Gardn. Inst. of Int. Law, 546.
Her Majesty’s counsel maintained that both under international law, irrespective of treaty stipulation, and under the treaty stipulations between the United States and Great Britain, the proclamation and ordinances in question were lawful and valid, and involved no liability for compensation to parties injured by their provisions. That they were general regulations, not directed against the ships or cargoes of these claimants in particular, nor subjecting the ships or commerce of the United States to any discrimination or disadvantage not common to all other foreign nations. That even British ships were subjected to the same disadvantage; and the right of exporting saltpetre to the mother country reserved to them was a right which never had belonged to the United States. That commercial adventures of this character were, in the nature of things, subject to any modification of law which might affect the anticipated profits, and perhaps defeat them altogether. That the ordinances did not constitute an embargo in any just sense, whether hostile or civil. That they were municipal regulations of trade, [Page 38] not forbidden by any principle known to the law of nations. And that, aside from the treaty between the United States and Great Britain, they were clearly authorized by international law. That a just interpretation of the third article of the convention of 1815 must hold it not to prohibit the British government from regulating the exportation of products of the Indies, from time to time, as might be deemed expedient, or in its discretion from temporarily prohibiting the exportation of some or all of such products to any foreign nation whatever. And that of the occasion of such prohibition and its extent, every nation must of necessity be for itself the sole judge.
That the treaty permitting the trade between the Indian ports and the United States in articles the exportation of which “shall not be entirely prohibited,” gave no right to those citizens to export saltpetre at the time in question, the exportation of that article being by the terms of the ordinances entirely prohibited. That the word “exportation” referred to foreign commerce, and not to the transportation from the Indies to the home ports of Great Britain. That the reservation of the right of transportation to such home ports was in no respect prejudicial to the commerce of the United States, they having no right to participate in the trade between Indian ports and the ports of Great Britain. That the treaty itself providing for this trade also provided that the citizens of the United States should be subject in all respects to the laws and regulations of the British government, and thus expressly subjected them to the operation of ordinances like those in question authorized by the statute upon which they were based. That the ordinances of 27th December and 3d January were just, caused by an act of an armed vessel of the United States in violation of international law, and affording a reasonable apprehension of hostilities to ensue between Great Britain and the United States. That in such case all means of protection and self-defense, not in themselves at variance with the ordinary principles of justice, and impartially used, were permissible to every government, and that this prerogative having been exercised bona fide for the safety of the realm on a particular emergency by a prohibition equally affecting native subjects and foreign merchants, the latter have no ground upon principles of international right or justice to require compensation for such an unavoidable diminution of their commercial profits.
The commission disallowed all the claims, Mr. Commissioner Frazer dissenting and reading a dissenting opinion, a copy of which will be found in the appendix, E.
Josiah Winslow Tripp vs. Great Britain, No. 15.
The claimant in this case alleged, in substance, by his memorial that prior to August, 1862, he was lawfully possessed of a certain limestone [Page 39] quarry and lime-kiln, together with some 1,500 barrels of lime, tools, furniture, &c., on San Juan Island, in the Territory of Washington, belonging to the United States.
That in his absence from the island in August, 1862, his wife was ejected from the premises by one Roberts, a British subject, who took possession of the real estate and appropriated the personal property. That claimant commenced a suit against Roberts in a justice’s court of the Territory of Washington to recover the possession of the premises, and obtained judgment for restitution of the property, which was followed by a warrant of restitution for its enforcement.
That Roberts thereupon appealed to Captain Bazalgett, commander of the British forces on the island. That Bazalgett thereupon applied to Major Bissell, commanding the American forces on the island, and that Major Bissell thereupon arrested the claimant and the justice of the peace who had rendered the judgment against Roberts, put them in the guard-house, and shortly after expelled the claimant from the island.
That in April, 1864, the claimant returned to the island, and finding his claim vacant, took possession of the same, providing-anew stock of tools and supplies, and commenced to work the quarry; but after ten days spent in it, was again forcibly removed by command of Captain Bazalgett, put in the guard-house, detained two weeks, and then banished from the island and forbidden ever to return.
The memorial alleged the value of the quarry at $50,000, and claimed damages by occasion of the premises $100,000.
Evidence was taken on the part of the claimant tending to sustain his allegations as to his possession of the property and removal therefrom.
At the time of the acts alleged the title of the island of San Juan was in dispute between the United States and Great Britain, and the island was occupied by a joint military force of the two governments under an arrangement made between them for such joint occupancy, by which the citizens and subjects of each government were made amenable to the authorities of their own government only.
Pending the case before this commission, His Majesty the Emperor of Germany, to whom the decision of the question was referred by the treaty of 8th May, 1871, decided the island to be the property of the United States.
The proofs filed on the part of the defence showed that the arrest of Tripp and his expulsion from the island were by order of the commander of the United States forces upon the island, and not through any assumption of authority on the part of the commander of the British forces.
The claimant filed an argument admitting that the arrest and order of banishment on each occasion came from the American commander, but claiming that it was on the complaint of the British commander, who represented his own government and made unfounded charges [Page 40] against the claimant, which were the cause of his arrest and banishment, and that by reason thereof the British government was liable to his reclamation for damages.
The commission, without hearing any argument for the defense, unanimously disallowed the claim.
William Wheeler Hubbell vs. Great Britain, No. 17.
The memorial of the claimant alleged, in effect, that prior to the 1st of July, 1844, the claimant was the inventor of a certain improvement in breech-loading fire-arms, for which letters patent were issued to him by the United States, dated 1st July, 1844.
That in the year 1844 the British government, through Her Majesty’s consul at Philadelphia, ordered of the claimant two specimen guns made under the claimant’s invention and patent, which were thereupon procured to be made by the claimant, and furnished through the consul to Her Majesty’s government in 1845, and paid for by that government.
The memorial further alleged that “it was understood and agreed that the invention of said mechanical principle” of the claimant “should be paid for by Her Majesty’s government whenever it should be determined upon for adoption in Her Majesty’s service.” That after the receipt of the specimen guns, in 1845, it was determined by Her Majesty’s government, in the same year, that it was not expedient to adopt them for use, but that subsequently, on the 14th March, 1885, Her Majesty’s government made “a full determination of adoption in Her Majesty’s service of breech-loading firearms” known as the Snyder Enfield rifle, containing and embodying the mechanical principle covered by the claimant’s invention and patent; and that after such official “determination of adoption,” in March, 1865, Her Majesty’s government issued to Her Majesty’s army and navy 500,000 muskets of the pattern named and covered by the invention and patent of the claimant.
The claimant claimed a royalty of $1 each upon these muskets, amounting to $500,000, besides interest.
A demurrer was interposed by Her Majesty’s counsel to the memorial, on the ground that the commission had no jurisdiction of the claim stated in the memorial, and that the memorial alleged no sufficient ground of claim against Great Britain, in that—
- The claim was based upon a contract, express or implied, which was not a claim within the terms or intent of the treaty, not being a claim “arising out of acts committed against the persons or property of citizens of the United States.”
- That if such claim on contract were within the jurisdiction given by the treaty, the claimant could have no standing before the commission as an international tribunal until he had exhausted the remedies in [Page 41] all the municipal courts of Great Britain, and until justice had been denied him by such tribunals in re minime dubia.
- That the facts alleged in the memorial established no such contract as claimed by the claimant for the payment of a royalty upon guns subsequently used and covered by his invention.
- That no act of Her Majesty’s government was alleged as happening within treaty time, except the “full determination of adoption “alleged to have been made in March, 1865, and that this was not an act committed against the property of the claimant.
- That the claimant did not appear to have had any property in his alleged invention in England, and that his property in the invention in the United States had expired prior to March, 1865, and was open to the whole world.
On hearing on the demurrer, the claim was unanimously disallowed by the commission.
v.—claims of subjects of her britannic majesty against the united states.
1.—Claims for property alleged to have been taken and appropriated to the use of the United States.
The claims embraced under this head were very numerous, and arose under various circumstances. Most of them may be grouped under the following heads:
a. Those for property in the nature of military supplies, taken by authorized officers for military use, and vouchers given for the same.
These claims arose sometimes within the loyal States, sometimes within the Federal lines, in territory reclaimed from the enemy within the insurrectionary States, and sometimes within the enemy’s lines. Among them may be named the case of Thomas Ward, No. 1, which was for cotton taken from the claimant at Wilmington, N. C., shortly after the capture of that city by the Federal forces, and appropriated for the use of the United States hospital.
On the part of the United States it was contended that the claimant, being a resident of North Carolina, was, by domicile, an enemy of the United States. He was found in a town captured by them, and his property was liable to levies and contributions for their benefit.
The voucher given was in the following words:
Wilmington, N. C., March 3, 1865.
Received of Thomas Ward, two bales of cotton.
P. C. HAYES,
Lieut. Col. and Provost-Marshal General, U. S. A.,
and was accompanied by a certificate of an assistant surgeon that the cotton was used for beds in the hospital.[Page 42]
The award of the commission, in which all the members joined, was as follows:
Without expressing any opinion on the effect to be given to the evidence of Thomas Ward and Sarah Ward, the commissioners are of the opinion that the receipts and vouchers given by acknowledged officers of the Army at the time, show that the cotton was taken from the claimant for the use of the United States. This we think sufficient, in the absence of all countervailing proof, to show the taking by the United States. Nothing appears to indicate that it was taken as enemy’s property, and the question of the right so to take is, therefore, not involved. It was taken nine days after the capture of Wilmington, N. C., by the United States, and the possession of the place ever after continued in the United States. We are not, upon the facts before us, prepared to hold that, at the time of the taking of the cotton, the place was enemy’s territory. We agree, therefore, that the claimant is entitled to compensation for the property, the amount being the average value of cotton usually produced in that neighborhood, with interest at six per cent, per annum until January 31, 1873.
We therefore award that the sum of $620.44 be paid by the Government of the United States to the government of Her Britannic Majesty in respect of the claim of Thomas Ward.
In the case of John Wilkinson, No. 28, the claim was for beef taken from the claimant on Matagorda Island, Texas, by a commissary of the United States in 1863, and for which vouchers in the usual form were given. The claimant was domiciled and his property situated within the insurrectionary State of Texas, and apparently not within the actual military lines of the United States at the time of the taking. The vouchers were all signed by an authorized officer, and recited, “I have taken for military, purposes from John Wilkinson,” the property described, and that the same was necessary for the public service, and would be accounted for in the officer’s monthly returns.
On the part of the United States it was claimed that the taking was a capture under the right of war, and that no liability for payment arose against the United States.
An award was made in favor of the claimant, in which all the commissioners joined.
The same principle was applied in all other cases of like character.
b. Claims for property taken under the command of authorized officers of the United States for military use, whether in the loyal States or within those portions of the insurrectionary States permanently occupied by the Federal forces, or within those portions of the insurrectionary States not so reclaimed by the United States, and for which property no voucher was given.
The claim of Jonathan Braithwaite, No. 31, was for a horse taken for cavalry use in Kentucky, a loyal State, in 1864.
On the part of the United States it was contended that the claimant? being domiciled in Kentucky, had precisely the same remedy for property taken for public use, as citizens of the United States residing within the loyal States) that the laws of the United States afforded him the [Page 43] proper means of securing compensation before the proper bureau of the War Department, and that the case was not one for international reclamation.
The commission gave an award in favor of the claimant, in which all the commissioners joined.
In the case of Samuel Brook, No. 99, the claim was for certain tarpaulins taken by an authorized officer for the use of the United States, at Memphis, Tenn., in June, 1862, shortly after the capture of that city by the Federal forces.
An award was made in favor of the claimant, Mr. Commissioner Frazer dissenting upon the question of the sufficiency of proofs, but the commissioners all agreeing as to the principle involved.
It may be stated generally that the commission were unanimous in the allowance of claims for property coming under this head when taken within the loyal States or within those portions of the insurrectionary States permanently occupied by the Federal forces, except when something in the nature of the property or in the conduct of the claimant took him out of the condition of neutrality. Thus, for instance, in the case of Robert Davidson, No. 66, the claim was for gun-carriages and other artillery apparatus, manufactured by the claimant for the use of the confederate government, and remaining in his possession at the surrender of New Orleans, together with material for use in the same manufacture, which was taken and appropriated by the Federal forces, under the orders of General Banks, some months after the capture of New Orleans. The claim was unanimously disallowed.
Where, however, the taking of the property by the Federal forces and the domicile of the claimant were within the enemy’s lines, or in those portions of the enemy’s country not reclaimed from the enemy, the majority of the commission, on satisfactory evidence that the property was taken by authority, or actually appropriated to military use, made awards in favor of the claimants, Mr. Commissioner Frazer dissenting, on the ground that one domiciled in the country of the enemy was himself an enemy in law, whether an actual enemy or not; and by well-settled principles of public law his sovereign had no right in such cases to intervene in his behalf against the ordinary treatment of him as an enemy. In the principle thus held by Mr. Commissioner Frazer, I am advised that the presiding commissioner agreed; but in view of the fact that the United States had, by the establishment of the Southern claims commission, made provision for the compensation of its own citizens domiciled within the enemy’s country who remained loyal adherents to the cause and the Government of the United States during the war,” for property taken in like manner, (16 Stat, at L., 524, § 2,) he was of opinion that neutral aliens in like situation should be entitled to the same degree of compensation, and, if British subjects, to a standing before the commission for that end.[Page 44]
Upon this question Mr. Commissioner Frazer held that any provision made for the payment of such claims to citizens was not in discharge of an obligation imposed by the public law, but was a matter of favor, and could carry with it no obligation on the part of the Government of the United States to extend like compensation to others not embraced within the class which it had selected.
In the case, however, of John Kater, No. 19, claimant was allowed for two horses taken by Sheridan’s army on its raid through the valley of Virginia in August, 1864, all the commissioners joining in this award, General Sheridan’s order of August 16, 1864, directing the seizure of mules, horses, and cattle for the use of the Army, having in effect promised compensation for such property to loyal citizens.
In the case of Henry Henderson, No. 41, the claim was for 112 bales of cotton seized by the United States military forces under orders of General Banks, on plantations in the State of Louisiana, outside of the Federal lines, carried to Port Hudson, and there used in the breastworks of the besieging army of General Banks for the reduction of that post.
On the part of the United States it was claimed that this was a taking of enemy’s property within the enemy’s country for strictly military use, justified by the laws of war, and for which the United States were not liable to make compensation, the claimant being permanently domiciled in the enemy’s country, and subject to the same treatment as other enemies. The claim was allowed by the majority of the commission, Mr. Commissioner Frazer dissenting and placing on the records of the commission a dissenting opinion, a copy of which will be found in the appendix, F.
c. Claims for property alleged to have been taken and appropriated by the United States forces within the enemy’s country, not appearing to have been taken under any regular requisition or order for military use, or by command of any authorized officer.
These claims were numerous and of great variety in regard to the circumstances of the alleged taking. It is somewhat difficult to draw the precise line of distinction by which the majority of the commission were guided in their decisions. It may, perhaps, be said generally that the commission (Mr. Commissioner Frazer dissenting) made awards in favor of the claimant whenever it appeared by satisfactory evidence that the property so taken was a legitimate subject of military use and was actually applied to military uses, even though such application was not made through the regular and ordinary channels. On the other hand, where the property was in its nature not a proper subject of military use, or, being such, was not applied to military use, or where the taking appeared to be mere acts of unauthorized pillage or marauding, the claims were disallowed.[Page 45]
In the case of Thomas Stirling, No. 12, were included as well claims for property destroyed by the United States Army in its marches and encampments in the State of Virginia, as for horses, carriages, cattle, hogs, flour, corn, and bacon alleged to have been taken and carried off by the soldiers. The proofs showed nothing beyond the disappearance of the property in the presence of the United States Army. The decision of the commission, in which all the commissioners joined, was made in the following words:
The acts done upon which this claim is based seem to have been the ordinary results incident to the march of an invading army in a hostile territory, with possibly some unauthorized acts of destruction and pillage by the soldiery, with no proof of appropriation by the United States. Under such circumstances there is no ground for a valid claim against the United States. The claim is, therefore, disallowed.
In the case of the Misses Hayes, No. 100, milliners, at Jackson, Miss., a claim was made for a stock of millinery goods and like property, alleged to have been taken by soldiers of the United States Army on the first capture of Jackson, in May, 1863. The acts complained of appeared, if committed by United States soldiers, to have been acts of pillage merely, and the claim was unanimously disallowed.
In the cases of Michael Grace, No. 132, Elizabeth Bostock, No. 133, Thomas McMahon, No. 136, and others, at Savannah, being claims for property alleged to have been taken and appropriated by United States soldiers, the same appeared to have been by acts of unauthorized pillage, and were rejected.
In the cases of Bridget Lavell, No. 130, Ann O’Hara, No. 135, William H. Bennett, No. 137, and William Cleary, No. 220, at Savannah, awards were made, Mr. Commissioner Frazer dissenting, for property taken by the United States forces, though without proof of the intervention of an authorized officer, the property being in the nature of commissary’s and quartermaster’s supplies, applicable to the proper use of the Army, and actually, though perhaps irregularly, appropriated to Army use.
In the case of David Jacobs, No. 236, large claims were made for watches, jewelry, silks, and other valuable goods, liquors and tobacco, alleged to have been taken by General Sherman’s army at Columbia, on the capture of that city, as well as for the destruction of other property by the burning of that city.
An award was made, Mr. Commissioner Frazer dissenting, for the tobacco taken from this claimant, on proof that it was carried off in Army wagons, tobacco being allowed as an Army ration. All the other claims for property taken from this claimant were disallowed.
In the case of Watkins and Donnelly, administrators, No. 329, an award was made against the United States, in which all the commissioners [Page 46] joined, for property pillaged by United States soldiers in the night from a country store in Missouri, a State not in insurrection, upon proof showing great neglect of discipline on the part of Colonel Jennison, the commanding officer, and his neglect and refusal to take any steps for the surrender of the stolen property or the punishment of the offenders when notified of the facts, and that a part, at least, of the stolen property was then in possession of his troops.
d. Claims for the use and occupation of lands and buildings within the loyal portions of the United States, or within those portions of the insurrectionary States permanently reclaimed by the United States, and for damages resulting from such use and occupation.
In the case of James Crutchett, No. 4, claim was made for the use and occupation of a factory building of the claimant in the city of Washington, which was from July, 1861, to the end of the war, occupied by the United States as barracks, quarters, and offices for troops and officers, and also for large resulting damages to the claimant’s business by this occupation of the buildings and removal of the machinery, &c.
The proofs showed that the premises were taken possession of by the United States under the right of eminent domain for military use, and that partial payments of the rent had been made to the claimant, who had been for many years domiciled in the city of Washington.
The counsel of the United States filed a demurrer to the memorial, specifying, among other grounds, that the claimant and his property, thus domiciled and situated, were subject to the exercise of the right of eminent domain over the property by the United States; and that for the exercise of such right and the occupation of the property, full compensation could be had by the claimant under the municipal laws and authority of the United States; and that such acts were, therefore, not the subject of international reclamation.
On the argument of the demurrer the counsel for the United States contended that the claimant, domiciled within the United States, was subject to all the burdens and liabilities of other inhabitants of those States, and could claim no better position or superior rights in regard to the United States than a native-born or naturalized citizen of those States. That for the occupation of his premises he was entitled, under the Constitution of the United States, to compensation, and that the Court of Claims had full jurisdiction of the case, and could have afforded him full redress.
The counsel cited the letter of Earl Granville to Mr. Stewart, (No. 23 of parliamentary papers, No. 4, on the Franco-German war, 1871, British state papers;) Professor Bernard’s “Neutrality of Great Britain,” &c., pp. 440, 454; also, the note of Mr. Abbott (Lord Tenterden) relating to this identical claim of Mr. Crutchett, id., 456; also, the case of William [Page 47] Cook before the commissioners under the convention of 1853 between the United States and Great Britain, (United States Senate documents, first and second sessions Thirty-fourth Congress, vol. 15, No. 103, pp. 169, 463;) also, the case of the United States vs. O’Keeffe, in the Supreme Court of the United States, (11 Wall., 178;) and the cases of Waters, (4 C. Cls. Rep., 390;) Russell, (5 id., 120;) Filor vs. United States, (9 Wall., 45;) also, Campbell’s case, (5 C. Cls. Rep., 252;) and Provine’s case, (id., 455.)
On the part of the claimant it was contended that, while the claimant was entitled to compensation for the use of his property under the Constitution of the United States, the jurisdiction of the Court of Claims in the case was taken away by the act of Congress of July 4, 1864, (13 Stat at L., 381,) citing Filor vs. United States, (9 Wall., 45.)
The demurrer was overruled, and an award was subsequently made in favor of the claimant for the value of the use and occupation, in which all the commissioners joined.
The case of William H. Lane, No. 9, was a claim for occupation by the United States of a building of the claimant in Memphis, in 1864; that of Eleanor W. Turner, No. 34, was a claim for like occupation of a house in New Orleans by the United States military authorities; and that of Eliza B. Nelson, No. 140, was a claim for like occupation of a building at Helena, Ark; all said occupations being while the respective places were permanently held by the United States. Awards were made in favor of the claimant in each case, Mr. Commissioner Frazer dissenting in Nos. 34 and 140.
e. Claims for property taken under the abandoned and captured property act of March 12, 1863, (12 Stat, at L., 820.)
This act provided in effect for the turning over of property captured or seized as abandoned by the military and naval authorities of the United States to agents, to be appointed by the Secretary of the Treasury, for the sale of such property, and the payment of the proceeds into the Treasury; and provided that the owner of such property might, within two years after the suppression of the rebellion, bring suit for the proceeds in the Court of Claims, and, on proof of his ownership and right to the proceeds, and that he had never given aid or comfort to the rebellion, should be entitled to recover the net proceeds. The act was undoubtedly intended to apply particularly to cotton and the other staple products of the Southern States. To such products only it was in practice applied.
Many claims were brought before the commission for property, principally cotton, taken under this act. Most of the claims thus brought had been prosecuted in the Court of Claims, some of which were still pending in that court; some were pending on appeal in the [Page 48] Supreme Court; in some the Court of Claims had given judgment in favor of the claimants for the net proceeds, the claimants now claiming here that such amount was less than the full value of their property, to which they claimed themselves entitled; and in some judgment had gone against the claimant in the Court of Claims, and no appeal had been taken. In some cases the claimants were domiciled within the insurrectionary States, and in others within the British dominions. In a few cases no suit had been prosecuted in the Court of Claims. The agent of the United States interposed demurrers in several cases, including all the different classes above named.
On the argument it was contended for the United States that the right of capture, by a belligerent, of private enemy’s property on land was permitted by the laws of war; that that right was specially applicable to the case of a great staple like cotton, upon which the enemy principally depended for his military and naval supplies, and for his credit and means to carry on the war; that by the abandoned and captured property act of 12th March, 1863, the United States had in no respect abandoned or waived this right, but that that act constituted merely an act of grace in favor of individuals who might show themselves personally free from complicity with the rebellion; that under that act neutral aliens stood upon the same footing with loyal citizens, and were entitled to the same rights given to such citizens by the act, and subject only to the same disabilities; that the owner of property thus captured within the enemy’s country had no right of reclamation against the United States, except that given by the act, and that that remedy must be pursued in the form given, and before the tribunal specified in the act.
He cited Vattel, book 3, c. 9, §§ 161, 163, 164; Twiss, vol. 2, (war,) pp. 122 to 124; Rutherforth, book 2, c. 9, § 16; Mrs. Alexander’s Cotton, 2 Wall., 404; the United States vs. Padelford, 9 id., 531; the United States vs. O’Keeffe, 11 id., 178; 1 Kent’s Com., pp. 92, 93.
On the part of Her Majesty’s counsel representing the claimants, it was contended—
- That the personal property of the inhabitants of the insurrectionary States whether citizens or aliens, neither by its locality nor by its character as product of the soil, was the lawful subject of capture as prize and booty of war.
- That in this respect the article of cotton is not distinguishable from other property.
- That the Government of the United States has never claimed or asserted title to such personal property as prize and booty of war, but, on the contrary, by legislation has impliedly disclaimed such title.
- That the property for the destruction or appropriation of which these claimants demand indemnity never ceased to be their property, but continued such, notwithstanding the fact of war and the fact of seizure or appropriation by the military authorities of the United States.
- That their right to be indemnified for such seizure or appropriation does not depend in any degree upon any municipal legislation of the United States either recognizing the right or providing a remedy complete or partial, but rests upon principles of the public law, recognized as well by the United States as by all other civilized nations.
- 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.
- 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.
- 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 Cle-worth, 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 [Page 50] 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 Barclay, 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 Hampton 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 commanding [Page 51] 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.[Page 52]
The case was unanimously disallowed for lack of proof of the material 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. II. Haddon, No. 107; Brown and Sharp, No. 33; David Jacobs, No. 236; Martha M. Calderwood, No. 360; John W. Carmalt, No. 89; Wood & Hey worth, 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 necessity 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 [Page 53] government, as the great staple from which were derived the principal means of that government for the carrying oh 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 enemies, 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 Hey worth, 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 Gumming, 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 [Page 54] 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 [Page 55] 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 dwelling-house 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 Mc-Clellan’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.[Page 56]
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 question 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.
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 [Page 57] 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 responsible 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 responsibility 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 [Page 58] Constitution of the United States. All others are usurpers and pretenders. But, further, a State of the Union has no political existence which can he 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 1881, 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 [Page 59] under the rules prescribed the claimants were unable to remove the tobacco. In the cases of Laurie, Son & Co. and Irvin & Co. it was alleged that the tobacco remained stored in Richmond until the burning of that city by the rebels on the 3d April, 1865. In the case of O’Connor it was further alleged that in April, 1865, claimant sent a vessel from Ireland destined for Richmond, for the purpose of carrying away his tobacco, which vessel arrived at Hampton Roads in June, 1865, but was warned off by a public armed vessel of the United States and compelled to return to Dublin without the tobacco. In this case it was further alleged that a part of the tobacco was destroyed by the conflagration kindled by order of the confederate authorities on the 3d April, 1865; that another portion was destroyed by an accidental fire in March, 1863, but which occurred in consequence of the disturbed condition of affairs then existing in Richmond; that another portion was seized for taxes levied by the confederate government, and another portion used and destroyed by the authorities of the Confederate States for experimental purposes; and it was alleged that all these losses of Mr. O’Connor were solely in consequence of the failure of the United States to maintain and enforce their authority in the State of Virginia, and to suppress the civil and military disorders then existing there.
A demurrer was interposed on behalf of the United States in each of the three cases.
Her Majesty’s counsel filed an argument in Nos. 321 and 322, in which he contended that the memorials showed a case where, by the acts of the United States, the claimants were prevented from removing their tobacco from the seat of war, where it was exposed to danger; and that but for such prohibition they would have removed and saved it; but that they were compelled to leave it in the hostile country, where it ultimately perished from one of the dangers incident to the war; that the acts of the United States alleged in the memorial, by which the claimants were prevented from removing their tobacco, were not lawful acts under international law.
That, by the statute of 13th July, 1861, (12 Stat, at L.,) commercial intercourse between the States in rebellion and the loyal States was prohibited, subject only to the license and permission of the President “in such articles, and for such time and by such persons as he in his discretion may think most conducive to the public interest, and such intercourse, so far as by him licensed, shall be conducted and carried on only in pursuance of rules and regulations prescribed by the Secretary of the Treasury;” that by the regulations issued by the Secretary of the Treasury under this act, a tax was imposed upon such permits, and a special tax upon property to be brought out under them, and it was provided that such permits should only be granted to loyal citizens of the United States.
That this act and the subsequent legislation of the United States did [Page 60] not provide for blockade or non-intercourse jure belli, but were acts regulating intercourse by municipal statute between different sections of the territory of the United States; that these statutes worked injustice to the claimants, and deprived them of privileges to which they were entitled by the treaty between the United States and Great Britain; that the loss of the property in question was caused by them, and therefore was a legitimate subject of international reclamation before the commission.
That, considering the prohibition in the light of a belligerent act, the United States were bound, in analogy to maritime blockade, to allow a reasonable time for the claimants to bring out their property; and, in further analogy to the law of maritime blockade, that, as a belligerent cannot blockade a port against neutrals while he allows his own or his enemy’s merchant-vessels privilege of ingress and egress for the purposes of trade, the United States cannot rightfully permit their own citizens to trade with the insurgents under permits, while prohibiting trade to neutral aliens and others without permits.
He cited the letter of Mr. Cass, Secretary of State, to Mr. Mason, United States minister to France, in June, 1859, reported in Dana’s Wheaton, 672, n.; 1 Kent’s Com., 146; The Grey Jacket, 5 Wall., 342; The William Bagaley, id., 408; The United States vs. Lane, 8 Wall., 185; The Francisca, 10 Moore’s P. C. R., 87; The Ouachita Cotton, 6 Wall., 531; Mitchell vs. Harmony, 13 How., 115.
The commission unanimously, and without hearing argument for the United States, sustained the respective demurrers, and disallowed the claims.
In the case of James Stewart, No. 339, it was alleged that the claimant, having purchased certain cotton situated upon the Mississippi River, at Dead Man’s Bend, below Natchez, sent a steamboat to remove the cotton, but that the steamboat was improperly forbidden to land by the captain of a gun-boat then cruising opposite the place where the cotton was stored; that the claimant was thus prevented from removing his cotton, which was soon afterward burned by rebel scouts.
Various questions of fact arose in this case as to the title of the claimant; but it was maintained on the part of the United States that, upon the facts alleged, no reclamation could lie against the United States; that the discretion of the commanding officer of the gun-boat as to permitting or not permitting vessels to land, even for the removal of property for which permits from the civil authorities were held, was absolute; and that the alleged act of the officer, in prohibiting the steamboat from approaching the land and removing the property, was within the scope of his authority, and in the exercise of his duty; that the subsequent destruction of the property by the rebels was not a necessary or natural consequence of any wrongful act of the United States or any officer of the United States, and that no liability existed against the United States in respect of the transaction.
The claim was disallowed, all the commissioners agreeing.[Page 61]
4.—Claims for damages for alleged wrongful arrest and imprisonment.
These claims were one hundred in number, and the total amount of damages claimed, in all, was nearly $10,000,000, exclusive of interest; or, adding interest at the rate allowed by the commission, say $16,000,000.
In thirty four of the cases awards were made in favor of the claimants against the United States, in all amounting to $167,911. In sixty-four cases these claims were disallowed; one case was dismissed without prejudice for impertinent and scandalous language used in the memorial, and one was withdrawn by Her Majesty’s agent by leave of the commission.
The question early arose before the commission whether in case of death prior to the presentation of the claim of the party against whose person the wrongful acts were alleged to have been committed, the claim for such injuries was to be considered as surviving to the personal representatives. This question was raised by demurrer interposed on behalf of the United States, in the cases of Edward McHugh, No. 357; Elizabeth Sherman, No. 359; and Elizabeth Brain, No. 447.
In the case of Mrs. Sherman, No. 359, all connection between the injuries alleged and the death of the intestate was disclaimed by the memorial.
In the cases of Mrs. Brain, No. 447, and of McHugh, No. 357, there were allegations that the injuries complained of caused or contributed to cause the death of the intestate; but there was no allegation of any local statute allowing damages in favor of personal representatives for a wrongful injury causing death.
On the part of the United States it was claimed that, as by the common law both of Great Britain and of the United States, claims for injuries to the person did not survive to the personal representatives, such claims were not to be considered as within the submission by article 12. That the claims which by that article were submitted could not be taken to comprehend claims of a character not recognized by the municipal laws of either of the countries parties to the treaty.
Her Majesty’s counsel contended that the municipal laws of the two countries were not to be taken as controlling the rights of claimants in this regard; that claims for injuries to the person, whether such injuries caused death or not, were, in the diplomatic intercourse of civilized nations, treated as a proper subject of international reclamation in behalf of the personal representatives of the person injured after his death. He cited the practice of the commissions under the convention between the United States and New Granada, of 10th September, 1857, (12 Stat, at L., 985,) and under the treaty of Guadalupe Hidalgo, of 2d February, 1848, between the United States and Mexico, (9 Stat, at L., 933, art, 13.)
In the case of McHugh, No. 357, where the deceased died unmarried and leaving only collateral relatives not dependent on him for support, [Page 62] entitled to inherit, the commission unanimously sustained the demurrer and disallowed the claim.
In the cases of Mrs. Sherman, No. 359, and Mrs. Brain, No. 447, in both which cases the deceased left a widow and minor children, the commission, Mr. Commissioner Frazer dissenting, overruled the demurrers. Mr. Commissioner Frazer read an opinion for sustaining the demurrers in each of the three cases, which will be found in the appendix, I.
It may be added that on final hearing on the merits the claim of Mrs. Sherman was unanimously disallowed; and though an award was made (Mr. Commissioner Frazer dissenting) in favor of Mrs. Brain on account of property taken from her husband, that award included no damages for imprisonment.
The following cases are selected as class cases illustrating the holdings of the commission upon the various questions involved in these claims.
In the case of Ernest W. Pratt, No. 6, it was alleged that the claimant arrived in New York on a British mail-steamer from Nassau, on the night of the 17th March, 1865; that before leaving the vessel he was arrested by order of General Dix, then in command of the United States forces in and around New York, his luggage and papers searched, and he himself committed to prison, where he was detained until the 25th June following, a period of one hundred and seven days, when he was discharged without trial.
That he had received at Nassau, from the United States consul there, an endorsement upon his discharge from the steamship City of Richmond, of which he had been first mate, certifying that he was entitled to pass to the United States as a British subject, which certificate had been given to him by the consul with the assurance that it had all the effect of a regular passport.
It appeared that in October, 1869, he had been about to commence suit against General Dix to recover damages for his false imprisonment, and his counsel having informed the Secretary of State of the United States of his intention to bring such suit, the Secretary, by letter to his counsel in answer, suggested whether it was not expedient to “await the result of the deliberation of this (the United States) Government and that of Great Britain upon a proposition for the establishment or adjudication, among other things, of claims like that of Mr. Pratt;” and the claimant averred that in conformity with this suggestion he omitted to bring his suit against General Dix.
The City of Richmond, of which vessel the claimant had been first mate, had been engaged in January, 1865, in carrying crew, arms, and ammunition from London to the rebel cruiser Stonewall, which received substantially her entire crew and armament of small-arms and ammunition by that means. On parting with the Stonewall, the City of Richmond steamed to Bermuda, and thence to Nassau, where her officers and [Page 63] men were discharged, the claimant immediately proceeding to New York, as above stated.
The claimant alleged in his memorial, however, that he shipped upon the City of Richmond in good faith for an ordinary voyage to the West Indies, and without information or suspicion that “her voyage was in any way connected with either of the belligerent parties in the United States,” and that, on finding her engaged in supplying the Stonewall, he had protested to his captain, who paid no attention to his protest, and required him to obey orders on pain of arrest for mutiny. The fact of the claimant’s having been thus engaged on the City of Richmond was reported to General Dix, and this, in connection with his arrival in New York from Nassau, constituted the grounds of his arrest by General Dix.
On the part of the United States it was claimed that the fact of the claimant’s having been actively engaged in aiding the enemies of the United States, and that he immediately thereafter came from Nassau, the principal port in the Atlantic from which intercourse with the States in rebellion was kept up through the blockade, to New York, justified the authorities of the United States in arresting and holding him both as a prisoner of war and as a probable spy.
On the part of the claimant it was contended that there was no proof of any offence committed by the claimant against the laws of the United States, or the laws or principles of neutrality. That even if he had voluntarily participated in the cruise of the City of Richmond to equip the Stonewall, this fact would have furnished no justification for his subsequent arrest in New York, though it might have sufficed to determine Her Majesty’s government not to interfere for his protection or indemnity. That the informality in his passport was caused, if not contrived, by the United States consul at Nassau, and that the assurance by that officer to the claimant that the passport was a sufficient one was in bad faith, and made with a view to the claimant’s arrest when he should arrive in the city of New York, the consul having sent by the same ship a letter addressed to General Dix, giving him the information upon which he acted; and that the claimant’s imprisonment was unnecessarily and unjustly severe and prolonged.
The commission unanimously awarded to the claimant the sum of $1,200.
The cases of John C. Rahming, No. 7; Joseph Eneas, No. 126; and Joseph W. Binney, No. 352, were of substantially the same character, and were all decided at the same time. These claimants were all domiciled in the city of New York, and there engaged in trade. All were carrying on a considerable trade with the port of Nassau, and were arrested on the charge of carrying on an unlawful traffic with the enemies of the United States under color of their trade with Nassau. Rahming and Eneas were both arrested on the 31st December, 1863, and confined [Page 64] under military authority in Fort Lafayette, until July 2, 1864, and then discharged without trial, on giving bonds for their appearance if called on for trial by the United States authorities. Rahming had also been previously arrested, on a charge of having shipped arms to the rebels, in September, 1861, and had then been detained as a prisoner in Fort Lafayette for fifteen days. Binney was arrested on the 14th June, 1864, imprisoned in Fort Lafayette under military authority for five weeks, and then transferred to a jail in the city of New York, where he was detained seventeen days longer and was then discharged by General Dix without any bonds or security required.
In each of these cases it was alleged by the claimant, and proofs were taken in support of such allegations, that the claimants were innocent of the offences charged against them; that their imprisonment was unnecessarily and improperly protracted; and that they received improper and unnecessarily severe treatment during their imprisonment. Proofs were taken on the part of the United States to show the charges against them well founded, and to rebut the charges of improper treatment. In each of the cases allegations were also made of large resulting damages to the claimants by reason of their imprisonment.
Rahming, by his memorial, claimed damages $580,800, besides interest. He was awarded by the majority of the commission (Mr. Commissioner Frazer dissenting on the question of amount merely) the sum of $38,500.
Eneas claimed damages $720,000, besides interest, and was awarded $1,540, all the commissioners joining.
Binney claimed $100,000, besides interest, and was awarded $5,390, all the commissioners joining.
In each of the cases I am advised that the decision turned upon questions of fact, all the commissioners agreeing that the proofs, though sufficient to warrant the arrest in each case, did not leave the truth of the charges free from doubt; and that the detention of the prisoners without trial was unnecessarily protracted. Mr. Commissioner Frazer, read an opinion in the case of Rahming, which will be found in the appendix, I.
In the case of John Carville Stovin, No. 23, claimant was arrested at Cumberland, Md., in October, 1861, on the charge of disloyalty, in attending secession meetings in Cumberland, and being the means of transmitting information to the enemy. He was taken to Fort Mc-Henry, there detained for about five weeks, and discharged without trial. He alleged that his business as a manufacturer at Cumberland was stopped, and in effect destroyed by his arrest, and claimed damages $380,794.27, besides interest; including, however, some fire-wood, hay, corn, and oats, alleged to have been taken and appropriated by the United States soldiers. He alleged, also, ill-treatment while in confinement. Proofs were taken on both sides on the question of his [Page 65] disloyal conduct, and it was contended on the part of the United States that the facts of the case justified his arrest as a disloyal person, openly giving aid and comfort to the rebellion by his language and expressions of sympathy, in a village situated upon the frontiers of the enemy’s country, and where such conduct involved danger to the military operations of the United States.
On the part of the claimant the charges of disloyal conduct and language were denied, and proof was adduced to show him a law-abiding and peaceable inhabitant.
The commission gave an award to the claimant of $8,300, all the commissioners joining.
In the case of Frank Russell Reading, No. 43, the claimant was arrested in the city of Washington on the 6th July, 1864, that city then being threatened by the rebel forces under General Early; was brought to trial before a military commission in Washington on the charge of uttering disloyal and treasonable language in the District of Columbia when threatened by the enemy, such language being calculated to give aid, comfort, and assistance to the enemy. He was found guilty by the commission, and sentenced to imprisonment for five years, with hard labor, at the Dry Tortugas, or such other military prison as the Secretary of War might select. Under this sentence he was imprisoned at Fort Delaware from the 30th August, 1864, till 1st June, 1865.
On the part of the United States it was contended that the military commission was a lawful tribunal, competent for the trial and punishment of military offences, and having full jurisdiction of the case of the claimant, both as to subject-matter and person; that at the time of his arrest and trial Washington was a city in military occupation, environed by forts of the United States, occupied and defended by their armies, the headquarters of the Commander-in-Chief of the Army and Navy of the United States, and, as the capital of the country, always a vital point of attack for the rebel forces, and at this specific time the actual objective point of a vigorous and determined attack by the enemy, who actually reached, as their advanced post, on the 12th July, Fort Stevens, within the limits of the District of Columbia and within four or five miles of the Capitol.
That the offence charged against Reading was a purely military offence, of which the civil tribunals had not cognizance, and so was not within the principle held by the Supreme Court in the case of Milligan, (4 Wall., 2.)
That Reading having appeared in person and by counsel before the military tribunal, and having pleaded in chief, without raising any question to the jurisdiction, could not be heard to question the jurisdiction of the tribunal as to his person merely; and that the commission having by law jurisdiction of the subject-matter of the charge, the failure to object to jurisdiction as to the person obviated all question as to [Page 66] their complete jurisdiction. The counsel for the United States cited the case of Vallandigham, (1 Wall., 243.)
On the part of the claimant it was contended that the military tribunal had no jurisdiction whatever, and that the imprisonment of the claimant under it was wholly without authority of law.
The commission gave a unanimous award in favor of the claimant for $15,400.
In the case of John I. Shaver, No. 51, the memorial alleged that the claimant, being at the time domiciled in Canada, but travelling in the United States on the business of the Grand Trunk Railway Company, a Canadian corporation, of which he was an agent, was arrested at Detroit, on the 15th October, 1801, by direction of Mr. Seward, the Secretary of State of the United States; that he was taken thence to Fort Lafayette, in New York Harbor, and confined there, and subsequently at Fort Warren, in Boston Harbor, until the 6th January, 1862. He alleged that by his arrest he was thrown out of lucrative employment as agent of the railway company named; that by it he lost the confidence of his employers and was unable to regain his position after his release; and that he suffered large pecuniary losses in consequence. He claimed damages $100,000.
The arrest was made upon information communicated to Mr. Seward that the claimant was engaged in conveying communications between the rebels in Canada and those within the insurrectionary States. The proofs failed to sustain the charge, and it appeared that Mr. Kennedy, chief of police of the city of New York, immediately after the arrest of the claimant, reported to the State Department that he found no proofs to warrant his detention, or to implicate him in any improper communication with the enemy.
The commission awarded the claimant $30,204, Mr. Commissioner Frazer dissenting on the question of amount only.
In the case of Samuel G. Levy, No. 61, it appeared that the claimant, a resident of Canada, on landing in Boston from a British steamship from Liverpool in May, 1864, was taken thence to New York, and there detained for about eight days, on a charge of being engaged in blockade-running. At the end of that time he was discharged upon giving bail for his appearance within six months, if required. He alleged large consequential damages by interference with his due attention to his business, and by the enforced breaking of an engagement of marriage in consesequence of his arrest, and claimed as damages, £20,000.
The commission unanimously gave him an award of $930.
In the case of James Stott, No. 271, it appeared that the claimant, domiciled in the State of Maine, was arrested at Dexter, Me., September 2, 1863, on the charge of being a deserter from a cavalry regiment in the United States service; was sent thence to the regiment from which he was [Page 67] alleged to have deserted, at Warren ton, Va., where it plainly appeared that the charge was unfounded, it being a case of mistaken identity. He was detained until the 9th of November, 1863; and, for the purpose of making him some compensation as to loss of time, and of giving him transportation back to his home, was mustered into the United States service and discharged with the pay of a private soldier for the time he had been detained, and with transportation back to his home.
An award was made for $775 in favor of the claimant, in which all the commissioners joined.
John I. Crawford, No. 79, was arrested in the city of New York, on the 10th of May, 1864; sent to Fort Lafayette, and there detained until the 27th of July, 1864, when he was brought to trial before a military commission in the city of New York, on the charge of violation of the laws of war, in passing through the military lines of the enemy, first, from South Carolina, by way of Richmond, to New York; second, from New York again, by way of Nassau and Wilmington, through the blockade, to South Carolina; and again from South Carolina, by way of Richmond, to New York; and also by purchasing goods in New York, and sending the in thence through the lines to Richmond, Va. He was, convicted on all the specifications except that relating to the purchasing and sending of goods, and was sentenced to give bonds in such sum and with such sureties as should be satisfactory to the general in command of the department, that he would not visit, traffic, or correspond with the States in rebellion, nor give aid, comfort, or information to the enemy during the war, in default of giving such bonds to be confined at hard labor during the war. The bond was immediately given, and Crawford was discharged. The proofs before the commission fully sustained the findings of the military tribunal.
On the part of the claimant it was contended that the military tribunal was without jurisdiction, and that the claimant’s imprisonment and detention were unlawful.
The memorial claimed $500,000 as damages, and the commission unanimously disallowed the claim.
In the case of John Carmody, No. 85, it appeared that the claimant, domiciled in New Orleans, was, in March, 1865, conscripted into the military service of the United States; the notice of his conscription requiring him to report for military service was addressed to him by the name of John Kemdy, and on receiving it he procured from the British consul at New Orleans a certificate of his British nationality, which he alleged that he presented to the officer in charge of the office at which he was required to report, but two days after was arrested by a squad of United States soldiers, and was detained in a military prison for some five or six weeks. The arrest and detention evidently arose from mistake growing out of the confusion of names. The memorial [Page 68] claimed $100,000 damages, besides interest, and the commission unanimously awarded the claimant $500.
In the case of William Patrick, No. 97, it appeared that the claimant a British merchant, domiciled in New York, was, on the 28th August, 1861, arrested and committed to Fort Lafayette, where he was detained till the 13th September following, when he was discharged. His arrest was based on the charge that the firm in New York of which he was a member, and which had a branch house also at Mobile, Ala., was a channel for carrying on correspondence between rebels in Europe and those in the insurrectionary States. Representations by highly respectable citizens of New York of Mr. Patrick’s loyalty were made to the Secretary of State, and the British minister also intervened in his behalf. Investigation showed that the charge against Mr. Patrick was without foundation, and he was discharged after a confinement of seventeen days. The proofs established Mr. Patrick to have been a gentleman of high social and business standing, and also to have been in conduct marked by loyalty and good faith toward the Government during the rebellion, and to have furnished liberal contributions in its aid. His arrest was undoubtedly caused by false or erroneous information.
On behalf of the claimant punitory damages were claimed. On the part of the United States it was insisted that no such damages could be allowed; that Mr. Patrick, domiciled within the United States, was exposed in the same degree with citizens of those States to arrest on false charges or erroneous information, and that, having been discharged within a reasonable time for inquiry to be made, he was not entitled to claim damages against the United States. That if any damages were awarded to him, they should be such only as would afford him fair compensation for the injury inflicted.
The memorial claimed $100,000, besides interest. The commission awarded the claimant $5,160, Mr. Commissioner Gurney dissenting on the question of amount.
In the case of Joseph J. Bevitt, No. 104, the claimant, until that time domiciled in South Carolina and Virginia, left Richmond in April, 1863, and passed through the rebel lines to the Potomac River, was there taken on board a United States transport steamer on the 30th April, 1863, taken to Washington, detained in the Old Capitol prison until the 19th May, and then sent back into the confederacy.
On the part of the claimant, it was contended that Bevitt, being a British subject, and not having offended against the laws of the United States, or taken part in the domestic strife then in progress, was entitled to such egress without molestation by the public authorities.
On the part of the United States it was maintained that the attempt of the claimant to enter the loyal portion of the United States from the enemy’s country, and through his military lines, after having voluntarily [Page 69] remained within the enemy’s country during two years of the war, was one which the United States might lawfully prevent or punish, and that their sending him back into the enemy’s country, from which he came, was an act permitted by public law.
The commission disallowed the claim, Mr. Commissioner Gurney dissenting.
In the case of William Ashton, No. 325, the claimant, until then domiciled in the State of South Carolina, in February, 1863, came north through the Federal lines under a pass from the confederate General Lee, and while crossing the Potomac River into the State of Maryland was arrested by the naval patrol, on the 7th February, 1863. He was taken to Washington, there detained until the 11th May, 1863, and then sent back through the lines into the enemy’s country.
On the part of the United States it was contended that the case was parallel with that of Bevitt, above reported, and that the arrest, detention, and return of the claimant were lawful acts under the recognized laws of war.
The commission awarded to him the sum of $6,000, Mr. Commissioner Frazer dissenting.
The undersigned finds difficulty in reconciling the decision of the commission in this case with that in the case of Bevitt. It may be noted, however, that Bevitt was detained but twenty days before being sent back, while Ashton was detained three months and four days.
In the case of Thomas Barry, No. 127, the claimant, domiciled at New Orleans, alleged that, on the 15th March, 1864, he was arrested without any cause or provocation, but arbitrarily and maliciously, by a provost -marshal under the orders of General Banks, then in command of the department; was committed to the parish prison, there confined for ten weeks, and then released on giving a bond conditioned that he should report daily to the provost-marshal in the city of New Orleans. That he continued so to report until the 31st December, 1864, when the bond was cancelled and the claimant fully discharged. He claimed damages $50,000. The proofs showed that he was arrested in the act of clandestinely and in disguise attempting to pass from New Orleans through the lines into the enemy’s country, having upon his person letters to residents within the enemy’s lines, and carrying confederate money—the use of which was forbidden by the Federal authorities. That only two months before he had perpetrated the same offence in the same disguise; had visited many places within the enemy’s lines, and had returned into the Federal lines in the same clandestine manner. Before his arrest he had applied for permits to go within the confederate lines for the alleged purpose of looking up and bringing back cotton alleged to have been owned by him; but such permission had been refused.
The claim was unanimously disallowed.[Page 70]
In the case of Henry Glover, No. 134, the claimant, a resident of the State of Georgia, was, in November, 1864, in company with a companion, in Jones County, Georgia, within the enemy’s territory, overtaken by a detachment of cavalry from the corps of General Kilpatrick, forming a part of the flanking force of General Sherman’s army in the march from Atlanta to Savannah. His companion fled and was fired upon; claimant waited, was arrested and detained for twenty-four hours, when he was discharged, it appearing that he was a civilian and a British subject.
His claim was disallowed, all the commissioners agreeing.
The case of Thomas H. Facer, No. 203, was similar in character to that of Glover, and was disallowed in like manner.
In the case of the administrators of James Syme, No. 139, it appeared that the decedent had been for many years domiciled at New Orleans, and there carrying on a large trade as a wholesale and retail druggist; that on the 28th August, 1862, he was arrested and taken before Major-General Butler, then in command of the Department of the Gulf, and there arraigned on charges styled in the memorial “false, wicked, and malicious,” to the effect that he had aided and abetted the so-called confederates by the shipment of sulphur, drugs, and medicines into their lines, and that he had violated his neutrality. General Butler? being satisfied of the truth of the charges, condemned him, without the intervention of any court or military tribunal, to be imprisoned at Fort Pickens for three years at hard labor with ball and chain; the ball and chain were, however, within a few days, and before the commencement of execution of the order, remitted. He was detained in confinement at New Orleans for about six weeks; then sent under guard to Fort Pickens, in Pensacola Harbor, Florida, and there confined until about the 1st March, 1863, when he was brought back to New Orleans, and there detained during an investigation by a military commission, which reported him not guilty of the charges upon which he was imprisoned Pending the proceedings of this commission he was discharged from confinement by order of General Banks, who had succeeded General Butler in command, on giving a bond, with surety, in the sum of $20,000, conditioned for his appearance on requirement by the Government. Upon the report of the commission the bond was canceled August 28, 1863. At the same time with his arrest his drug-store and contents, in New Orleans, were seized and appropriated to the use of the United States, and remained in their possession until about the 1st May, 1864, when the store, with so much of the stock of drugs, &c., as had not been used, was surrendered to his possession by order of the War Department.
A large amount of testimony was taken on both sides upon the question of his guilt or innocence of the charges on which he was imprisoned.[Page 71]
On the part of the United States, it was also proved that the decedent, in November, 1861, and again in March, 1862, had accepted commissions as surgeon—first with the rank of captain, and afterwards with the rank of major—in the battalion of the Louisiana State militia designated as the British Fusiliers; that this battalion was a regularly organized portion of the State militia of the rebel State of Louisiana, but was organized under the reservation that its members should be required to serve only within the limits of the city of New Orleans; that, on the acceptance of these commissions, the decedent was required by law to take, and did take, an oath faithfully to discharge the duties of the office to which he had been appointed, and to support, protect, and defend the constitution of the State of Louisiana and of the Confederate States; that at the time of accepting these com missions, respectively, the decedent was above the age of forty-five years, and was exempt by the laws of the State of Louisiana from militia service, by reason of age, even if otherwise liable by reason of nationality or domicile. Evidence was also given on the part of the United States to the effect that Dr. Syme, shortly after the occupation of New Orleans by the Federal forces, refused to sell medical and surgical supplies to medical officers of the United States Army. Dr. Syme died in January, 1872, before the filing of the memorial, leaving a widow and one son entitled to inherit his estate, both born within the United States and always domiciled there.
On the part of the United States it was contended that by the acceptance of these commissions and the taking of the oaths above recited, Dr. Syme had deprived himself of the condition of a neutral alien and assumed the character of an enemy of the United States, and was not entitled to a standing as a British subject under the treaty; that the proofs fully sustained the charges upon which he was condemned by General Butler; that if any doubt existed upon the proofs now before the commission as to the truth of those charges, the evidence before General Butler and upon which he acted was certainly sufficient to sustain his finding and to justify the condemnation pronounced by him upon the proofs before him; that as military commander of a captured city within the enemy’s country, then strictly and solely under military government, General Butler was vested with full authority to administer military law, either in person or through military courts and tribunals organized under his order; that the offense of which he found Dr. Syme guilty was a crime under military law of a high grade, and justifying the sentence pronounced upon him.
The memorial claimed damages for the arrest and imprisonment, $100,000; for the drugs and other property of the decedent taken and appropriated by the United States, (less the value of the amount returned,) and the rent of the store, $166,925; and damages by the breaking up of the business of the decedent, and the loss of profits which he would have derived from the business, $150,000, besides interest.
The commission (Mr. Commissioner Frazer dissenting) made an award [Page 72] in favor of the claimants for $116,200. I am advised that this award included nothing for damages for imprisonment, but was made solely in respect of the drugs and other property taken and appropriated by the United States, and the rent of the drug-store while occupied by them. Mr. Commissioner Frazer expressed his views upon the case as follows:
Being over the military age, and exempt from military duty as a druggist also, Dr. Syme took a commission in the British Fusiliers and an oath of office to support the rebel confederacy, and evinced his hostility further, as I deem the weight of the evidence to show, by refusing to sell goods to the United States after New Orleans fell into Federal possession. This made him an actual enemy, and he could have no standing to prosecute a claim before this commission. The beneficiaries—his wife and child—have none, because they are Americans. His condemnation by General Butler was upon what appeared at the time to be satisfactory evidence, though it was subsequently shown before the military commission, organized under the order of General Banks, that he was probably innocent of the charges upon which he was arrested. He was restored to liberty as soon as an investigation could conveniently be had; and what remained unconsumed of his confiscated goods was also restored, together with the possession of his building.
In so much of this opinion of Mr. Commissioner Frazer as relates to the sufficiency of the evidence upon which General Butler acted to sustain his finding and sentence, and as relates to the probable actual innocence of Br. Syme as appearing before the commission, I am advised that the majority of the commission concurred.
In the case of William B. Booth, No. 143, a claim was made for $56,000 damages for the alleged wrongful arrest of the claimant in the neighborhood of Fort Jackson, Louisiana, and subsequent imprisonment. He was arrested by United States soldiers on the 8th August, 1862, taken to Fort Jackson, and there confined till the 28th August; then sent to Fort Pickens, Pensacola Harbor, and there confined till the 15th August, 1863; then taken back to New Orleans and detained till the 26th August, 1863, when he was unconditionally released.
Previous to his arrest, Dr. Booth, who resided in Louisiana, two miles from the forts and outside the lines of military occupation by the United States, had been on the request of Dr. Gordon, the surgeon of the forts, visiting and prescribing for the prisoners and Federal soldiers at the forts. Gen. Neal Dow, the commander, learning the fact, had notified him that he could not be permitted to visit the forts without taking the oath of allegiance, or giving his parole of honor not to communicate information to the enemy. Dr. Booth declined to do either of these things. After his arrest he still continued his refusal to give the required parole, and, persisting in his refusal, General Dow ordered his transfer to Fort Pickens and his detention there. At this time Forts Jackson and Saint Philip, lying on the opposite banks of the Mississippi some one hundred miles or more below the city of New Orleans, were occupied by a United States force of about six hundred soldiers, and about the same number of liberated slaves, under the command of General Dow. The garrisons were weak, and a [Page 73] large number of the troops actually there were prostrated by sickness. General Dow deemed it of the utmost importance that a knowledge of the weakness of his garrison should be kept from the enemy. The refusal of Dr. Booth to give the required parole roused the suspicions of General Dow, and when persisted in, led to his sending the claim ant to Fort Pickens. During his stay at Fort Pickens, and after his retransfer thence to New Orleans, he still persisted in refusing to give the required parole, and was finally discharged, after a confinement of nearly thirteen months, unconditionally and without parole. Lord Lyons, during his confinement, in a letter to Mr. Coppell, British consul at New Orleans, stated that the required parole was deemed not unreasonable by Her Majesty’s government, after consulting the law officers of the Grown.
On the part of the United States it was insisted that the arrest and detention of Dr. Booth were warranted as measures of just military precaution in regard to an enemy by domicile possessed of knowledge, the communication of which to the enemy would be highly dangerous to the United States, and who, by his refusal to give this proper and reasonable pledge, had, in the language of Lord Lyons, entitled the United States to treat him as a suspected person.
The memorial of Dr. Booth also included claims to the amount of $83,890, besides interest, for property of the claimant alleged to have been taken and appropriated by the United States.
The commission (Mr. Commissioner Frazer dissenting) awarded to the claimant the sum of $24,900, which award was, as I am advised, wholly in respect of property taken, and included nothing on account of the arrest and imprisonment.
John McCann, No. 173, and John Murta, No. 195, natives of Ireland and domiciled in Luzerne County, Pennsylvania, were arrested there—McCann in September, 1863, and Murta in November, 1863–—by United States troops, under authority of a provost-marshal; were taken to Fort Mifflin and there confined, McCann till March and Murta till April, 1864.
The proofs showed that at the time of their arrest an organized conspiracy existed in Luzerne County and vicinity to resist the Federal draft for troops; that great violence was used against Federal officers; that open defiance of the Federal authority was made in public meetings of the mining population; that loyal citizens sustaining the Government had been assassinated, and measures had been adopted to ambuscade and massacre Federal troops, should they be sent there to enforce the draft; that the principal disturbing element in this conspiracy was the Irish Catholic miners; that not only secret associations were formed, but public meetings were openly held for the avowed purpose of stopping the mines and thus stopping the war; that a large number of persons regarded as the ringleaders and most dangerous persons in this movement were arrested, and among them these two claimants. No proof was made of the complicity of either of the claimants [Page 74] with the actual resistance to the draft or violation of law; but Murta was shown to have been a member of the organization known as the “Knights of the Golden Circle,” created to oppose the draft and aid the rebellion. Neither of the claimants was ever brought to trial.
In the case of McCann an award was made in favor of the claimant for $3,000, in which all the commissioners joined. In the case of Murta an award was made for $1,200, Mr. Commissioner Frazer dissenting.
In the case of Thomas Riley, No. 192, the claimant, a resident of Luzerne County, Pennsylvania, was drafted into the United States military service in November, 1863, was taken to Philadelphia and there held in the United States military barracks for about six weeks, when he was taken sick and sent to the hospital, and there remained confined by disease till the 6th of April, 1864, when he was discharged by the War Department, through the intervention of Lord Lyons, as being a subject of Great Britain, having received his pay as a soldier for the time during which he was held.
On the part of the United States it was contended that he was held simply in consequence of his failure to comply with the regulations of the provost-marshal’s department in regard to showing proof of alienage. The case showed, however, that the proofs of his alienage were submitted by Lord Lyons to Mr. Seward in November, 1863, within a few days after his arrest, and his discharge was not ordered till about four months after.
The commission unanimously awarded him the sum of $300.
Edward McCabe, No. 197, was drafted into the military service of the United States in Queens County, New York, in September, 1883. He appeared before the enrolling-board and claimed exemption; was informed of the regulation prescribing the method of making the necessary proof; was given time to file it, but failing to do so was arrested by order of the provost-marshal and detained for two days, when, having furnished the necessary proof, he was discharged.
The commission unanimously disallowed his claim.
Patrick J. O’Mulligan, No. 476, was drafted in Cayuga County, New York, in October, 1863. He appeared before the board of enrollment and claimed exemption as a British subject, but failed to comply with the regulations for the proof of alienage. He was detained for twenty-four hours, and on physical examination by the surgeon was found unfit for military service and was discharged. For these grievances he claimed the sum of $800,000, besides interest.
His claim was unanimously disallowed.
In the ease of Mary Sophia Hill, No. 198, the claimant, a native of Ireland, was domiciled during the rebellion and for many years before in New Orleans. At the time of the capture of New Orleans by the [Page 75] Federal forces in 1862, she was in attendance on the confederate hospitals in Virginia, but shortly after returned to New Orleans under a proper pass. In 1863 she went to Ireland, and returned to New Orleans, taking the oath of neutrality on landing. She again left New Orleans in the fall of 1863 under a pass and went to Virginia, where she remained for five months “rendering assistance in the hospitals and to prisoners by means of flags of truce.” In 1864 she returned to New Orleans, and having no pass was arrested and detained in prison for two days; when, having satisfied the provost-marshal that she was a British subject, she was released on bail. After her discharge and while sick she alleged that she was called upon by a woman who gave the name of Ellen Williams, and gave her a note purporting to be from Gen. Tom Taylor, an officer of the confederate service commanding a post within the confederate lines in Louisiana. This woman informed claimant that she was going through the lines into the confederacy if she could get a pass from General Banks, and offered to take letters from the claimant. Claimant gave to her a letter to General Taylor, acknowledging the receipt of his letter, and saying to him, “Communicate and state what you require, and I will do all in my power; I will be here until the end of July.” She also gave to her a letter addressed to her brother, a soldier in the confederate service in Virginia, in which she denounced the “Yankees;” and said, among other things, “We have accounts of the battles in Richmond, but so hashed up to suit northern palates you can make neither head nor tail of the affair; but through my spectacles I see General Grant and his well-whipped army with their faces toward Washington and their backs to the hated city of Richmond, except those who take their summer residence at Libby. Tell the boys Banks has made a splendid commissary to Dick Taylor’s army, and they were so ungrateful as also to whip him, and very badly.” She also gave this woman another letter of similar character, addressed to Mrs. Graham, a person living in Montgomery, Alabama, within the lines of the confederacy.
These letters were delivered on the 20th May, 1864; and within a few days after she was arrested by an officer of the provost-marshal’s bureau, committed to prison, and there detained until July, when she was brought before a military commission and tried on the charge of “holding correspondence with and giving intelligence to the enemy, in violation of the Fifty-seventh Article of War,” the specifications being the written letters above named. She was found guilty of the charge except the words “and giving intelligence to;” and was sentenced to “be confined during the war, at such place as the commanding general may direct.” The proceedings and findings of the commission were approved by Major-General Hurlbut, then in command; but the sentence was so modified as to direct the claimant to be sent into the so-called confederacy as an enemy; and the provost-marshal-general was charged with the execution of the order.[Page 76]
At the time of her trial New Orleans was still under military government, but the United States district court had been reorganized under Judge Durell, and was in operation in that city. No State tribunals were in operation, nor any local tribunals, except under authority and permission of the military commander.
On the part of the claimant it was contended, first, that the claimant was not amenable to military jurisdiction, but must be tried, if at all, before the civil tribunals; second, that if amenable to military jurisdiction, the commission before which she was tried was not a competent tribunal; that by the Fifty-Seventh Article of War (2 Stat. at L., 366) the only military tribunal having cognizance of such an offence was a court-martial, a tribunal distinct and different from a military commission; third, that the finding of the military commission that she was guilty of the charge except the words “and giving intelligence to,” was in fact an acquittal, correspondence with the enemy without giving him intelligence not being a military offence or a violation of the article above referred to; fourth, that the commanding officer had no authority to change the punishment directed by the sentence of the court, and substitute banishment into the confederacy for imprisonment; that this substitution was not with the consent of the claimant, and was not a mitigation of punishment; fifth, that the letters were not in fact sent into the confederacy, but were delivered by the messenger to the United States military authorities in New Orleans, and that the evidence tended to prove that the pretended messenger to whom they were delivered was in fact a spy and agent of the United States.
On the part of the United States it was contended that the offence charged against the claimant was a military offence purely, not cognizable by the civil tribunals; that the claimant, domiciled in a city within the enemy’s country and recently captured from the enemy, held by military power only, and governed only by military authority, was amenable to military jurisdiction; that the tribunal before which she was tried was a competent military tribunal, organized under sufficient military authority, and having jurisdiction both of the subject-matter and of the person of the claimant; that irrespective of the proceedings, finding, or sentence of the commission, the commanding general had ull authority to expel the claimant from the city and send her within the enemy’s lines, on satisfactory evidence of her active sympathy with the rebellion, and of her attempt merely to communicate with the enemy, and that the modification and mitigation by the commanding general of the punishment decreed by the military tribunal was one of lawful power, and was not a matter of which the claimant could rightfully complain.
The commission gave an award in favor of the claimant for $1,560, Mr. Commissioner Frazer dissenting. This claimant was the same person whose original memorial (No. 8) was dismissed by the commission on account of its improper and indecorous language.[Page 77]
The case of Colin J. Nicolson, No. 253, may properly be reported in connection with that of Miss Hill. Nicolson, a native of Scotland, had been domiciled in New Orleans since 1852. He was arrested in that city on the 15th of September, 1864; was detained in prison till the 22d of November, 1864, when he was brought before a general court-martial in that city and tried on the charges, first, of relieving the enemy with money, by investing money in bonds of the Confederate States and transmitting the same to England for sale there; and, second, of holding correspondence with the enemy by letters passing between himself and one Violett, an enemy of the United States, resident at Mobile; and in and by such correspondence devising means for bringing cotton out of the confederacy, and disposing of it for the joint benefit of himself and Violett, and for negotiating and selling bonds of the Confederate States. He was convicted on both charges, and was sentenced to imprisonment at Fort Jefferson, Fla., or at such other place as the commanding general should direct, for five years. The sentence was approved by General Canby, commanding, and the claimant was committed to confinement at Fort Jefferson, where he remained for about nine months, when he was pardoned by the President of the United States.
The questions involved and the doctrines maintained by the respective counsel in the case of Miss Hill were urged upon the commission in this case. The counsel for the claimant further contended that the dealing in bonds of the enemy in New Orleans and transmitting them thence to England for sale was not a “relieving of the enemy with money,” or in any manner a giving of aid to the enemy, and that the correspondence of the claimant with Violett involved no aid or comfort to the enemy, gave no information to them, and constituted no military offence. He cited the first article of the treaty between the United States and Great Britain of 3d July, 1865, (8 Stat, at L.;) also Milligan’s case, (4 Wall., 2;) Egan’s case, (5 Blatchford, C. C. R., 320;) the Venus, (2 Wall., 259;) the Circassian, (id., 158;) the Ouachita cotton, (6id, 531;) Coppell vs. Hall, (7 id, 542;) Thorington vs. Smith, (8 id., 12;) the Grapeshot (9 id., 129.)
The memorial claimed $500,000 damages. The claim was disallowed by the commission, Mr. Commissioner Gurney dissenting.
In the case of James McVey, No. 208, the claimant alleged that he was twice arrested. It appeared that the first arrest was within the enemy’s lines, when he was detained for some four weeks to prevent his communication with the enemy. The second time he was arrested while in the act of carrying goods across the lines from the enemy’s country, and was held in confinement several weeks. His claim was unanimously disallowed.
Substantially similar to this last case, in regard to the character of the arrest, were the cases of Isaac Milner, No. 207, in which an award [Page 78] was made in favor of the claimant for property, but including nothing for the alleged arrest; of Samuel Simpson, No. 217, which was unanimously disallowed; of John Carew, No. 224, which was disallowed, Mr. Commissioner Gurney dissenting; of Henry F. White, No. 233, which was unanimously disallowed; and of John Gale, No. 247, in which there was an award for property, but including nothing on account of the arrest or imprisonment.
In the case of Joseph W. Scott, No. 226, the claimant, domiciled at Jacksonville, Fla., was there arrested by order of the commanding officer in November, 1864, on the charge of disloyalty, and detained in confinement for some three months. Jacksonville was an inland town, on the Saint John’s River, which came into the hands of the United States forces in February, 1864, and from that time to the close of the war was occupied by them; but the rebel forces, most of the time, were within its immediate vicinity.
On the part of the United States it was insisted that the military commander was necessarily invested with absolute power for the control of the city; and that it was his duty to take such measures as should prevent inhabitants disloyally disposed from communicating with the enemy; and that nothing in the case of Mr. Scott showed an abuse of this authority.
An award was made in favor of the claimant in respect of property taken by the United States troops, but it included nothing for imprisonment.
In the case of James T. Munroe, No. 235, claimant had embarked at New Orleans in August, 1864, on board a steamer for Matamoras, Mexico, with the machinery for erecting a saw-mill at that place. The steamer was stopped at Fort Jackson on the charge of having contraband goods on board intended for Texas, brought back to New Orleans, and the claimant was there detained by the military authorities for two days on board the steamer, and for twelve hours in the military prison at that city. It appeared that, while he was in confinement, his trunk onboard the steamer was broken open, either by the provost-guard or in consequence of their negligence, and money, wearing apparel, and other articles were stolen from it. On complaint made to Major-General Canby, in command of the city, an order was made by him declaring these transactions, if true, to be exceedingly discreditable to the guards, and directing the provost-marshal to take measures to bring the offenders to justice. An investigation was ordered, but the offenders did not appear to have been discovered, and no reparation was made to the claimant.
On the part of the United States it was urged that the arrest and detention were lawful and reasonable for the purpose of inquiry as to the character of the vessel, and that the United States were not liable to reclamation for the theft of the claimant’s property.[Page 79]
An award was made in favor of the claimant for $1,540, in which all the commissioners joined.
In the case of Susan B. Jackson, No. 255, the claimant, in behalf of herself and her four minor children, claimed damages for the arrest of John Jackson, the husband of the claimant, at Knoxville, Tenn., and his banishment within the enemy’s lines, with his family, in January, 1864. It appeared that Dr. Jackson, the husband, had been a resident of Knoxville for some years and until after the breaking out of the war; that he had sent his family to England in August, 1861, and himself followed them in June, 1862; that he returned to New York in October, 1862, and in January, 1863, having obtained the proper permission, returned to Knoxville for the alleged purpose of disposing of his property there. Instead of disposing of his property he remained at Knoxville, and there entered into trade. Both before his departure for England and after his return, in 1863, he had been an open and active sympathizer with the rebellion, denouncing the United States Government and encouraging and aiding the rebels down to the surrender of Knoxville to the United States forces in September, 1863. Evidence was also given on the part of the United States showing conduct evincing a hostile spirit toward the United States Government. On the 29th January, 1864, the following notice was addressed to him by General Foster’s provost-marshal:
Owing to your persistent disloyalty to the Government of the United States, it has been decided to send you and your family south of the Federal lines. You will, therefore, be prepared to start on receiving further notice.
The further notice was served on the 30th January, requiring him to be ready to depart on the 3d February, on which day Jackson and his family were sent through the rebel lines under a flag of truce.
An award was made in favor of the claimant in respect of property of her own appropriated to the use of the United States, but including nothing by reason of the arrest and banishment complained of.
Joseph M. P. Nolan, No. 272, was arrested by the military provost-marshal at Saint Louis, Mo., in October, 1861, on the charge of disloyalty to the United States, and of having written a letter to an alleged enemy of the United States in Canada, giving information as to military movements. He was detained in prison at Saint Louis till June, 1862, then transferred to the military prison at Alton, Ill., and there detained till August, 1863, when he was finally discharged. His release was offered him in December, 1861, and on one or two other occasions, on his giving his parole to do no act unfriendly to the United States. This parole he refused to give. Great and unnecessary hardships in connection with his confinement were alleged on the part of the claimant; and the proof conclusively showed that the prison in which he was confined at Alton was wholly unfit in its appointments and sanitary [Page 80] condition for the confinement of prisoners, especially for the large number there confined; and that at times the treatment of the prisoners, including the claimant, was harsh and cruel.
An award was made in favor of the claimant for $8,600, all the commission joining. I am advised that the majority of the commission, at least, held the original arrest of the claimant and his reasonable detention justified; but that his long confinement and improper treatment during it were not justified.
In the case of Mary Nolan, No. 273, the claimant alleged that she was arrested at Saint Louis by a detective in the employ of the United States authorities in September, 1864; taken before the provost-marshal at Saint Louis, and committed by him to the Chestnut-street prison, where she was detained for an entire day; and that she was there subjected to improper treatment. She claimed damages $10,000. The evidence in her case showed that she was brought before the provost-marshal, apparently upon a subpoena, to testify in a case before him; that she refused to testify, and defied and insulted the officer, who committed her to the city prison, where she was detained for nine or ten hours. Her allegations of improper treatment were not sustained. The commission unanimously disallowed her claim.
In the case of John F. Parr, No. 285, the claimant, a resident of Nash ville, Tenn., then in possession of the rebel forces, passed through the lines into Indiana, and thence to Buffalo, N. Y., in October, 1861. He went thence to New York City, where he bought some clothing, shoes, medicines, and other goods, and returned thence to Buffalo, where he was arrested immediately on his arrival, on the 20th of October; he was taken to Fort Lafayette in New York Harbor, there confined for about four months, and was finally discharged in February, 1862, without a trial.
An award was made in his favor for $4,800, in which all the commissioners joined. I am advised that the award proceeded on the ground that though his original arrest and reasonable detention were lawful, his detention for four months without trial was held not justified.
In the case of Richard Hall, No. 318, the claimant was arrested in Maryland, on the 8th of March, 1864; was brought before a military commission on the charge of having unlawfully passed from the loyal States through the Federal and confederate military lines into the State of Virginia, and there held illegal intercourse with the enemies of the United States, and then returned through the lines in the same manner. The military commission found him guilty of the offence charged, and sentenced him to imprisonment in Fort McHenry, Maryland, for the term of four months, and to pay a fine of $8,000, and to be imprisoned until the fine should be paid. He was accordingly imprisoned for the four months, and for twenty days thereafter, when he paid the $8,000 and was released.[Page 81]
On the part of the claimant it was alleged that his visit to Virginia was without unlawful intent and for innocent and social purposes. This allegation was answered on the part of the United States by proof that ‘the claimant took orders from the confederate military authorities at Richmond for military supplies, which he undertook to purchase for them, and that he returned through the lines with the purpose of executing such orders. The counsel for the claimant claimed that the military commission was without jurisdiction, citing the case of Milligan, (4 Wall., 2.) The counsel of the United States claimed that the offence was purely a military one and cognizable by the military tribunals under the Articles of War.
The commission (Mr. Commissioner Frazer dissenting) made an award in favor of the claimant for $2,984. I am advised that this amount was made up of the sum of $5,000, part of the fine of $6,000 imposed, which the commission deemed excessive, reduced from United States currency in which it was paid to gold, and interest added to make up the amount of the award.
In the case of Llewellyn Crowther, No. 362, the claimant was arrested in Baltimore in July, 1863, taken before Colonel Fish, then provost marshal there, and detained in confinement at the Gil more House for about’ eight hours. The arrest grew out of a quarrel between the claimant and two other persons at a hotel in Baltimore, of which complaint was made to Colonel Fish, and the claimant was charged with using seditious and disloyal language. He alleged that Colonel Fish, on the arraignment of the claimant before him, used language abusively and indecently violent toward him and toward his country and Queen. He claimed damages $10,000, and the commission unanimously awarded him the sum of $100.
In the case of John M. Vernon, No. 364, the claimant alleged that he had always been domiciled in England, the country of his nativity. It appeared, however, that he had resided in the United States most of the time since 1849, and had been there engaged in trade. He was in Europe at the breaking out of the war, but returned to the United States in June, 1861, and thence passed into the confederacy, remaining there, with the exception of a temporary absence in the latter part of 1861, till January, 1863.
He alleged that he had always maintained his neutrality between the United States and the confederate government$ that in January, 1863, he sailed from the port of Charleston in the steamer Huntress, owned by himself and laden with cotton, principally owned by himself, for Nassau, N. P.; succeeded in passing out through the blockade, but on the day after his departure, and upon the high seas between Charleston and Nassau, the steamer took fire and was destroyed, the claimant with the master and crew escaping in two ship’s boats. These boats were picked up by a [Page 82] United States war-vessel on the ocean, on the 18th January, and the claimant was carried to Hilton Head, S. C., there transferred to another vessel, carried to New York, examined before the United States marshal there, and committed to Fort Lafayette, in New York Harbor, in which fort, and afterwards in Fort Warren, Boston Harbor, he was kept confined till October, 1865, when he was released upon his written pledge that he would “sail from Boston, Mass., by the earliest opportunity, and leave the United States of America, not to return without the special permission of the President thereof.”
He alleged large losses resulting from his imprisonment, by the waste and destruction of his property in the Southern States during his imprisonment, and in consequence of his business being deprived of his personal attention; and claimed damages, in all, to the amount of £338,133.
The proofs on the part of the United States showed that, up to his departure from Charleston, in July, 1863, he had been largely and actively engaged in rendering aid to the confederate government in its war against the United States; that he individually, and as a partner in the firms of Vernon & Co., and Vernon, James & Co., had entered into large contracts with the confederate government for the supply of arms, ammunition, and military supplies, including twelve large rifled cannon, and large quantities of gun-barrels; rifles, pistols, powder, army clothing, shoes, blankets, &c.; that he had been engaged in the manufacture of arms during the war, at Wilmington, N. C., for the benefit of the confederate government. At the time of his capture some of his contracts were found upon him: these contracts also granting to his firm, on the part of the confederate government, certain privileges of purchasing cotton and tobacco, and transporting the same without hindrance, and exporting them to all ports except those of the United States, with convoy if desired. Correspondence ensued between Lord Lyons, Her Majesty’s minister at Washington, and Mr. Seward, the Secretary of State of the United States; and upon submission to Her Majesty’s legation of the proofs found upon the person of the claimant further intervention in his behalf was declined.
Mr. Stuart, then Her Majesty’s acting minister at Washington, on the 23d September, 1863, addressed to Mr. Vernon the following letter:
Sir: I beg to inform you, in reply to your letter of the 19th instant, that I lately received a dispatch from Earl Russell, stating that your case had been fully considered by Her Majesty’s government in communication with the law advisers of the Crown.
It appears to Her Majesty’s government, judging by the evidence produced, that you are a born British subject, and it does not appear that you have obtained naturalization in the United States, or exercised political privileges as a citizen.
But taking other circumstances into consideration, and more particularly that you have identified yourself in the strongest manner with the fortunes of the so-called Confederate States, and that you were, when taken, actually engaged in rendering material assistance to the government of these States, although deriving a commercial profit from so doing, Her Majesty’s government are of opinion that the United States Government are justified in treating you as a de fcato belligerent.
The evidence, moreover, shows that although, during as residence of twenty-three [Page 83] years in the Southern States, you paid occasional visits to England, you had no intention of returning to permanent residence in your native country, and that, you were practically and de facto a willing citizen of the Confederate States, engaged in equipping their army.
Her Majesty’s government, therefore, consider, under the circumstances, your release cannot be claimed as a matter of right merely because you were born a British subject, but Earl Russell desires that Her Majesty’s legation should, nevertheless, endeavor to persuade the United States Government to mitigate or shorten your captivity.
I accordingly represented to the Secretary of State, on the 10th instant, that it would be a gratification to Her Majesty’s government to learn that your captivity had been mitigated or shortened through the clemency of the United States Government, and your case is consequently again under consideration.
From that time forth Her Majesty’s government uniformly and consistently declined any international interference for the protection of Mr. Vernon, and disclaimed all pretence of right to intervene in his behalf. Sir Frederick Bruce, then Her Majesty’s minister at Washington, as late as 24th October, 1865, said in a letter to Mr. Vernon, in response to an application from him: “My instructions prohibit my interfering in your behalf.”
A labored argument was filed on behalf of the claimant, by which it was contended that the imprisonment of the claimant without trial was utterly unjustifiable; that it was prolonged in a manner never contemplated by the British authorities; that while under restraint his treatment was indefensible, and that the order of banishment from the United States, and the subsequent refusal to revoke it, were outrages against all law and justice. That the decision of Her Majesty’s government, justifying the treatment of the claimant by the United States Government as a de facto belligerent, was erroneous; that the condition of the claimant, at the time of his capture, was that of a neutral alien engaged in commercial transactions only with the confederate government, and that such transactions were not criminal and did not deprive him of his neutral character. That even if he had previously been an enemy by domicile., he had, when he embarked from Charleston on the Huntress, left the country of his former domicile without the intention of returning, and his native domicile, native allegiance, and native status had thereupon instantly reverted to him, and that the decision of Her Majesty’s government, justifying his detention by the United States, and refusing to intervene in his behalf, could not be taken as prejudicing the claimant’s individual right to reclamation under, the rules of international law. The counsel for the claimant cited, in support of these propositions, the following authorities: 4 Blackstone’s Com., 76; Halleck’s Law of War, c. 29, § 3, p. 695; 2 Kent’s Com., 49; Inglis v. The Sailors’ Snug Harbor, 3 Pet., 99; Vattel, lib. 1, c. 12, § 218; 2 Brown Civ. & Adm. law, c. 7, p. 327; The Venus, 8 Cranch, 278; The cases of Adlam, No. 40; Doyle, No. 46, and Tongue, No. 49, decided by this commission; Calvin’s case, 7 Coke; Gardner’s Inst. Int. Law, pp. 448, 489; Livingston v. Maryland Ins. Co., 1 Cranch, 542; Wheaton’s Elements, part 4, c. 1, pp. 561 to [Page 84] 569; Halleck, c. 21, § 18, p. 503; id., c. 29, § 3, p. 315; 1 Kent’s Corn., § 5, p. 73; Story’s Conflict of Laws, c. 3, § 27, p. 61; Woolsey’s Int. Law, p. 100; 1 Duer on Ins., pp. 515, 520; The Frances, 8 Cranch, 280, s. c. 1 Gall., C. C. R., 614; The Dos Hermanos, 2 Wheat., 77; The Friendschaff, 3 id., 14; The United States vs. Guillem, 11 How., 60; The Ann Green, 1 Gall. C. C. R., 275; The St. Lawrence, id., 267; Catlin vs. Gladding, 4 Mason, 308; The State vs. Hallett, 8 Ala. Rep., 159; 3 Phillimore, § 85, p. 129; id., § 4, pp. 404, 604; Twiss, § 43, p. 83; De Bargh, c. 2, p. 36; Westlake, c. 3, § 40, p. 39; 2 Wildman, pp. 15, 43; 1 id., p. 57; The Indian Chief, 3 Rob., 12; The Etrusco, id., 31; The Harmony, 2 id, 322; The Ocean, id., 91; The Virginia, 5 id., 98; Boswell’s Lessee vs. Otis, 9 How., 336.
The commission unanimously disallowed the claim.
In the case of William B. Forwood, No. 394, the claimant, a British subject, domiciled in England, in October, 1861, landed at New York from the steamer City of Washington from Queenstown. He was arrested immediately on landing from the steamer, on information that he had, both in Liverpool and on board the steamer upon his passage, expressed himself as a warm friend of the rebellion, and that he was connected with a firm engaged in running the blockade and upon the suspicion that his visit to New York was for the purpose of promoting correspondence with the enemy. He was detained at the office of the chief of police in New York for some three or four hours, his person and baggage examined, and he was then discharged. He claimed, as damages for his arrest, £5,000. The commission disallowed his claim, Mr. Commissioner Gurney dissenting.
In the cases of Stephen Jarman, No. 418; Robert Bowden, No. 419; Samuel Joseph Redgate, No. 420; and John Henry Ellsworth, No. 421; the claimants were respectively the master and passengers on the British steamship Peterhoff, captured as prize of war by the United States steamer Vanderbilt, near the Island of St. Thomas, in February, 1863. The case of the Peterhoff will be more fully reported under a subsequent head. Bowden, Red gate, and Ellsworth were respectively in charge of portions of the cargo of the Peterhoff, either as owners or consignees, or as agents for owners or consignees. The Peterhoff was taken, on her capture, first to Key West and thence to New York, where she was libelled in the United States district court. Jarman, Bowden, and Redgate were taken with the vessel to New York, and detained till their depositions, in preparatorio, were taken, when they were discharged. Ellsworth was discharged at Key West, without being taken to New York or examined as a witness. He was detained on board the Peterhoff from her capture, 25th February, till the 25th March, eighteen days after her arrival at Key West. Jarman, Bowden, and Redgate were examined as witnesses in New York on the 1st day of April, the fourth day after the arrival of the Peterhoff in New York [Page 85] Harbor, and were respectively discharged immediately after their examination.
On the part of the claimants, respectively, it was contended that the capture of the Peterhoff was unlawful, and the detention of these claimants, respectively, was likewise unwarranted by prize law.
On the part of the United States it was contended that the Peterhoff was rightfully captured on justifiable cause, and that the detention of these claimants as witnesses was warranted by the law and practice of the prize courts; and that as to Ellsworth, his release at Key West without examination as a witnesss, and without being taken to New York where the vessel was libelled, could not be considered as an aggravation of his imprisonment, nor as giving him any right of reclamation, which he would not have had if taken to New York and examined as a witness, as he lawfully might have been.
The commission unanimously disallowed all the claims.
The case of Philip George Beaumont Dean, No. 465, was of like character with the four last named. The claimant was captured on board the British brig Dashing Wave, (whose case will be hereafter reported,) off the mouth of the Rio Grande River, in November, 1863. He was rated as an able seaman on the brig, though in fact a passenger and a son of one of the owners of the brig. He was taken with the vessel to New Orleans, where the vessel was libelled; was examined as a witness in preparatorio 28th November, 1863, six days after the arrival of the vessel at New Orleans, and was then released. His memorial alleged that from that time till the 23d July, 1864, he was “detained on parole by the commissioners of the United States Government” at New Orleans, but his evidence showed no such detention or parole, and it appeared that his stay in New Orleans after his examination was a voluntary one, for the purpose of looking after the interests of the owners of the vessel, and cargo.
His claim was unanimously disallowed by the commission.
In the case of George F. Cauty, No. 443, the claimant was a British subject, for several years domiciled in Central America, but from March to December, 1863, temporarily resident in the city of New York, engaged, as he alleged, in commercial enterprises connected with Central America. He was arrested in New York by the United States military authorities on the eve of his departure for Nicaragua by steamer, 24th December, 1863; detained in a prison in the city of New York for three days, then transferred to Fort Lafayette, and there confined till the 14th March, 1864, when he was discharged without trial and without information of the grounds of his arrest, except the general statement that he had been engaged in aiding the enemies of the United States, or violating the neutrality laws and regulations. It appeared that he was arrested in company with one Dr. Segur, in connection with whom he had been [Page 86] engaged in purchasing arms, as was alleged by them, for the state of San Salvador, and that the circumstances of the purchase and shipment of these arms were such as to lead to the strong suspicion that they were in fact purchased and shipped for the use of the confederate government. Shortly after his arrest he was brought before a military commission at New York and interrogated as to his connection with Dr. Segur, and purchase of arms made by him. Most of these questions he refused to answer, on the ground that he had “been advised not to compromise himself or his friends in any shape or manner.” He was thereupon remanded to prison. The charge that the arms were in any way designed to aid the enemies of the United States was not sustained by the proofs. The claimant alleged large pecuniary losses resulting from his imprisonment.
The commission made an award in his favor for $15,700, Mr. Commissioner Frazer dissenting on the question of amount.
John Tovell, No. 446, a Baptist clergyman, was arrested at Nashville, Term., on the 9th November, 1862, on the charge of disloyalty to the United States, and of having in the course of a funeral oration delivered at Nashville used language strongly denunciatory of the military authorities in charge of Nashville, and tending to incite disaffection and rebellion. Nashville was a town within the insurrectionary states, captured by the United States in the spring of 1862, and held by them as a military post and under military government at the time of the claimant’s arrest. He was detained in prison till the 8th June, 1863, and then banished into the confederate lines.
The commission awarded him $830, Mr. Commissioner Frazer dissenting.
Henry E. Smith, No. 461, a physician, domiciled at Louisville, Ky., within a State not in rebellion, was arrested at that place by the military authorities of the United States, in July, 1864, on a charge of circulating treasonable documents, the documents in question being copies of a handsomely printed placard highly laudatory of the confederate General Robert E. Lee, as a patriot, Christian, and hero of unfaltering devotion to duty, &c. Louisville and the State in which it was situaedt contained a large proportion of sympathizers with the rebellion; and it was contended on the part of the United States that the circulation of this document by Dr. Smith was made with the direct purpose and intent of giving aid to the rebel “cause $ that it was calculated to give such aid, and that his, imprisonment and detention were lawful military acts The claimant was imprisoned for about fourteen weeks, and was then discharged without trial.
The commission gave an award for $1,540, Mr. Commissioner Frazer dissenting.[Page 87]
Robert McKeown, No. 463, was in March, 1863, while employed as a ship-carpenter in the service of the United States Government on board the gunboat Benton, on the Mississippi, River, near the mouth of the Yazoo, arrested by the commanding officer of the gun-boat, confined in the hold for about four days, then transferred to another gun-boat, and taken to Cairo, Ill., where he was discharged on the 5th April, after a confinement, in all, of thirteen days He alleged improper treatment during his confinement, inconsequence of which his health was materially injured. His arrest was upon the charge of disloyal and seditious language against the United States while employed on board the gunboat.
The commission unanimously made an award in his favor for $1,467.
5. Prize cases.
These claims related to vessels and their cargoes captured as prize by the United States during the war, and libelled in the prize-courts of the United States. In a portion of them final sentence of condemnation of the vessel or cargo, or both, was given by the courts of the United States, and the claim was now brought for the alleged value of such vessels and cargoes, alleging the condemnation to have been wrongful. In the other cases judgment of restitution was given by the courts, and the claim was now brought for damages by reason of the alleged wrongful capture and detention, and for costs and expenses incurred in respect of the same.
The whole number of memorials filed by different claimants for such captures was seventy-six, some of the memorials covering claims for several different vessels, as in the case of Sanders & Sons, No. 281, in which damages were claimed for the capture and condemnation of twenty seven vessels.
The whole number of vessels captured, in respect of which and their cargoes claims were interposed, was seventy, in some instances many claims of different alleged owners being interposed in respect of the same vessel and her cargo, as in the case of the Peterhoff, in regard to which, and different portions of her cargo, twenty-two memorials were filed.
In respect of the capture of six of these vessels and their cargoes, or portions of the same, awards of greater or less amount were made against the United States.
In respect of the remaining sixty-four, the claims were wholly disallowed.
The whole amount claimed as damages against the United States in all these eases was $5,560,924, besides interest, amounting, with the addition of interest for the average time claimed, to $9,064,306.
The whole amount of the allowances, in respect of the six vessels as to which awards were made, was $582,177.[Page 88]
The question was early raised, on the part of the United States, as to the jurisdiction of these prize cases by the commission, both in respect to cases where the decision of the ultimate appellate tribunal of the United States had been had, and to those in which no appeal had been prosecuted on the part of the claimants to such ultimate tribunal. As to the former class of cases, the undersigned may properly state that he personally entertained no doubt of the jurisdiction of the commission, as an international tribunal, to review the decisions of the prize-courts of the United States, where the patties alleging themselves aggrieved had prosecuted their claims by appeal to the court of last resort. As this jurisdiction, however, had been sometimes questioned, he deemed it desirable that a formal adjudication by the commission should be had upon this question. The commission unanimously sustained their jurisdiction in this class of cases, and, as will be seen, all the members of the commission at some time joined in awards against the United States in such cases.
The question as to the jurisdiction of the commission in cases where the party complaining had failed to prosecute his appeal from the prize court of original jurisdiction to the court of ultimate appellate jurisdiction, was raised by demurrer in several cases, and was argued at length in the case of the British brig Napier, Ryerson and others, claimants, No. 147. In that case the vessel was captured as prize in July, 1862, by a United States vessel of war near the mouth of the Gape Fear River, on which river is situated the port of Wilmington, in North Carolina, a blockaded port. She had sailed from Turk’s Island, one of the Bahamas, with a cargo of salt, on a voyage alleged to have been destined for the port of Beaufort, N. C., then not blockaded, but in possession of the United States forces. She was taken by the captors to the port of Philadelphia, and there libelled in the United States district court for the eastern district of Pennsylvania, on the charge of attempting and intending to violate the blockade of the port of Wilmington, or other blockaded port in the insurrectionary States, and was condemned by that court as lawful prize, and sold under the decree. The vessel belonged to the port of Yarmouth, Nova Scotia, and was owned by British subjects there resident. No appeal appeared to have been taken from the decision of the district court by which the vessel was condemned. The memorial contained a general averment that neither the vessel nor cargo was “liable to confiscation” under the law of nations or the laws of the United States. A demurrer was interposed on behalf of the United States, specifying, among other grounds of demurrer, the following:
That the memorial does not show any appeal taken from the judgment of said court to the appellate tribunals of the United States having appellate jurisdiction thereof; and does not show that the remedy of the claimants for their alleged grievance under the laws of the United States had been sought or pursued to or in the judicial tribunal of the United States having ultimate appellate jurisdiction of the said matter.
On the argument of this case on demurrer, it was contended, on the part of the United States, that until the claimant has exhausted his remedy by appeal, and finds himself still aggrieved by the judicial tribunal of last resort, he has no ground of reclamation against the United States as the workers of injustice against him. That it is only in the event of final failure of justice, after pursuit of all the regular and ordinary means of redress, that any adjudication is to be considered as working wrong against a foreign litigant so as to entitle him to reclamation through the intervention of his own government. That the litigant who stops short of this and submits to the judgment of the inferior court, without seeking a review and reversal of such judgment by the appellate tribunal, in effect concedes the correctness of the judgment to which he submits. The counsel for the United States cited the report of Mr. Murray, (afterwards Lord Mansfield,) 1753, upon the reprisals made by the King of Prussia upon the Silesian Loan; Wheaton’s History of the Law of Nations, pp. 210, 211; Wild man’s Institutes, vol. 1, pp. 353, 354; Rutherforth’s Institutes, vol. 2, pp. 596–7–8–9; the Opinions of Dr. Nicholl and Mr. Pinkney in the case of the Betsy, before the commission under the seventh article of the treaty of 13th November, 1794, between the United States and Great Britain. (Wheaton’s Life of Pinkney, pp. 193 to 276.)
Her Britannic Majesty’s counsel, on behalf of the claimants in this and other cases, maintained that the doctrines of the publicists in regard to the necessity of a party aggrieved following out his complete remedy in the appellate prize courts of the nation of whose acts he complained, applied only to the question as to grounds of war and reprisals, and did not apply to the question of jurisdiction by an international tribunal, established by treaty, with the large powers and jurisdiction conferred by the treaty upon this commission. That under the terms of the treaty the commission had jurisdiction of all wrongful acts committed by the authorities of the United States upon the persons or property of British subjects; that the case of the claimant here was founded, not on an alleged denial of justice, but on an act alleged to be in violation of the law of nations, to wit, the wrongful capture of the claimant’s vessel, which act had been adopted by the United States, whose armed force committed the wrong, and of which wrongful act the United States had received the benefit. He cited Dana’s Wheaton, § 292; Grotius, book 3, c. 2, §§ 4, 5; Wildman, vol. 1, p. 197; the treaty between the United States and Great Britain of 1794, (8 Stat, at L., 121,) and the case of the bark Jones, before the commission under the convention of 1853 between the United States and Great Britain. (Report of that commission, p. 83.)
The commission held, in effect, that, under the treaty, they had jurisdiction, notwithstanding the failure of the claimant to pursue his remedy by appeal to the court of last resort; but that such failure on his part would be considered conclusive against him, unless satisfactory reasons [Page 90] were given for the omission to appeal. It was thereupon unanimously ordered by the commission that the demurrers be overruled, but that the claimants, in all the prize cases in which appeals had not been taken and pursued to the court of last resort, should file with the commission their reasons for such omissions or failures to take and prosecute such appeals.
Subsequently the claimants in this case filed an affidavit, assigning as their reasons for not appealing from the decree of the district court the following:
1st. Because it was universally known in Philadelphia at the time said decree passed that appeals from the prize courts there by claimants were almost uniformly confirmed with costs. 2d. That public opinion there was in sympathy with such confirmations, under the suspicion that commercial men in this province (Nova Scotia) were in sympathy with the confederates. 3d. That the other owners of the Napier were not of pecuniary ability to procure the necessary sureties without much inconvenience, nor to sustain further heavy costs, and the burden of loss added to injury, especially as we had already expended nearly $500 in counsel fees, agency, and travelling expenses connected with this seizure.
On the filing of these “reasons” the commission, without further argument, held them insufficient to excuse the want of appeal, and unanimously disallowed the claim. On the decision of the original question Mr. Commissioner Frazer read an opinion which will be found in the appendix, L.
Under the order for claimants in cases in which no appeal had been taken to file their reasons for non-appeal, such reasons were filed and passed upon in the following cases:
John W. Carmalt, No. 89, claimant for part of the cargo of the ship Amelia, captured and condemned by the United States, alleged, as his excuse for non-appeal to the Supreme Court of the United States, that the claimant, being then within the State of South Carolina, then at war with the United States, was unable to communicate with counsel in Philadelphia, where the vessel was libelled, or to take any measures for prosecuting such appeal on account of the war then raging.
The commission (Mr. Commissioner Frazer dissenting) held these reasons sufficient; but subsequently, on the hearing on the merits, unanimously disallowed the claimant’s claim, it appearing that he was at the time of the alleged capture domiciled within the Confederate States, and his property, therefore, liable to capture on the high seas as enemy’s property.
In the case of the brig Ariel, R. M. Carson, claimant, No. 178, the reason assigned for non-appeal was that the claimant had never been aware, until the filing of the demurrer to his memorial before the commission, “that there could have been any appeal from the decision of the United States prize court that condemned the vessel and cargo.”
The commission unanimously disallowed the claim, on the ground of the insufficiency of this reason.[Page 91]
In the case of the schooner Argonaut, Joseph B. Hey cock, administrator, No. 263, and Frederick Wm. Ruggles, No. 264, Claimants, the reasons for non-appeal assigned were that the counsel consulted by the claimants advised them that there was no necessity for taking such appeal, unless they intended to commence a suit in a civil court for damages, and that such claims, arising during the war, would, without doubt, be ultimately made the subject of arbitration, on which advice the claimants acted, and so omitted to appeal.
The commission unanimously disallowed the claim on the ground of the insufficiency of the reasons.
In the cases of the brig Sarah Starr and the schooner Aigburth, Cowlam Graveley, claimant, No. 292, the reasons assigned for non-appeal were that the claimant had become impoverished by his losses during the war, and the expenses of prosecuting his claims in the prize-court of original jurisdiction, and was unable to incur further expense; and also that he was advised that in the excited state of the country, and in view of the tenor of other decisions of the Supreme Court of the United States, he would not be likely to obtain impartial justice by such appeal.
The commission unanimously disallowed the claim for insufficiency of the reasons.
In the case of the schooner Prince Leopold, Henry A. McLeod, claimant, No. 306, the claimant assigned as reasons for his failure to appeal, his poverty and consequent inability to meet the drafts of his proctor and counsel in New York, and his expectation that his proctor would prosecute the appeal at his own expense, of the failure of which expectation he was not advised in season to secure the services of another lawyer on those terms.
The commission unanimously held the reasons insufficient, and disallowed the claims.
In the case of the M. S. Perry, otherwise known as the “Salvor,” John McLennan, claimant, No. 370, the claimant alleged as reasons for non-appeal that the case of the vessel was hurried through the prize-court so rapidly that he, residing in Havana, had no opportunity to interpose any claim or defense; that he was advised by letter from Lord Lyons, Her Majesty’s minister at Washington, that he would have full opportunity to defend, but that subsequently it appeared that the vessel and cargo had been condemned and sold some days before this letter was written, and that, though he attempted by correspondence to secure a defence of his rights, all such efforts proved futile and unavailing.
The commission accepted these reasons as sufficient, Mr. Commissioner Frazer dissenting, and directed the case to be heard on its merits. On final hearing the claim was disallowed, as will hereafter appear.[Page 92]
In the ease of the ship Will-o’-the-wisp, J. G. A. Creighton and others, claimants, No. 378, the reasons assigned for non-appeal were, in substance, that they did not know the case was appealable, and that they supposed that their proper appeal was to their own government.
The reasons were held insufficient, and the claim disallowed, Mr. Commissioner Gurney dissenting.
In the case of the brig Minnie, Wm. H. Fisher, claimant, No. 379, the reasons for non-appeal were substantially the same as alleged in the case of the Ariel, No. 178, supra.
The commission unanimously disallowed the claim for the insufficiency of the reasons.
In the case, of the schooner Adelso, Henry Horton, claimant, No. 437, the claimant assigned as his reasons for non-appeal, his poverty and his apprehensions of the danger of investing more money in law expenses.
The commission unanimously adjudged the reasons insufficient, and disallowed the claim.
The above were the only cases in which the sufficiency of the reasons assigned for non-appeal were specifically passed upon by the commission. In several other cases reasons for non-appeal were filed, but were not passed upon by the commission before the final disposition of the cases upon the merits.
The action of the commission upon those cases, respectively, will appear in the following notes, under the heads of the respective vessels.
It maybe stated generally, that although in two or three cases, as above noted, the commission expressly held the excuse for non-appeal to be sufficient to entertain jurisdiction of the claim upon the merits, and although in other cases the commission did not expressly disallow the claim on the ground of the insufficiency of the reasons for non-appeal, no award was made against the United States in any case in which the claimants had not pursued their remedy in the prize courts of the United States by appeal to the court of last resort. I am advised that Mr. Commissioner Frazer was of opinion that nothing short of the misfeasance or default of the capturing Government, by means of which an appeal was prevented, was sufficient to excuse the failure to appeal, and that in accordance with this view he held the reasons assigned in every case before the ‘commission to be insufficient.
The following cases cover all the prize cases not disposed of by the rulings of the commission on the question of non-appeal, as above stated:
The steamship Dolphin; Richard Henry Eustice, No. 166, claimant for part of cargo and for wages, &c.
This vessel was captured by a United States war-vessel while on a [Page 93] voyage from Liverpool, ostensibly to Nassau, in the island of New Providence. She was taken into the port, of Key West, and there libelled in the United States district court for the southern district of Florida. A claim was interposed in that court on behalf of William J. Grazebrooke, merchant of Liverpool, as the owner of the vessel.
The memorial of the claimant here alleged that the prize court refused to condemn the steamer as lawful prize, but she was, notwithstanding, with her cargo, taken possession of by the United States Government, and no part thereof ever returned to the owner. The proofs, however, showed that the vessel and cargo were regularly condemned in the prize court, and that no appeal was taken from the judgment of that court. Among her cargo were found 46 cases containing 920 rifles, and 20 cases containing 2,240 cavalry swords, all entered upon her manifest under the name of hardware. The proofs before the prize court satisfied Judge Marvin, before whom the trial was had, that the ultimate destination of both vessel and cargo was Charleston or Wilmington, both blockaded ports of the Confederate States; and he accordingly decreed condemnation of both vessel and cargo as lawful prize. The proofs in the prize court were not put in evidence before the commission, and the claimant submitted his case upon his own deposition, taken on notice, in the course of which he refused to answer various pertinent questions propounded on cross-examination, touching his experience as a blockade-runner, and his intentions in connection with the voyage of the Dolphin.
No reasons for non-appeal were filed, the case having been disposed of on the merits without waiting for such reasons.
The commission, without hearing any argument on the part of the United States, unanimously disallowed the claim.
The brig Isabella Thompson; James McDaniel, No. 168, claimant for vessel; Nehemiah K. Clements, No. 167, claimant for cargo.
This vessel was captured in June, 1863, by a United States cruiser on her return voyage from Nassau, New Providence, to Halifax, Nova Scotia, where she was owned, having been chartered by the owner, McDaniel, to William Pryor & Sons, of Halifax, agents of Sanders & Sons, of Nassau, for a voyage from Halifax to Nassau and back to Halifax. The claimant Clements in his memorial alleged that the vessel was chartered by himself. The claimant McDaniel in his memorial alleged that the charter was to Messrs. Wm. Pryor & Sons. The proofs in both cases showed that the charter, although in form to Messrs. Pryor & Sons, was taken by them as the agents of and for the benefit of Messrs. Sanders & Sons. She was taken by the captors into the port of New York and there libelled in the United States district court. Judgment of restitution was rendered in that court, but without costs or damages to the claimants. (Blatchford’s Prize Cases, 377.) From so much of the decree as refused costs and damages the claimants respectively appealed [Page 94] to the Supreme Court of the United States, where the judgment of the district court was affirmed, the supreme court saying that a case of probable cause was clearly made out, and expressing doubt whether the vessel and cargo should not have been condemned by the court below on the evidence before it. The case in the Supreme Court is reported under the name of “The Thompson,” (3 Wallace Supreme Court Reports, p. 155.) The evidence showed that the vessel had arrived at Nassau from Halifax, and had discharged her outward cargo. She then took on board a cargo of turpentine and cotton, the product of the insurrectionary States, which she received in the harbor from on board another vessel, the Argyle, which bad run the blockade from Wilmington, N. C., with this cargo, which she discharged directly upon the Isabella Thompson, having hauled alongside her.
The claimant Clements alleged in his memorial that he was the sole owner of the cargo which was, purchased by him at Nassau; that he had made an arrangement with Messrs. Martin & Co., of Nassau, that they should have one-half the cargo when they paid for the same, but that Martin & Co. had never paid for their half, but after the seizure and redelivery of the cargo to the claimant, refused to pay for their one-half, and the claimant thereby remained sole owner. In the course of the litigation in the prize court this claimant had several times stated on oath that one-half the cargo belonged to him and one-half to Messrs. Martin & Co. In his testimony before the commission he stated in effect that the cargo was shipped by Messrs. Martin & Co., on joint account, and that after restoration to himself he settled with Martin &Co., he paying all expenses, and on such settlement it was agreed that he should be personally entitled to all damages recovered from the United States Government. Martin & Co. were shown to have been actively engaged in blockade-running; and their letters found on board the Isabella Thompson, to their correspondents at Halifax and New York, sufficiently indicated that the cargo in question was run out by the Argyle on joint account of themselves and the claimant Clements.
On cross-examination Clements refused to answer who constituted the firm of Martin & Co., and whether he was himself a member of that firm; whether they had general authority to make purchases for and shipments to him, or only special authority for particular purchases; whether they shipped goods on his account to the blockaded ports of the insurrectionary States, or purchased goods in those ports for him. He also refused to state more particularly the terms of the contract or agreement by which he became the owner of Martin & Co.’s half of the cargo, and evaded the question whether he ever paid for the cargo seized in the Isabella Thompson, and if so, to whom, how much, and when. He admitted himself the owner of the Argyle, the blockade-runner from which the Isabella Thompson received the cargo in question.
On the part of the United States it was maintained that the proofs [Page 95] before the prize court, especially as supported by the testimony of the claimant Clements before the commission, clearly established that as to the cargo there was not only ample probable cause to justify the capture, but that the proof was ample for its condemnation; that the cargo was never landed at Nassau, and certainly never became a part of the common stock of that port, but was in the course of-a continuous voyage from the blockaded port of Wilmington to Halifax, having been merely trans-shipped from the Argyle to the Isabella Thompson, without change of ownership or of original destination. That the evasive, uncandid, and untruthful testimony of the claimant Clements when testifying in his own behalf, and his refusal to answer on cross-examination legitimate and pertinent questions, exposed his claim to every possible implication against its merits. And that the only error committed by the prize court was in adjudging restitution instead of condemnation of the cargo. That if the seizure of the cargo was justifiable, the seizure and detention of the vessel were also justifiable to the same extent, and that her owner could sustain no claim for damages where the cargo was liable to condemnation or probable cause was found for its seizure, or that of any part of it.
The counsel for the United States cited The Carl Walter, 4 C. Rob., 207; The Eliza Ann, 1 Hagg., 257; The Thomyris, Edwards’ Reps., 17; TheOstsee,2 Spinks, 186; The Leucade, id., 228, 234 to 236; 3 Phillimore, 534, 565, and authorities there cited.
Both claims were unanimously disallowed by the commission.
Thomas Grant’s tobacco, No. 211.
The claimant in this case, domiciled at Petersburgh, Va., during the war, claimed, among other matters in his memorial, $787.50, “for the loss of tobacco shipped from Wilmington, N. C, consigned to Messrs. Charles R. Somerville & Co., London, captured by the United States vessels, which tobacco was taken to New York and placed in the hands of United States officials, who sold it at a high price.” His memorial contained no other allegations concerning the tobacco or its capture. On demurrer by the United States the claim was unanimously disallowed.
The schooner Pacifique, Nazaire Lemieux, No. 215, claimant for the vessel; Harvey & Co., No. 214, claimant for the cargo.
The Pacifique was owned at Quebec, Canada East, where the claimant Lemieux resided. She was chartered to the claimants Harvey & Co. for a round voyage from Saint John’s, Newfoundland, to a port in the West Indies; thence to Cienfuegos, Cuba, and thence back to Saint John’s. She sailed from Cienfuegos on the 12th March, 1863, on her alleged return voyage to Newfoundland, upon which her proper course would have taken her along the eastern shore of Florida. She was captured on the 27th March, 1863, by a United States war-vessel, off the port of Saint Mark’s, in the Gulf of Mexico, on the western shore of Florida, and [Page 96] so near the blockaded ports of Cedar Keys and Saint Mark’s as to raise what Judge Marvin called “a very strong and violent presumption” in the mind of the capturing officer of a purpose to break the blockade. She was taken into the port of Key West, and there libelled in the United States district court. On the hearing before Judge Marvin judgment of restitution of the vessel and cargo was awarded on payment to the marshal of the pilotage and the costs of keeping the vessel while in port, probable cause of capture being certified by the judge, and costs and damages refused to the claimants.
From this judgment no appeal was taken by either party; The evidence before the prize court was not produced before the commission.
Under the order of the commission, requiring reasons for failure to appeal to be filed, the claimants filed an affidavit of Mr. Outerbridge, agent for the claimants Harvey & Co., in which he assigned as the reason for non-appeal that the master had no funds or credit at Key West to employ counsel to take an appeal from said decree, or to furnish bonds on appeal; that the master “believed that the release of the vessel and cargo imposed on him the duty of continuing his voyage; “and that he forthwith departed from Key West; and that “the claimants believed that the payment of the costs imposed, as well as the declaration of probable cause of capture, forming part of said decree, were within the ordinary discretion of the court or its officers and formed no ground of special exception.”
No distinct or separate ruling was made by the commission as to the sufficiency of these reasons for non-appeal, the question having been submitted on the final hearing of the case on its merits, and in connection with the other questions involved in the case. Judge Marvin, on the hearing, after examining the testimony and comparing the logbook, came to the conclusion that, “strange as it might seem,” the case was one of honest mistake of reckoning by the master, and that he, in fact, thought he was on the eastern side of Florida, and had mistaken the coast of Florida, which lay to the east of him, for a part of the Bahamas, some five degrees of longitude farther to the east; that in fact the vessel was innocent of any intent to break the blockade; but that the circumstances under which the vessel was found fully justified the capturing officer in making the capture, and warianted his belief that the vessel was actually engaged in an attempt to break the blockade.
On the part of the United States it was maintained—
- That the claimants having omitted to put in evidence the proofs before the prize court, those proofs must be taken by the commission as sufficient to sustain the judgment of the prize court.
- That on the evidence offered by the claimants themselves here, and on their letters to the British minister, and the protest of the master and officers of the schooner, the facts appearing fully sustained the conclusions arrived at by Judge Marvin. That under the circumstances [Page 97] appearing to the capturing officer, he was justified in making the capture and taking the vessel in for condemnation. That the capturing officer in such case did not stand in the place of a judicial officer, compelled to decide at his own peril upon the ultimate liability of a vessel to condemnation as prize, but was only bound to act honestly and fairly and upon the circumstances reasonably apparent to himself. That the fact that the vessel captured was involved in suspicious circumstances, without fault on the part of her officers, but by an honest mistake, did not change the question as to the liability of the captor to damages for wrongful seizure.
- That the excuse offered for failure to appeal from the judgment of the prize court was insufficient. That the master had power to bind his principals (the owners) for payment of counsel-fees and for the security of the sureties on the appeal bond. That the statute regulating practice in the prize courts then in force (12 Stat, at Large, 760, sec. 7) gave full authority to the judge to extend the time for taking appeal; and that the claimants having made no application for such extension certainly could not allege that it would not have been granted on proper application. And that the second reason assigned for non-appeal amounted simply to an averment that the master, as representing the claimants, and the claimants themselves, on being advised by the master of the facts, did not consider that there was any just ground of appeal from the decree of the court.
The counsel for the United States cited 3 Phillimore, 566, 567, 576; the letter of Sir William Scott and Sir John Nicholl to Mr. Jay, id., 554; the San Antonio, Acton’s Rep’s, 113; the Ostsee, Spinks’s Rap’s, 170, 171; S. C., 9 Moore’s P. C. R., 150; the George, 1 Mason, 26; the Leucade, 2 Spinks, 228, 234 to 236; 2 Rutherforth, 599.
On the part of the claimants it was contended that the case showed the vessel out of her proper course solely from the ignorance and bewilderment of her master, in consequence of thick weather and of the; vessel having drifted by strong currents, unknown to the master, who was innocent of intent to break the blockade; that these facts were established by her log and papers, and would have satisfactorily appeared to the captors by a proper inspection of the same; that the captors, having neglected to avail themselves of the knowledge thus open to them from the books and papers of the vessel, were in fault, and should have been cast in damages and costs; that no appeal could, by law, be taken from the district court to the Supreme Court, the amount involved being less than $2,000, and that, if an appeal could have been taken by law, the affidavit of Mr. Outerbridge sufficiently excused the failure to take it.
The counsel for the claimant cited the Palmyra, 12 Wheat, 1; the Apollon, 9 id., 362; the case of the bark Jones before the commissioners under the convention of 1853, report of those commissioners, 83; the case of the schooner John before the same commissioners, report, [Page 98] 427; George Houghton’s case before the same commissioners, 161; Mailey vs. Shattuck, 3 Cranch, 458; Dana’s Wheaton, 438 n; La Amistad de Rues, 5 Wheat, 385; the Amiable Nancy, 3 id., 546; the schooner Lively, 1 Gall., 315; Benedict’s Adm. Jurisdiction and Practice, 2d eel., sec. 580, p. 345; sec. 512, p. 305; the United States vs. Haynes, 2 McLean, 155; Jenks vs. Lewis, 3 Mason, 503; Snow vs. Carruth, 1 Sprague, Mass. Adm. and Mar. Rep., 324.
In both cases the claims were disallowed, all the commissioners agreeing.
The bark Sally Magee; Charles Coleman, claimant, No. 232.
The memorial in this case was filed in the name of Charles Coleman, as surviving partner of the firm of Charles Coleman & Co., British merchants, domiciled in Rio de Janeiro from 1861 to 1865, for a quantity of coffee, part of the cargo of the bark Sally Magee, belonging to Richmond, Va., and owned by citizens of the Confederate States there resident. Coleman had in fact died about a week before the filing of the memorial, that fact being unknown to the attorneys who filed the memorial in his name, but for the benefit of the firm of Edmond, Davenport & Co., as hereinafter set forth. A question was raised as to the case being regularly before the commission on account of the death of the claimant before the filing of the memorial, but the commission, in October, 1.872, ordered that the administrator of Coleman have leave to prosecute the claim. The case was as follows:
Edmond, Davenport & Co., a firm doing business at Richmond, Va.? and composed of citizens of that city, in 1861, before the establishment of the blockade, shipped goods to the claimant’s firm at Rio de Janeiro, with written instructions as to the investment of the proceeds in coffee. These written instructions were not produced; but the claimants gave evidence that the instructions were in effect to purchase coffee if procurable, at not over 10½ cents per pound, and ship it to the Richmond firm Coleman & Co. purchased the coffee at a price not accurately shown, but said to exceed the limit given them by the Richmond firm by from one-half a cent to a cent per pound, and snipped it by the Sally Magee, consigned to Edmond, Davenport & Co., at Richmond. The vessel sailed from Rio de Janeiro for Richmond on the 12th May, 1861, and, as the claimant alleged, before intelligence of the war or the blockade had reached Rio de Janeiro. She was captured by a United States cruiser off the entrance of Chesapeake Bay on the 26th June, 1861, taken to New York, and there libelled in the United States district court, and the vessel and cargo, including the coffee in question, condemned as enemy’s property. (See report of the case in the district court, Blatchford’s Prize Cases, 382.) In the prize court Messrs. Charles M. Fry & Co. intervened on behalf of Coleman & Co., in respect of the coffee in question, claiming it as the property of [Page 99] Coleman & Co. No express repudiation of the purchase by the Richmond firm was shown; nor did it appear that the Richmond firm was advised of the terms of the purchase until after the capture of the vessel. Two members of that firm were examined as witnesses before the commission, one of whom testified that, in view of all the circumstances, he thought his firm would have ratified the purchase if the vessel had arrived safely at her point of destination, while the other testified that he thought they would not have ratified it. Coleman & Co. appealed from the decree of condemnation of the district court to the Supreme Court of the United States, where the decree of the district court was affirmed, (3 Wall., 451.) The condemnation in the district court and the affirmation of the same in the Supreme Court both proceeded upon the ground that the coffee was, by the terms of the consignment, prima facie the property of the consignees, and that no sufficient proof had been made of the terms of the instructions given by the Richmond firm to Coleman & Co. in regard to the purchase, or of the violation of those instructions by Coleman & Co. The claim was prosecuted before the commission by Messrs. Edmond, Davenport & Co., at their own cost and for their own benefit, though in the name of Charles Coleman, surviving partner, under an assignment conveying to the former firm all the right, title, and interest of Coleman & Co. in the claim.
On the part of the United States, it was contended that the condemnation by the prize court was lawful, and was sustained by the evidence before that court; that no sufficient proof was there made to rebut the presumption arising upon the face of the papers, that the coffee was the property of the Richmond consignees; that if the facts were as alleged, Coleman & Co. were bound to make lawful proof of those facts before the prize court; that for that purpose they should properly have applied for the taking of further proofs, but that they made no such application. That having failed to make such proofs before the prize court, they could not now be allowed to make them de novo before the commission thus establishing a state of facts different from that appearing before the prize courts. That even if such new proof before the commission were admissible, the claimant, by omitting to produce or account for the written instructions to Coleman & Co., had failed to establish even here any facts showing Coleman & Co. the owners of the coffee. That the parol evidence as to the terms of those instructions given on the part of the claimant was inadmissible, and that the claim being now prosecuted for the sole benefit of Messrs. Edmond, Davenport & Co., who were not British subjects, but at the time of the seizure enemies of the United States, and now citizens of the same, the court had no jurisdiction of the claim under the terms of the treaty. That the property having been captured and condemned, as the property of Edmond, Davenport & Co., enemies of the United States; having been bought with their money for their benefit; shipped to them in good faith; captured under circumstances which made the capture lawful if [Page 100] the property was theirs: they having attempted to avail themselves of a technical right to repudiate the ownership of the property, and then having taken an assignment of the claim for the purpose of reimbursing themselves for the moneys invested on their behalf in the same property, and now prosecuting the claim in the name of a British subject wholly without actual interest in the property, the case was in substance one between the United States and its own now citizens and former enemies, and not covered by the spirit or equity of the treaty, and was not such a bona-fide controversy between a subject of Great Britain and the government of the United States as the treaty contemplated.
On the part of the claimant it was contended that the production of the written instructions to Coleman & Co. was sufficiently excused, and parol evidence of their contents was therefore properly admitted. That such proof might properly be made before the commission, though not made in the prize court. That Edmond, Davenport & Co. as assignees of Coleman, though citizens of the United States, were entitled to a standing before the commission, and quoad this claim were to be deemed British subjects, and that the claim might properly be prosecuted here by Edmond, Davenport & Co. as assignees of Coleman.
The claimant’s counsel cited, under the last head, Hunter vs. The United States, 5 Peters, 173; Turner vs. The Bank of North America, 4 Dallas, 8; Montalet vs. Murray, 4 Cranch, 46; Young vs. Bryan, 6 Wheat, 146; Mallan vs. Torrance, 9 id., 537: Evans vs. Gee, 11 Peters, 80; Coffey vs. The Planters’ Bank, 13 How., 187.
The commission unanimously disallowed the claim.
The Sir William Peel; Edwin Gerard, No. 243, claimant for himself and insurers and underwriters.
This case and the three following cases, of the Dashing Wave, the Volant, and the Science, were intimately connected in character and circumstances, and were argued and submitted together. The Sir William Peel was captured by a United States war-vessel on the 11th September, 1863, while lying at anchor at the mouth of the Bio Grande, the stream dividing the territories of the United States from those of Mexico, and upon which, about forty miles from its mouth, lay on the right bank the Mexican port of Matamoras, and on the left bank the United States port of Brownsville, then in possession of the confederate forces. The place at which she lay was held by the United States prize courts to be within Mexican and neutral waters. She was taken by the captors into the port of New Orleans, there libelled in the district court of the United States, and on the 6th June, 1864, a decree of restitution was rendered in that court, certifying reasonable cause of seizure, and providing that the question as to costs and expenses be reserved for further action.” Prom this decree the United States appealed to the Supreme Court. Subsequently, on the hearing in the district court [Page 101] of the question thus reserved, the following decree was made on the 3d June 1865.
On the preliminary trial of this cause, considering that the position of the Sir William Peel, when captured, was a matter of doubt, and with a view to set this question at rest, the court allowed the captors further proof, and extended to the claimants the same privilege if they chose to accept it.
The result of the whole testimony satisfied the mind of the court that the Sir William Peel was captured when anchored south of the line dividing the waters of the Rio Grande, and when, therefore, she was in neutral waters. On that ground the court decreed her restitution; but entertaining grave doubts as to the object of her voyage, so grave, indeed, that but for this consideration, that she was captured in neutral waters, the court should have decreed her condemnation, it is now ordered and decreed that the costs and charges consequent upon the capture be paid by the claimants, and that damages be refused.
From this decree the claimants appealed to the Supreme Court of the United States. Both appeals were heard together in the Supreme Court, and that court affirmed the judgment of restitution, including its cerficate of reasonable cause of seizure, rendered June 6, 1864, and reversed the decree of 3d June, 1865, charging the claimants with costs, and remanded the case to the district court, with directions that no costs or expenses be allowed to either party as against the other. The case in the Supreme Court is reported in 5 Wallace, pages 517 to 536. The opinion of that Court delivered by Chief Justice Chase is as follows:
Regularly in cases of prize no evidence is admissible on the first hearing, except that which comes from the ship, either in the papers or the testimony of persons found on board.
If upon this evidence the case is not sufficiently clear to warrant condemnation or restitution, opportunity is given by the court, either of its own accord or upon motion and proper grounds shown, to introduce additional evidence under an order for further proof.
In the case now before us some testimony was taken, preparatory to the first hearing, of persons not found on board the ship, nor, indeed, in any way connected with her.
This evidence was properly excluded by the district judge, and the hearing took place on the proper proofs.
Upon that hearing an order for further proof was made, allowing the libellants and captors on the one side, and the claimants on the other, to put in additional evidence; and such evidence was put in accordingly on both sides.
The preparatory evidence on the first hearing consisted of the depositions of the master of the ship, the mate, and one seaman. No papers were produced, for none were found on board; a circumstance explained by the statement of the master, that all the papers belonging to the vessel, except the lighter-men’s receipts for the cargo, were with the English consul and the consignees of the ship at Matamoras.
The depositions established the neutral ownership of the ship and cargo. They proved that the Sir William Peel was a British merchantman; that she had brought a general cargo, no part of which was contraband, from Liverpool to Matamoras; that this cargo, except an inconsiderable portion, had been delivered to the consignee at the latter port; that the cotton found on board was part of her return cargo; that it was owned by neutrals, and had a neutral destination; and that the ship, when captured, was in Mexican waters, well south of the boundary between Mexico and Texas.
This proof clearly required restitution. The order for further proof was probably made upon the rejected depositions, which, though inadmissible as evidence for condemnation, may have been allowed to be used as affidavits on the motion for the order.
The further proof, when taken, was conflicting.[Page 102]
The weight of evidence, we think, put the vessel, at the time of capture, in Mexican waters; hut if the ship or cargo was enemy property, or either was otherwise liable, to condemnation, that circumstance by itself would not avail the claimts in a prize court. It might constitute a ground of claim by the neutral power, those territory had suffered trespass, for apology or indemnity. But neither an enemy, nor a neutral acting the part of an enemy, can demand restitution of captured property on the sole ground of capture in neutral waters.
We must therefore look further into the case.
There is some evidence which justifies suspicion. Several witnesses state facts which tend to prove that the Peel was in the employment of the rebel government, and that part, at least, of the cotton laden upon her as return cargo was in fact rebel property.
There are statements, on the other hand, which make it probable that the Peel was in truth what she professed to be, a merchant-steamer, belonging to neutral merchants, and nothing more; that her cargo was consigned in good faith by neutral owners for sale at Matamoras, or to be conveyed across the river and sold in Texas, as it might lawfully be, not being contraband; that the cotton was purchased by neutrals and on neutral account, with the proceeds of the cargo or other money.
In this conflict of evidence we do not think ourselves warranted in condemning, or in quite excusing, the vessel or her cargo. We shall, therefore, affirm the decree by the district court, and direct restitution, without costs or expenses to either party as against the other.
This opinion sufficiently states the facts of the case as appearing by the evidence in the prize court, and those facts were not substantially changed by any evidence taken before the commission.
The claim before the commission was prosecuted by Edwin Gerard as assignee of the owners of the vessel and cargo, and as attorney-in-fact for the insurers and underwriters, some one hundred and fifty in number. The vessel and cargo were fully insured against capture as well as other losses; and upon the capture the owners abandoned vessel and cargo to the underwriters, who accepted the abandonment and paid as for a total loss. Pending the case in the district court, forty bales of cotton, part of the cargo, were sold by order of the court, and the proceeds paid into the registry of the court. And, pending the case on appeal in the Supreme Court, the vessel, her tackle, stores, &c, and the remainder of her cargo, having been appraised at the sum of $857,642, United States currency, were, by order of the court, delivered to the claimants on their furnishing stipulations in the said appraised value with security. The claimants claimed the sum of £35,314.16.9, the sum of the amounts paid by the insurers to the assured less the net salvage obtained by the sale of the vessel and cargo, and the further sum of $369,000, demurrage from the 11th September, 1863, to the 15th September, 1864, besides interest on both said sums.
The counsel for the claimant filed, in No. 391, a general argument applicable to the cases of the Sir William Peel, the Dashing Wave, the Volant, the Science, and the Geziena Heligonda. In this argument he maintained that the Rio Grande being the common boundary between Mexico at peace and Texas at war with the United States, and the navigation of the river being, by the law of nations as well as by the treaty of Guadalupe Hidalgo, free and common to the citizens of both republics, the [Page 103] United States could not lawfully blockade that river so as to interfere with the free ingress and egress of neutral vessels engaged in trade with Matamoras, or with the right of such vessels to lie at anchor in the roadstead at the mouth of the Rio Grande, while engaged in lawfully discharging or receiving cargoes on neutral account through the custom-house at Matamoras, or so as to interfere with inland trade carried on across the Rio Grande, from Mexico to Texas or from Texas to Mexico. That the British trade with Matamoras was a legitimate trade according to established principles of public law. That these doctrines were fully recognized by the Supreme Court of the United States in the case of the Peter, hoff, (5 Wallace, p. 28;) and by the courts of the United States in other cases, notably that of the Labuan in the district court of the southern district of New York. That it had also been fully recognized by the Secretary of State of the United States, in the diplomatic correspondence with the British legation, concerning the cases of the Labuan, the Magicienne, the Peterhoff, the Sir William Peel, and other cases; and by the legislative authorities of the same in appropriations for payment of the awards in the cases of the Labuan, &c.
That, notwithstanding the recognition by the courts and executive and legislative authorities of the United States of these principles, in practice they had been disregarded, and British merchant-vessels, whether found on the high seas and destined to the mouth of the Rio Grande, with cargoes consigned to Matamoras, or anchored off the mouth of the river and engaged in good faith in the discharge of neutral cargoes for Matamoras, and in taking on board cargoes purchased at that port on neutral account, had been subjected to capture and adjudication as maritime prize.
That these captures had been the subject of earnest but temperate remonstrance on the part of Her Majesty’s government, and were regarded as violations of the just maritime rights of Great Britain, and as assumptions of belligerent power not warranted by the law of nations.
That the claims arising out of these captures were among the most important in the contemplation of Her Majesty’s government in the establishment of the Joint High Commission, and by that commission, in the provisions of articles 12 to 17 of the treaty providing for the establishment and conduct of this commission. That this commission had full jurisdiction of the claims in question, and to review and overrule the final judgments of the prize courts of last resort of the United States.
That by the terms of the treaty, and of the “solemn declaration” subscribed by the commissioners pursuant to the provisions of the treaty, they were to decide each and all of the claims “according to justice and equity.” That this provision gave to the present commission a broader and more comprehensive power than was given by the 7th article of the treaty of 1794 between the United States and Great Britain (8 Stat, at L., 121) to the commission provided for by that article, which was required to decide the claims referred to it according to “justice, equity, and the laws of nations.” That the omission of the last-named element [Page 104] of the prescribed rule of conduct from the present treaty was significant. That under the present treaty the judgments of the American prize tribunals were to be tested in each case by this commission according to the principles of “justice and equity” only. That “whether the law of nations justifies those decisions or not, unless they are also justified in the conscientious judgment of the commissioners by justice and equity, the compensation which they fail to give must be awarded to the parties.” That “the inquiry is not limited to the question whether the law of nations entitled the claimants to compensation, but extends beyond that narrow range, and its broad scope is whether the parties are equitably entitled, under all the circumstances surrounding the cases, to receive indemnification for their losses.” That it was the intention of the framers of the treaty to confer upon this commission “a more extensive jurisdiction, and greater power to do justice than was exercisable by the prize courts of the United States deciding according to the law of nations.” That the technical rule of the prize courts, that “probable cause “not merely excuses, but in some cases justifies, a capture, is a hard rule, “admitted to be opposed to the fundamental ideas of justice and equity,” and “only to be justified upon grounds which justify the extreme severity of the other operations of war.” That therefore this commission was not bound to refuse damages in cases of restitution to the claimants, even “if they should think that the appellate prize court was warranted in its decision that there existed, in the sense of the prize law, probable cause of capture.”
That if, however, it should be held that the only inquiry to be instituted by the commission in such cases is, “whether there were such reasonable-grounds of suspicion as constitute what is technically called probable cause of capture,” the commissioners should nevertheless adjudicate according to their own judgment of the facts and the law constituting the foundation of probable cause, “unembarrassed by the special and technical rules of the prize code.” That though the commission is not therefore bound by the principles held by the prize courts in their adjudications, but has a larger and more equitable jurisdiction, yet the decisions of prize courts of the highest authority have established the duty of condemning captors in costs and damages where they have unjustly interfered with the operation of lawful neutral commerce. In this connection the counsel cited the cases of the Elizabeth, 1 Acton, 10; the Ostsee, 9 Moore’s P. C. R., 150; the Gerasimo, 11 id., 88; the Newport, id, 187.
In answer to these propositions in the general argument the counsel for the United States fully admitted the propositions as held and recognized by the judicial, executive, and legislative authorities of the United States, that the bona-fide trade with Matamoras was a legitimate trade; that the United States could not lawfully blockade the mouth of the Bio Grande or the port of Matamoras, or any other Mexican port, nor interfere with the legitimate ingress or egress of neutral vessels engaged in trade with Matamoras, or with the right of such vessels to lie [Page 105] at anchor in the roadstead at the month of the Rio Grande while engaged in the bona fide discharge or receiving of neutral cargoes for or from that port.
He denied that in practice the United States had violated these principles or undertaken to assert rights inconsistent with them, but maintained that, on the contrary, the State Department of the United States, in its diplomatic correspondence, had recognized their validity; insisting only that the question of the application of these principles to the facts of each particular case was to be determined by the regular prize tribunals, which might be safely trusted to do entire justice in every case.
That the decisions of those courts in the various cases referred to by the counsel for the claimant, fully recognized those principles and applied them to the facts appearing in each case; and that in the disposition not only of those cases, but generally of all the prize cases arising during the war, those courts had carefully adhered to the principles of international law as recognized in the prize courts of all civilized countries, and had extended to neutral vessels and cargoes a degree of projection, to say the least, quite as ample and complete as that afforded by the prize courts of Great Britain, under the learned and widely known and recognized decisions of Sir William Scott and his successors in those courts.
He admitted fully the jurisdiction of the commission, and their power and duty under the treaty to review the final judgments of the prize courts of ultimate resort of the respective nations, as not conclusive upon the respective governments, which might intervene on behalf of their subjects against the judgments of those courts, such jurisdiction having been long since fully established by the direct decision of the commission upon that question, and not having since been disputed.
As to the rules and principles by which the commission were to be governed in their decisions upon these cases, he maintained that the rule prescribed by the treaty, that the commissioners should “impartially and carefully examine and decide to the best of their judgment, and according to justice and equity,” had in no respect abolished or changed those well-settled principles, in accordance with which the tribunals of the civilized world have been accustomed to decide upon the validity of captures and the respective rights of belligerents and neutrals in relation to them. That “justice and equity” were not to be attained by a disregard of judicial precedents and established principles of judicial proceeding.
That to adopt the doctrine propounded by the counsel for the claimant was to substitute the mere fancy or caprice of a tribunal acting without guidance or authority, for those sound rules established and followed by judicial tribunals, in the light of the learning and experience of ages, for the very furtherance of “justice and equity.” That true “justice and equity” are recognized by all judicial tribunals, municipal or international, as attainable only by well-defined and settled rules and principles [Page 106] of general application. That if this idea is lost sight of, substantial justice as well as substantial equity is at an end; and the rights of parties are committed to the absolute and uncontrolled will and caprice of the judicial officer, instead of the protection of the law.
That while, therefore, the right of the commission to sit in judgment upon the validity and correctness of the judgments of the prize courts of the United States upon these cases is not now questioned; such validity and correctness are to be determined only in accordance with the settled principles of prize law, as recognized by the two countries.
That in reviewing the judgments of the highest appellate courts of either of the two countries, high contracting parties to the treaty, the high reputation of those courts respectively, the weight uniformly given to the decisions of each by the other, and the rules of international comity and mutual respect, dictate that such judgments are not to be rashly or hastily overruled or reversed; but only on a clear showing of a violation of the rules of international law in re minime dubia. That the question to be decided in these cases is whether injustice has been done to the subjects of Her Britannic Majesty by the judicial tribunals of the United States; and that the commission certainly cannot find that such injustice has been done, unless they find that the well-settled principles of international law have been violated by those tribunals.
In answer to the proposition of the claimant’s counsel, that the rule of the prize courts disallowing damages to the claimant where “probable cause” appears for the capture, is one of extreme severity as against the neutral trader, “opposed to the fundamental ideas of justice and equity,” and “a hard rule, admitted to be such by all writers on the law of nations,” the counsel for the United States cited the language of Dr. Lushington, in the case of the Leucade, (2 Spinks, 236,) as follows:
Lord Stowell administered the prize law on great and comprehensive principles. His object was that, on the whole, equal justice should be done to the rights of the belligerent and the just claims of neutral nations; but he did not seek in each particular case to do the most perfect justice. Many passages in his judgments might be cited to show this; whereby he declared that, though there might be hardships in particular cases, both to captors and especially neutrals, yet, on the whole, the balance was in favor of the neutral rather than against him. Lord Stowell used so say, though blockade was a hardship on a neutral, and the right of search was a hardship on a neutral, yet it was to be recollected the whole trade was always open to them—the carrying trade in time of war. He used always to say, and rely greatly on that rule of law, that, in the first instance, the case should be heard on the evidence of the claimants themselves, namely, the ship’s papers and depositions.
In the case of the Diligentia, (1 Dods., 404,) where the captors complained of what Lord Stowell was about to do, Lord Stowell made the same answer; he told them, though they might complain in particular instances, yet he must adhere to the general principle, though the consequences might press hard upon them. Now, no person more readily acknowledged the truth of the principle, that a claimant should be indemnified for a capture made without probable cause, than Lord Stowell; no one more powerfully manifested it; but that will necessarily presuppose that the court is in possession of the truth.[Page 107]
It is equally contrary to common justice that a captor should be mulcted in costs and damages where he has faithfully performed his duty, and had, in truth, adequate cause for the seizure. Yet this cause of seizure might not appear on the face of the depositions and ship’s papers. So it might be in blockade cases, and in numerous others which might be stated.
In the case of the Sir William Peel the following additional points were made on behalf of the United States:
- That the vessel and cargo not having been charged with costs under the final decree of the Supreme Court, the only question before the commission was as to the right of the owners to damages; that the claimants were in no position to make such claim before the commission; that any right to damages in the prize courts was barred by the first decree of the district court of 6th June, 1864, which adjudged reasonable cause of seizure, and that from this decree or from any part of it the claimants had never appealed; that the question as to costs and expenses” reserved by that decree was plainly the question only whether costs and expenses should be allowed against the claimants, their right to claim costs and expenses against the captors being barred by the certificate of “reasonable cause of seizure” contained in the same decree; that the claimants, having failed to appeal from so much of this decree as certified reasonable cause of seizure, must be considered, in the language of the letter of Sir William Scott and Dr. Nicholl to Mr Jay, (3 Phillimore, 554,) to have “acknowledged the justice of the sentence in that respect,” and that within the rule of practice already settled by the commission the claimants, having neither appealed nor rendered any reason for not having appealed, their claim must be disallowed; that the only effect of the second decree of the district court of 3d June, 1865, from which the claimants did appeal, was to charge the claimants with the costs and charges of the captors, and that on their appeal from this decree they had had full relief by the judgment of the Supreme Court; that it had never been possible for the Supreme Court to award damages in favor of the claimant had they been so disposed, such damages being barred by the certificate of probable cause in the first decree of 6th June, 1864, from which the claimants had not appealed; that the claimants had therefore no standing before the commission to claim damages.
- That the proofs before the prize court fully sustained the finding of that court of probable cause; and that the depositions of Clark and Haggard, taken in the district court, but rejected by that court on the purely artificial and technical rule that such evidence must come in the first instance from the vessel herself and those on board of her, were here competent evidence under the terms of the treaty, and entitled to be weighed by the commission without regard to such artificial rule of exclusion; and that those depositions not only greatly strengthened the case made before the prize court as one of probable cause, but in connection with the other proofs would have amply warranted a decree of condemnation.
- That the fact that the vessel was taken in neutral waters, in no respect changed the case as to the respective rights of captors and claimants. That in such case it was only the neutral power whose waters had been violated that had cause of complaint; and such power only could be hard to raise the question of violation of her waters. That if the United States by this capture had violated any rights of Mexico, that was a question to be settled between the United States and Mexico. That so far as the questions between these claimants and the United States were concerned, the case stood in all respects the same as if the vessel had been captured upon the high seas.
- In support of this point the counsel of the United States cited the Purissima Concepcion, 6 Rob., 45; the Etrusco, 3 id., 31; the Twee Gebroeders, id., 162; the Eliza Anne, 1 Dodson, 244; the Diligentia, id., 412; the Anne, 3 Wheat., 447; 2 Twiss, 448; the Anna, 5 Rob., 373; the Vrow Anna Catherina, id., 15.
- That by abandonment, acceptance of the same, and payment as for a total loss, the entire right to any and all reclamation for damages or for the proceeds of the vessel passed from the owners of the ship and cargo to the insurers, and this irrespective of the question of the illegality of the contract of insurance, the contract being an executed one by the voluntary act of the parties. That these insurers were not to be taken as parties to the memorial, which was that of Mr. Gerard. That Gerard himself had derived by his assignment from the owners no title, their claims having vested in the insurers. And that if the assignment to him would otherwise have conveyed any interest, it was void as a champertous contract by which Gerard, an attorney, without any previous interest in the transaction, had purchased the claim as a matter of speculation and for the purpose of its prosecution against the United States. That by the law of England, the purchase of a chose in action by an attorney for the purpose of prosecution was illegal; that the same rule prevailed in most, if not all, of the United States; and that in practice it ought to prevail in international law. That such champertous purchases of claims, void by the common law of both countries, should not be recognized as lawful transactions, or be permitted as the basis of claims to be prosecuted by one of those governments against the other.
- That the contracts of insurance by these insurers with the assured were deliberate contracts to indemnify British subjects for the consequences of attempted violation of the belligerent rights of the United States; that such contracts, when sought to be enforced in the courts of the United States, would be held void by those courts; that like contracts, in relation to attempted violation of the belligerent rights of Great Britain, if prosecuted in the courts of that kingdom, would be held void by her courts; that, therefore, in an international tribunal constituted by solemn treaty between the two governments, the comity of nations and a proper regard by one friendly government of the rights of another should preclude the admissibility of such claims. That [Page 109] these contracts of insurance were distinguishable from “war risks” recognized by all nations as legitimate subjects of insurance, and such as were discussed among the American claims before the tribunal at Geneva; those were assurances of the merchant-vessels of a belligerent against capture by their enemy, and such as are recognized in all wars of maritime nations as a permissible and necessary means to the preservation of any commerce whatever to a belligerent; but these are del itinerate contracts to indemnify a neutral who, by carefully excluding the “free from capture” clause, admits that he is engaged in an attempt to violate the belligerent rights of a friendly nation. That though the violation of blockade by a neutral is not held by international law to be strictly a crime, it is an unfriendly act, prejudicial to the character and interests of the neutral government of which the violator is a citizen, and to her honest and legitimate traders, and calculated to promote discord and hostility between friendly nations. That a contract to indemnify the citizen of a neutral government against the lawful consequences of his own wrongful act against a friendly government, should never be made a ground of reclamation by the government of the wrong-doer against the injured government, nor be countenanced by an international tribunal organized as a means of amicable settlement between two such governments.
On the part of the claimants it was contended in answer that the Supreme Court of the United States had in effect passed upon all the questions involved in the prize court, and had finally adjudged that the claimants should not have damages against the captors; and had determined that the fact of the capture having taken place in the waters of Mexico, a neutral and friendly nation, did not make the capture a wrongful one as between the captors and the claimants, Mexico not having intervened. That on the proofs in the case there were no such circumstances of suspicion as to afford probable cause of capture within the doctrines of the prize courts. That if such probable cause within the rules of those courts existed, it was plain, from the proofs before the commission, that actual injustice had been done to the owners of the vessel and cargo; that the vessel was engaged in a legitimate commerce; and that, according to justice and equity, the claimants should be reimbursed for the losses in consequence of the capture ultimately adjudged a wrongful one, even though the capture were held excused by the doctrine of probable cause under prize law. That the capture of the vessel within the neutral waters of Mexico was in violation of international law, and absolutely illegal and void. That the doctrines of the prize courts that such a capture could only be questioned by the government whose territory had been violated, applied only to the case of an enemy ship captured in neutral waters and not to the case of a neutral vessel so captured. That, even if that doctrine applied in the last-named case, it was only as a technical rule of the prize courts requiring an intervention there by the government whose territory had been violated, and [Page 110] was not applicable in the case of an international tribunal, which should be controlled by the consideration that the capture was an illegal one under international law.
The counsel for the claimant cited Dana’s Wheaton, §§ 171, 426, 428, 429, 430; the Vrow Anna Catherina, 5 Rob., 18; Lawrence’s Wheaton, 215n., 715; Wheaton on Captures, (appendix,) 341; the Anne, 3 Wheat. Rep., 435; the Richmond, 9 Cranch, 102; the Peterhoff, 5 Wall., 28; the Bermuda, 3 Wall., 557.
The counsel for the claimant also maintained that the insurers and underwriters were to be deemed parties to the memorial by Mr. Gerard, as their attorney in fact; that the assignment to Gerard was a valid one; and that the contracts of insurance were also valid and entitled to recognition and protection under international law.
The commission (Mr. Commissioner Frazer dissenting) gave the claimants an award for $272,920. I am advised that the award was placed by the majority of the commission on the ground that the capture within the neutral waters of Mexico was absolutely illegal and void; and that the claimants were entitled to make reclamation on that ground, irrespective of any question of complaint or intervention on the part of Mexico.
In this case, in connection with the cases of the Science, the Volant, and the Dashing Wave, Mr. Commissioner Frazer read a written opinioo, which will be found in the appendix, M.
The brig Dashing Wave; Charles Le Quesne et al., No. 395, claimants for vessel; Edwin Gerard, No. 244; Simpson & Pitman, No. 396; McDowell & Halliday, No. 397; the Thames & Mersey Insurance Company, (limited,) No. 427; and the British and Foreign Marine Insurance Company (limited) et al., No. 428, claimants for cargo.
This vessel was captured while at anchor off the mouth of the Rio Grande, on the 5th November, 1863; was taken into the port of New Orleans and there libelled in the United States district court. A decree was made in that court, 16th June, 1864, adjudging restitution of the vessel to the claimants; from which decree the United States appealed to the Supreme Court. Further proceedings were had in the district court on the question of costs and damages; and, on the 3d June, 1865, a decree was made adjudging that the costs and charges consequent upon the capture be paid by the claimants, and that damages be refused to them.
From this decree the claimants appealed to the Supreme Court. The Supreme Court affirmed the decree of the district court restoring the vessel and cargo; but directed that the costs and expenses consequent upon the capture be rateably apportioned between the vessel and the shipment of coin hereinafter named; and that the residue of the cargo be exempted from contribution. The district court determined, upon the [Page 111] proofs, that the vessel when captured was anchored south of the line dividing the waters of the Rio Grande, and was therefore in neutral waters.
The Supreme Court held, on the contrary, that the proofs clearly showed her to have been anchored north of the division line above named and within the waters of Texas, then in possession of the enemies of the United States. The case in the Supreme Court is reported in 5th Wallace, pages 170 to 178; to which report reference is made for the statement of the peculiar facts of the case. No proofs were made before the commission substantially changing the facts as there stated.
Many of the questions involved in this case were identical with those involved in the case of the Sir William Peel above reported, and therefore need not be again stated.
Edwin Gerard, No. 244, claimed as assignee of the insurers of Messrs. F. DeLizardi & Co., the alleged owners of 12,000 British sovereigns, a portion of the cargo upon which, together with the vessel, the costs and expenses consequent upon the capture were apportioned by the decree of the Supreme Court.
Simpson & Pitman, No. 398, and McDowell & Halliday, No. 397, claimants as owners respectively of parts of the cargo exempted from contribution by the final decree, claimed damages by the depreciation of the cargo during its detention, and for costs and expenses to which they had been subjected.
The insurance companies, Nos. 427 and 428, claimed respectively as insurers of portions of the cargo in like manner exempted from contribution and which had been duly abandoned to them as insurers, and payments made by them respectively as upon a total loss.
Upon the two last-named claims of the insurance companies, questions were raised on the part of the United States, as to the validity of the contract of insurance in the same regard reported above in the case of the Sir William Peel, and also as to the right of the insurance companies to recover in respect of portions of the cargo owned by persons not appearing to have been British subjects. This last-named question was subsequently more distinctly raised and passed upon in the case of the Circassian, and will be hereafter reported under that case.
The commission unanimously disallowed all the claims.
The Brig Volant, John Amy et al., No. 388, claimants for vessel; Edwin Gerard, No. 245, claimant for cargo.
This vessel was captured on the 5th November, 1863, at the mouth of the Rio Grande, taken into the port of New Orleans, and there libelled. By a decree rendered on the 11th June, 1864, the district court condemned the vessel and cargo as lawful prize. From this decree the claimants appealed to the Supreme Court, which court reversed the decree of condemnation, but held that the capture was justified by “probable cause,” and adjudged restitution of the vessel on payment of costs and charges. The case is reported in the Supreme Court in 5th Wallace, [Page 112] pp. 179, 180. It appeared that the vessel, when captured, was anchored within Texan waters.
The claimants in No. 388 claimed as owners of the vessel for reimbursement of the costs and charges paid by them, and for damages by the detention of the vessel.
Mr. Gerard, in No. 245, claimed, as assignee of the insurers of the cargo to whom the same had been abandoned, and who had paid as for a total loss, about 140,000, besides interest, for depreciation of cargo after the seizure, including the value of ninety-three cases of brandy, alleged to have been abstracted from the vessel while in custody of the officers of the district court.
The questions involved in respect to this vessel are substantially covered by the report of the foregoing case of the Sir William Peel, and by the report of the case in 5th Wallace.
The claim of Amy and others, No. 388, in respect of the vessel, was unanimously disallowed by the commission.
In the case of Mr. Gerard, No. 245, the commission made an award in favor of the claimant for $1,785, Mr. Commissioner Gurney dissenting. I am advised that this award was made in respect of the brandy abstracted while in charge of the officers of the district court; and that the other claims for damages in the case were disallowed.
The bark Science; Thomas E. Angell and others, claimants, No. 391.
This vessel was captured at the same time and place with the Dashing Wave and the Volant, libelled in the same court, and the same decrees entered respectively as in the case of the Dashing Wave, and the same appeals taken by the respective parties to the Supreme Court. That court affirmed both judgments of the district court restoring the vessel, and charging her with the costs and expenses of capture, finding upon the proofs that she was, when captured, anchored within Texan waters, and that no excuse appeared for her being there. The case in the Supreme Court is reported in 5th Wallace, pp. 178, 179.
The counsel for the claimants, in addition to the points above cited in the case of the Sir William Peel applicable to this case, contended that the capture was one made in bad faith; that the Science had arrived off the mouth of the Rio Grande on the 11th August; that, immediately on her arrival, she was boarded by an officer of a United States blockading vessel, who examined her papers and inspected her cargo, and permitted her to anchor and discharge her outward cargo, and take on board a large portion of her return cargo; that the only allegation made by the capturing officer was that her outward cargo had included cloth of the character and description used for confederate uniforms; that this allegation constituted no ground of capture, and even if originally it might have afforded probable cause of capture, it certainly could not, after the vessel had been allowed to lie three months in the offing, and take on board a valuable cargo of over [Page 113] 300 bales of cot ion. That the fact of her being at anchor within Texan waters, if it existed, did not of itself constitute probable cause, there being no evidence in the case to indicate an intention of violation of the blockade; that, by international law and under the treaty of Guadalupe Hidalgo, the roadstead at the mouth of the Rio Grande was an open roadstead, where neutral vessels trading with Matamoras had a right to lie at anchor, whether north or south of the conventional line between the United States and Mexico established by that treaty; and that the United States could no more lawfully interfere with the enjoyment of that right than they could with the right of vessels in course of the same trade to navigate the mouth and current of the river; that the right to the navigation of the Rio Grande included the right to the means without which such navigation could not be reasonably enjoyed— among others, the right to moor in the roadstead at its mouth. That, even if the United States could claim an exclusive right to occupy the waters north of this line for the purpose of blockade, that a vessel honestly engaged in trade with Matamoras, and anchoring for that purpose on the Texan side of the line, was entitled to notice or warning before it could be treated as intruding on forbidden ground, and that a seizure without such notice was unjustifiable; that, in fact, the proofs failed to establish that the vessel was lying north of the dividing line, and that the blockading vessels, by omitting to apprize her that she was anchored in a place which they deemed an improper one, and by permitting her to be there and take on board her return cargo, were estopped to allege that her position was an unlawful one.
The claimant’s counsel cited the Terecita, 5 Wall., 180; Madeiros vs. Hill, 8 Bing., 231; Nailor vs. Taylor, 9 Barn. & Cres., 718; Carrington vs. Merchants’ Insurance Company, 8 Peters, 517; Mr. Jefferson’s paper on the navigation of the Mississippi, I Am, State Papers, 254.
On the part of the United States it was contended that the Science, and the other vessels of her class, could not enter by reason of their draught of water and never attempted to enter, the mouth of the Rio Grande, or to reach the port of Matamoras. That, conceding her full right to navigate that river and the waters through which its mouth was to be approached, and even for that purpose to pass over the blockaded waters of the Confederate States, it did not follow that she had the right, for her own convenience and for the delivery of her cargo into lighters, to cast anchor within those blockaded waters, and there lie for weeks in a position from which access, by means of lighters to the blockaded coast, was easier, by night or by day, than that to the neutral port for which her cargo professed to be destined. That the United States were lawfully entitled to blockade, and did blockade the sea-coast of Texas, and that such blockade would be wholly nugatory if a vessel in the condition of the Science could claim and exercise the right to cast anchor within the blockaded waters, and within three miles of the enemy’s [Page 114] coast, from which it was evident that she could, with great facility, hold communication with that coast.
The commission awarded to the claimant the sum of $45,684, Mr. Commissioner Frazer dissenting.
The schooner Matamoras; Oliver K. King, administrator, claimant, No. 288.
This vessel was captured at the mouth of the Rio Grande at the same time with the Dashing Wave, the Volant, and the Science, and libelled in the United States district court at New Orleans. The district court, on the proofs, decided that, at the time of the capture, she was in Mexican waters, and gave judgment of restitution, certifying reasonable cause of capture, and refusing allowance of costs or expenses to the claimant. No appeal was taken from the judgment of the district court.
Under the order of the commission the claimant assigned as the reason of his omission to appeal, that, “in consequence of the short space of time in which to appeal, only thirty days being allowed for that purpose, and the detention of the mails, and the counsel in New Orleans not having taken the appeal, the time to appeal expired.”
On the part of the United States it was claimed that the proofs showed probable cause of capture in the conduct and position of the Matamoras; but this was denied on the part of the claimants. The counsel for the United States insisted that no sufficient excuse was assigned for the failure to appeal.
The commission disallowed the claim, (Mr. Commissioner Gurney dissenting,) on the ground of the insufficiency of the reasons for failure to appeal.
The Isabel; George Wigg, claimant, No. 269.
This vessel was captured on the 23d September, 1852, on a voyage from Bayport, in Florida, to Havana; was taken into the port of Key West, there libelled in the United States district court before Judge Marvin, and condemned as lawful prize. An appeal was taken, under the then existing law, to the circuit court of the United States for the same district; and this appeal was subsequently, under the United States statutes of 3d March, 1863, (12 Stats, at L., 730, § 7,) and of 30th June, 1861, (13 id., 311, § 13,) transferred by stipulation to the Supreme Court, in which court the claimant having failed to file the transcript from the court below, pursuant to the rules of that court, the case was dismissed, on motion of the United States, without appearance on the part of the claimant. The claimant alleged himself the sole owner of both vessel and cargo; and alleged that the port of Bayport, from which the vessel sailed, was not blockaded at the time of the capture or of the entrance or departure of the Isabel into and from that port. The fact of no blockade was sought to be established by the testimony of the master and [Page 115] crew of the vessel, who testified that they saw no blockading vessels on entering or departing. The time of day or night of their entrance or departure was not shown.
The counsel of the United States relied on the official reports of the Secretary of the Navy and accompanying documents for the years 1862 and 1883, and upon the decision of the district court having judicial knowledge of the current historical facts of the day, as sufficiently establishing the fact of blockade. Documentary proofs were filed on the part of the United States going to show the claimant, Wigg, at the time of the capture of the vessel actually engaged in shipping munitions of war to the confederate government; and that both before and after the capture, he and the vessels which he owned or controlled were for a long time largely engaged in the like employment.
On the part of the United States it was maintained: 1, that the Isabel was lawfully captured in the actual course of a voyage in violation of the blockade; 2, that, by the failure of the claimant to prosecute his appeal to the Supreme Court, and procure an adjudication of that court upon the merits of his case, he was debarred from a standing before the commission; 3, that, by his personal acts in aid of the enemies of the United States in carrying on their war against those States, the claimant was debarred of any standing as a British subject before the commission; 4, that, by those acts, he had constituted himself an enemy of the United States, so that his property upon the high seas was liable to capture as enemy’s property, irrespective of any question of blockade.
All these propositions were controverted on the part of the claimant.
The commission unanimously disallowed the claim.
The steamship Pearl; Shand, Higson & Co., claimants, No. 270.
The Pearl was captured in January, 1863, by a United States cruiser, in the Atlantic Ocean, between the Bahama Banks and Nassau, on a voyage purporting to be from Queenstown to Nassau. She was taken into the port of Key West, and there libelled as prize on the alleged ground that her actual destination was for one of the blockaded ports. Mr. Geo. Wigg intervened as claimant in the district court, alleging himself the sole and absolute owner of the vessel. The district court adjudged restitution of the vessel and cargo. An appeal was taken by the United States to the Supreme Court, and that court reversed the decree of the district court, and adjudged condemnation of the vessel and cargo. (See report of the case of the Pearl, 5th Wallace, 574.)
The claimants here alleged that the vessel, though purchased by Wigg in his own name, was actually purchased by him as agent for Messrs. J. & T. Johnson, merchants of Liverpool, to whom she actually belonged, though registered in the name of Wigg. That J. & T. Johnson had, since the condemnation, assigned to the claimants, by way of mortgage, their claim upon the United States for the alleged wrongful capture and condemnation. No proofs were made by the claimants of the [Page 116] title of the Messrs. Johnson, nor of the assignment of the claim by them to the claimants.
The claim was unanimously disallowed.
The schooner D. F. Keeling: Mary Hutchinson, claimant, No. 277.
This vessel was seized in the port of New York, on the 6th October, 1861, and libelled in the United States district court for confiscation under the statute of 13th July, 1861, (12 Stat, at L.,) as the property of an inhabitant of the State of Louisiana, then in rebellion against the United States. The claimant, Mary Hutchinson, interposed a claim to the vessel, denying that she was an inhabitant of New Orleans, alleging herself a native-born subject of Great Britain, and only transiently present in New Orleans upon a visit to relatives there residing. The district court found this allegation sustained by the proofs, and adjudged restitution of the vessel, certifying probable cause of seizure, and refusing costs or damages to the claimant. No appeal was taken from the decree of the district court. On the part of the claimant an affidavit of one Leetch was filed, excusing the omission to appeal on the ground that his own business required him to return home immediately to Mexico, (he having been at the time the agent of Mrs. Hutchinson,) and that Mrs. Hutchinson was not able to attend to the appeal in person, “by reason of age and infirmity.” The claimant’s memorial, verified by her own oath, alleged that she was born in 1813, making her forty-eight years old at the date of the decree of restitution. She claimed here damages by the detention of the vessel, and costs incurred in defense of the suit, $18,063, besides interest.
The proofs before the commission showed that the claimant emigrated with her husband to New Orleans about 1850; that her husband died there in 1852, and that the claimant had ever since, up to the date of the deposition, (February, 1873,) been permanently domiciled in New Orleans.
On the part of the United States it was contended that the proof here fully showed the liability of the vessel to condemnation before the district court; that such condemnation was there defeated by false allegations and proofs; that, on the merits, the claimant was not entitled to damages; and that no sufficient reason was shown for her failure to appeal from the decree of the district court.
The commission unanimously disallowed the claim.
The schooners Albion, Alert, La Criolla, Mary Stewart, Agnes, Fanny, Anne Sophia, Defiance, Nelly, Agnes, J. C. Roker, Florida, Anna, Wanderer, Mabel, Julia, Swift, Pride, Chance, Arctic, Brilliant, John W., Industry, Time; the sloops Lida and Julia, and the steamer Lizzie; Sanders & Sons, claimants, No. 281.
Messrs. Sanders & Sons, merchants of Nassau, filed their memorial claiming damages, in all $142,643, besides interest, for the alleged wrongful capture and condemnation of the twenty-seven vessels above-named. [Page 117] Their memorial contained simply a general averment that their vessels were lawfully engaged in trade “with certain ports of the United States which were held open by the Government of the United States to foreign commerce, and also with certain ports of Great Britain and other nations.” That they were with their cargoes “unlawfully and wrongfully captured, in violation of the law of nations,” by cruisers of the United States, and condemned and sold. A schedule of the different vessels, with copies of the respective registers, was filed with the memorial. No other proofs were filed for the claimants, and the claim was unanimously disallowed.
The schooner Echo; Peter A. Spear water, claimant, No. 284.
The Echo was captured by a United States vessel of war on the 31st of May, 1863, on a voyage from Matamoras to New York; was taken into the port of Key West; there libelled in the district court; by which court judgment of restitution was awarded, certifying probable cause of capture, and refusing costs or damages to the claimants. No appeal was taken and no reason was assigned for the failure to appeal. In the testimony before the prize court the mate of the vessel testified that the cargo was taken on board at the mouth of the Rio Grande, and was purchased by the claimant himself in Brownsville, Texas, a town of the Confederate States; that the Echo lay off the mouth of the Rio Grande for about four months, from January till May, 1863; that, during most of that time, the claimant, the owner and master of the vessel, was in Brownsville and there purchased the cotton in question. The claimant himself, in his deposition denied these statements of his mate; and the district judge deemed the evidence insufficient to justify condemnation, but sufficient to establish probable cause.
The commission unanimously disallowed the claim.
The bark Springbok; John Riley, manager, &c, No. 442, claimant for vessel; S. Isaac Campbell & Co. and Thomas Stirling Begbie, No. 316, claimants for cargo.
This vessel was captured by a United States cruiser, on the 3d February, 1863, on the Atlantic Ocean, about one hundred and fifty miles east of Nassau, New Providence; was taken into the port of New York, and there libelled in the district court. That court rendered a decree of condemnation of both vessel and cargo. (See the report of the case, B latch ford’s Prize Cases, pp. 434 to 463.) The claimants appealed to the Supreme Court, which affirmed the judgment of condemnation of the district court as to the cargo, but reversed it as to the vessel, adjudging restitution of the vessel, but without costs or damages to the claimants. (5 Wall, 1.)
The claimant John Riley, No. 442, claimed as manager of the London A 1 Insurance Association, the A 1 Guarantee Insurance Association, [Page 118] and the Colonial A 1 Insurance Association, insurers of the vessel, and who had, on abandonment by the owners, paid as for a total loss. He claimed an award for £4,615, besides interest, damages for the detention of the vessel, loss of profits, and costs and expenses in the prize-courts.
The claimants S. Isaac Campbell & Co., and Begbie, claimed £68,378, the alleged value of the condemned cargo, and costs and expenses in the prize courts. The facts of the case as appearing before the prize courts are sufficiently set forth in the reports of the respective courts above cited.
In addition to the proofs before the prize courts the claimants gave evidence before the commission tending to show that the actual and ultimate destination of the cargo was Nassau, and that it was intended to be there sold in open market by the agent of the owners.
This evidence consisted of the testimony of the agent of the claimants at Nassau to that effect, certain letters from the claimants to said agent proved by him, and general proofs showing that there was at Nassau a market for the various kinds of merchandise constituting the cargo of the vessel.
Neither of the claimants for the cargo placed himself upon the stand to testify as to the actual destination or the intent of the owners in relation to it. The claimant Begbie was examined as a witness in behalf of Mr. Riley, the claimant in No. 442; and, on his examination-in-chief, testified merely that the cargo of the Springbok was to be discharged at Nassau; that there was no agreement for the continuance of the voyage, or for the employment or engagement of the vessel after her arrival at Nassau; and that the captain of the vessel knew nothing of the ownership of the cargo. On cross-examination he declined to answer as to whether he was, in the years 1862 or 1863, engaged in blockade-running speculations, and whether he was, at the time of her capture, the owner of the Gertrude or her cargo, (this being the vessel referred to in the report of the case in the Supreme Court, and the proofs upon the condemnation of which were invoked in the case of the Springbok.)
On the part of the United States evidence was given showing both the firm of S. Isaac Campbell & Co. and Begbie actively and largely engaged in blockade-running ventures, and in supplying by contract the confederate government with military supples. These proofs included original contracts and letters between the claimants S. Isaac Campbell & Co. and the confederate secretary of war, and other officials, showing contracts by that firm, running through the years 1882 and 1863, for cannon, rifles, swords, accoutrements, gunpowder, shells, clothing, &c., in large quantities, and delivery of the same to the confederate government under such contracts to the amount of several hundred thousand pounds. Also evidence showing the claimant Begbie a contractor with the confederate government for the establishment of lines of fast steamers, to run in the service of that government between the blockaded ports of the Confederate States and ports in the West indies.[Page 119]
On the part of the claimants it was contended that the proofs in the prize court tailed to sustain the conclusions of the district court, that the vessel “was knowingly laden in whole or in part with articles contraband of war, with intent to deliver such articles to the aid and use of the enemy;” that the true destination of the ship and cargo was not Nassau, a neutral port, and for trade and commerce, but some port lawfully blockaded by the forces of the United States, and with intent to violate such blockade; and, further, that the papers of the vessel were simulated and false. That they also failed to sustain the conclusions of the Supreme Court, “that the cargo was originally shipped with an intent to violate the blockade; that the owners of the cargo intended that it should be trans-shipped at Nassau into some vessel more likely to succeed in reaching safely a blockaded port than the Springbok; that the voyage from London to the blockaded port was, as to cargo, both in law and in the intent of the parties, one voyage, and that the liability to condemnation, if captured during any part of that voyage, attached to the cargo from the time of sailing.”
The counsel for the claimants further contended that the proofs filed for the first time before this commission conclusively rebutted these conclusions of each of the prize courts, and established the ultimate destination of both ship and cargo to be Nassau, the cargo to be there sold in open market.
The counsel called attention to an error in the opinion of the Supreme Court in stating sixteen dozen swords and ten dozen rifle-bayonets as forming part of the cargo of the Springbok, when in fact the proofs showed the vessel to have carried only one sample-case containing one dozen cavalry-swords and one dozen rifle-bayonets; and to the fact that, on the sale of the cargo, the entire proceeds of the swords and bayonets, and of the army and navy buttons, were only $270 out of the gross proceeds of the entire cargo of nearly $250,000; and that, including the army blankets, saltpetre, and all that portion of the cargo which could be regarded for any purpose as quasi contraband, the proceeds of such alleged contraband goods were less than one per cent, of the proceeds of the entire cargo. He urged that the judgment of the Supreme Court sustained “extreme pretensions of belligerent right to subjugate neutral commerce to its necessities,” which ought not to be sustained by this international tribunal; that, to sustain the doctrine of liability to capture on the theory of “continuous voyage,” it must appear that the cargo was intended as a part of the original and planned adventure to be carried from the neutral port to the enemy’s port; that the extreme doctrine in this regard had been stated by the Supreme Court in the case of the Bermuda, (3 Wallace, 515,) as follows:
A voyage from a neutral to a belligerent port is one and the same voyage, whether the destination be ulterior or direct, and whether with or without the interposition of one or more intermediate ports, and whether to be performed by one vessel or several employed in the same transaction and in the accomplishment of the same purpose.
That the measure of this doctrine, as applied by the Supreme Court to the case of the Bermuda, was as follows:
What has already been adduced of the evidence satisfies us completely that the original destination of the Bermuda was to a blockaded port; or, if otherwise, to an intermediate port, with intent to send forward the cargo by trans-shipment into a vessel provided for the completion of the voyage.
That, with the doctrine of continuous voyage as thus limited and defined, nothing in the case of the Springbok involves any necessary controversy; but that this doctrine ought not to be extended so as to make guilty a trade between neutral ports to which the intercepted voyage was actually and really confined, by surmise, conjecture, or moral evidence not of a further carriage and further carrier, but only of a probability that such supplementary further carriage and some supplementary further carrier may or must have been included in the original scheme of the commercial adventure. That such a fiction of continuous voyage for the case of all trade between neutral ports, which has its stimulus from the state of war, made the belligerent prize court master of neutral commerce, and in fact established a paper blockade of the neutral ports in question, and left their commerce at the mercy of the belligerent. That the whole history of prize jurisdiction on the doctrine of continuous voyage shows that the province of probable reasoning has been confined to the question of intent, while the corpus delicti—the voyage to the enemy port—must be proved with the same definiteness of vehicle, port, and process of execution as is confessedly essential when the voyage is direct and simple.
That the original capture of the Springbok was wholly unjustifiable; that the visitation and search disclosed nothing which rendered her voyage amenable to further molestation; that there was nothing in the vessel, her cargo, or her papers, her position, or the circumstances of her capture, justifying the cruiser in sending the vessel into port for libel, on the speculation that it might be that the cargo was to go forward, and, if so, that fact perhaps might be provable; that it was a marked case of speculative seizure and detention, not upon indications which the visit and search at sea disclosed, but for the purpose of a visitation and search in the prize courts for independent, extraneous, and argumentative grounds of suspicion.
That the trial in the prize court violated the essential principles of the prize jurisdiction as established between belligerents and neutrals, and in which the latter find the limits of their exposure and submission. That the rule of the prize courts that condemnation could only be justified upon the proof furnished by the vessel itself, her papers, and cargo, and the depositions of those on board, is not a mere matter of practice or form, but is of the very essence of the administration of prize law. That, accordingly, the invocation by the captors of the papers from the cases of the Gertrude and Stephen Hart as part of the primary proofs on which to condemn the Springbok and her cargo, was unprecedented, acknowledged [Page 121] by the Supreme Court to be irregular and not in accordance with the rules of proceeding in prize, and was not a mere irregularity in form but was subversive of the principles of prize jurisdiction.
That the passing of condemnation without giving the claimants an opportunity for further proof, was a manifest injustice; and that the absolute condemnation without such opportunity for further proofs was contrary to the rightful system of prize jurisdiction.
That the presence of the trivial amount of contraband (as held by the prize court) could not be regarded either as evidence of its own destination or of that of its accompanying innocent cargo to an ulterior market, nor as ground for condemnation independent of the question of intended breach of blockade; citing on this point Dr. Gessner’s Droit des Neutres sur Mer, p. 122, as follows:
It is wrong to seize contraband goods in a neutral vessel when they are in such small quantities that their inoffensive character is thereby established. The bona fides is a question to be determined by all the circumstances of the case, among which the quantity is a very material ingredient.
In addition to the above, the counsel for the claimant cited the following:
The letter of Sir Wm. Scott and Sir John Nicholl to Mr. Jay, 3 Phillimore, 551; Story on Prize Courts, (by Pratt,) pp. 3 to 10, 17, 18, 24 to 26; Wheaton’s Elements, part 4, c. 2. § 15; Trumbull’s Reminiscences of his own Times, 193; the decision of the Geneva Tribunal upon the case of the Florida, acquitted in the vice-admiralty court at Nassau on the charge of violation of the neutrality act of Great Britain; The Polly, 2 Rob., 361; The Maria, 5 id., 635; The William, id., 385; The Thomyris, Edwards’s Reps., 17; 3 Phillimore, 358; 5 Rob., 334.
On the part of the claimants of the vessel it was contended, in addition to the positions above stated, that it was found by the Supreme Court that her papers were regular and her voyage a bona fide one between London and Nassau; that the papers were all genuine, and there was no concealment of any of them, and no spoliation; that the owners were neutrals, appeared to have no interest in the cargo, and could have had no knowledge of its alleged unlawful destination; that these conclusions of the Supreme Court upon the evidence before it were strengthened and completely sustained by the additional testimony taken before the commission; that the grounds on which the Supreme Court denied costs and damages to the claimants of the vessel, to wit? misrepresentation by the master on his examination as to his lack of knowledge of the grounds on which the capture was made, and the fact that he had signed bills of lading which did not state truly and fully the nature of the goods contained in the bales and cases mentioned in them, were unsustained as matters of fact by the evidence, and, even if sustained, were in themselves not of the least significance, and did not and could not affect the interests or issues involved in the capture? that, so far as the vessel and her owners were concerned, her voyage was [Page 122] honest, her papers fair, and the good faith of the charter-party absolute and unimpeachable, and the declarations and conduct of her captain not so obnoxious to just criticism as to justify the infliction of punishment upon the innocent owners.
On the part of the United States it was maintained that the conclusions arrived at by the Supreme Court as above stated, and upon which the decree of that court condemning the cargo was based, were fully sustained by the evidence before the prize court. That the claimants of the cargo had, by the judgment of the Supreme Court, full notice of the grounds on which the cargo was condemned, those grounds relating principally to their own previous conduct in furnishing military supplies to the confederate government and in running the blockade, and to the presumption raised by the circumstances of the case as to their own design and intention in regard to the destination of the cargo. That, notwithstanding this notice, they had failed to avail themselves of the opportunity afforded them before the commission to testily as to the facts and conclusions thus found by the Supreme Court; and that in the case of Mr. Begbie, when placed upon the stand involuntarily, he had refused to answer concerning these very matters. That this failure and refusal to testify on the part of the claimants was to be taken as in effect an admission of the correctness of the conclusions of the court.
That by the evidence adduced before the commission the fact was fully established that all these claimants of the cargo were extensively engaged in running the blockade, and also in furnishing military supplies to the enemy. That the facts thus proved went strongly to confirm the conclusions of the court that the cargo was destined and intended for trans-shipment to and delivery in the Confederate States, and not for a market at Nassau. That they also established that these claimants legally and morally were not neutrals, but enemies of the United States actually engaged in the prosecution of the war against those States: and that, as such, their property on the high seas was liable to capture without regard to the question of blockade. That the question of national character in such case was always a question of the individual national character of the owner, and not of his national character as established by paramount allegiance, citing the Anna Catherina, 4 Rob., 119$ the Vigilantia, 1 id., 1; the Vriendschap, 4 id., 166, and the authorities cited in 3 Phillimore, 605, 606. That these proofs also precluded the claimants from a standing before this commission as neutral British subjects. That as to the vessel, the capture and condemnation of the cargo being lawful, the seizure of the vessel and taking her into port was also lawful as the sole means of reaching the cargo which was lawful prize, and that in such case the vessel was not entitled to costs or damages.
The commission unanimously disallowed the claim for the cargo in No. 316. In the claim for the vessel, No. 442, they unanimously awarded to the claimant the sum of $5,065. I am advised that this award was made in respect of the detention of the vessel from the date of the [Page 123] decree of the district court to the date of her discharge under the decree of the Supreme Court, the latter decree having established that the vessel should have been discharged by the decree of the district court.
The steamship M. S. Perry, alias Salvor; John McLennan, claimant, No. 370.
This vessel, then known as the Salvor, was owned at the breaking out of the rebellion by James McKay, a citizen of Florida. In September, 18.61, McKay took her to Havana, and there went through the form of a sale of the vessel to McLennan, the present claimant, who caused her to be registered in his name at the British consulate at Havana, and re-christened her the M. S. Perry. A bill of sale was given by McKay to McLennan, specifying the nominal consideration of $32,000. On the 13th October, 1861, she sailed from Havana with the ostensible destination of Nassau, but with written instructions to go to the main-land of Florida and there land Donald McKay, a son of the former owner, who went as a passenger, together with several negro slaves of the former owner, McKay. McKay, senior, himself sailed with her for Nassau? holding a power of attorney from McLennan, authorizing him to collect the freight at Nassau.
She was captured on the night of the 13th October, at a point between the Dry Tortugas and the coast of Florida, being headed for the western coast of the peninsula of Florida, and in a position quite wide of the proper course to Nassau, and separated from that port by the whole width of the peninsula of Florida and the waters intervening between that peninsula and the Bahamas. She was taken into the port of Philadelphia, there libelled in the district court, condemned, and sold. No appeal was taken from the judgment of the prize court; but the commission held, as has been already stated, the reasons assigned for the failure to appeal sufficient. The proofs taken before the prize court were not put in evidence before the commission.
From the testimony taken before the commission, it appeared that McLennan was a merchant’s clerk in Havana, not engaged in shipping, and owning no interest in any other vessel than the M. S. Perry. When examined himself as a witness, McLennan refused to say whether he possessed any property or money to enable him to make such a purchase; but it appeared that he gave McKay his promissory notes for the amount of the purchase-money at six, twelve, and eighteen months, without any security for their payment by mortgage on the vessel or otherwise. It did not appear that anything had ever been paid on the notes; and the claimant, when asked on cross-examination whether they had ever been paid, declined to answer. McKay remained in the sole actual management of the vessel after the sale, and employed the captain, the chief engineer, and the ship broker who obtained her freight. McKay also held a power of attorney from McLennan to recover and receive whatever indemnity or compensation should be awarded by the commission [Page 124] in the premises; he verified the memorial filed by the claimant; and he alone appeared to have procured the attendance of witnesses, and to have prosecuted the case before the commission.
A considerable portion of the cargo of the M. S. Perry, upon her capture, consisted of arms and ammunition, of the ownership of which no proof was made, and for which no claim was prosecuted before the commission.
On the part of the United States it was maintained that these facts clearly indicated the pretended sale by McKay to McLennan to be colorable merely, and that upon them the claimant had shown no title to recover; that the direction to the vessel to land young McKay and the negro slaves on the coast of Florida was an attempt to violate the blockade, and justified the capture; that the omission of the claimant to produce the testimony before the prize court left the judgment of that court to be presumed fully sustained by the evidence, and that in the absence of that evidence the commission could not declare the judgment erroneous.
The commission unanimously disallowed the claim.
The steamship Granite City; Edward Pembroke, claimant, No. 377.
This vessel was captured on the 22d March, 1863, on a voyage from Nassau, at which port she had cleared nominally for Saint John’s, New Brunswick. She had shortly before taken a cargo of merchandise from Nassau, through the blockade, to Wilmington, N. C, and succeeded in getting through safely, though fired at by the blockaders, and had also succeeded in running out a cargo of cotton through the blockade. In his deposition in preparatorio, her master, after repeated refusals to state to what port the vessel was actually bound at the time of her capture, finally voluntarily stated, at the end of his deposition, “that he was bound to run the blockade into some confederate port wherever he could get in; and if he could not get in, to go elsewhere.” The proof was unquestioned that she was captured in the prosecution of a voyage designed to violate the blockade. During the pursuit by the captors, and immediately before the capture, a package of papers, of whose contents the captain professed himself ignorant, was burned by his orders.
She was libelled in the United States district court for the southern district of New York, and a decree of condemnation was rendered by that court. (See report of the case, Blatchford’s Prize Cases, 355–357.) Pending the proceedings in the district court, and before the decree of condemnation, the vessel was taken for the use of the United States at an appraised value, under the United States statute of March 3, 1863. (12 Stat, at L., 759.) The cargo was sold under the decree. The claimant alleged himself the owner of the vessel and cargo, and claimed damages, $462,000, besides interest. No appeal was taken from the decree of the district court. The claimant filed, under the order of the commission, a statement of the reasons for his failure to appeal, alleging in effect [Page 125] that the decree of condemnation was by default, the claimant not having appeared in the prize court, and that, the vessel having been taken by the United States, he had no funds, or means of securing funds, wherewith to appeal.
The case was decided without a specific decision upon the sufficiency of these reasons.
On the part of the claimant it was contended that the capture was illegal, in that the vessel had received no warning, and that she was captured on the high seas, and not in the act of violating the blockade by crossing that part of the sea which had been conquered by the blockading power. That the declarations of the master, as to the object and intent of the voyage, did not constitute the offence of violating the blockade, nor authorize the capture. That the fact of the former running of the blockade was not to be taken as proof of the illicit character of the voyage in the course of which she was captured. That the spoliation of papers shown did not constitute sufficient ground of condemnation, and generally that the grounds of condemnation assigned by the court were insufficient under well-settled principles of international law, and without precedent in maritime jurisprudence. That the prosecution of an appeal from the decision of the prize court was not necessary to lay the foundation for reclamation before the commission. That the appropriation of the vessel to the use of the United States before condemnation was an unlawful act, and of itself gave sufficient ground for reclamation. That that act deprived the prize court of jurisdiction, the proceeding being in rem, and the subject of the litigation, therefore, must necessarily be before the court, in order to sustain their jurisdiction.
The counsel for the claimants cited the case of the bark Jones, before the commission under the convention of 1853, between the United States and Great Britain; also Katie’s notes of decisions by the board of commissioners under the convention with France, of July 4, 1831; The Euphrates, 1 Gall., 451; The Diana, 2 id., 93; Smart vs. Wolfe, 3 T. R., 329; The Eole, 6 Rob., 223; Jennings vs. Carson, 4 Cranch, 23; Halleck’s Int. Law, pp. 763, 764, §§ 16, 17; The Pizarro, 2 Wheat., 227; Bernardi vs. Motteaux, Doug., 581; The Wren, 6 Wall; Fitzsimmons vs. The Newport Ins. Co., 4 Cranch, 185; Calhoun vs. The Ins. Co. of Pa., 1 Blinney, 293; The Betsey, 1 Rob., 280; The Vrow Judith, id., 128; The Columbia, id., 130; The Vrow Joanna, 2 id., 91; The Neptunus, id, 92; The Spiece and Irene, 5 id., 76; The Shepherdess, id., 235; The Apollo, id, 256; Vattel, book 3, § 117.
The commission unanimously, and without hearing any argument for the United States, disallowed the claim.
The bark Empress; John Loft, mortgagee, claimant, No. 387.
This vessel was captured off the mouth of the Mississippi River, in November, 1861, sent into the port of New York, and there libelled for [Page 126] adjudication as prize in the district court. The district court adjudged condemnation of vessel and cargo, (Blatehford’s Prize Cases, 175.) An appeal was taken to the circuit court of the United States for the same district, under the practice then existing, which court reversed the judgment of the district court and awarded restitution, (id., 659,) but without costs or damages to the claimants. Pending the proceedings in the prize court the vessel was sold and the proceeds, less the costs taxed against the same, were paid into the hands of the proctors of the claimants in the prize court, Pearson and others, the owners of the vessel.
The memorial alleged that this money was attached in the hands of the proctors by creditors of Pearson, and that Pearson’s interest in the same was appropriated to the payment of the debts due from him to the attaching creditors. The claimant, Loft, alleged himself the holder of a mortgage given by the owner, Pearson, to him to secure the sum of £1,000 and interest, which mortgage was wholly due and unpaid. It alleged that the claimant had never received any notice of the capture of the bark, except as he learned the fact from the owners some time after the capture, and that he was then informed by the owners that they were taking the necessary and proper steps in the law courts for the purpose of protecting their interests.
The memorial also alleged that the bark, at the time of her capture, was worth the sum of £1,000, and that it became largely depreciated in value by being suffered to remain without repairs, and without proper care being taken of it during the time it was detained prior to the sale. The claimant claimed the amount of his mortgage, £1,000 and interest.
His counsel contended that the decree of the circuit court having ordered the restitution of the vessel to the claimants free of all costs and charges, it was plain that that decree had not been executed, over $2,000 having been retained from the proceeds as costs and charges, and the proofs failing to show that the remainder of the proceeds even were ever paid over in any manner under the decree of the court.
On the part of the United States, it was contended that from the memorial itself it appeared that the proceeds of the vessel were regularly paid over to the proctors of the owners, the only claimants appearing in the prize court, excepting only costs allowed by the court as claimants’ costs out of the fund. That it further appeared from the memorial that these funds thus paid over to the proctors were appropriated by regular judicial process to the payment of claims of attaching creditors of the owners. That, if the claimant, Loft, as mortgagee, had a valid lien upon the vessel, that lien could have been followed against the proceeds due, had he seen fit to take the necessary steps for that purpose; and that behaving failed to do so, his lien had been lost by his own negligence. That, as to the sum withheld for costs, nothing appeared to show that that sum was excessive in amount, or was improperly withheld; and that if such had been the case, the remedy of the claimant [Page 127] or of his mortgagor, who represented his interests before the prize court, was ample before the courts themselves. That the whole case showed no ground of international reclamation on behalf of this claimant.
The commission unanimously disallowed the claim.
The steamships Sunbeam, Eagle, Greyhound, Lilian, Lucy, Emma Henry; also, the steamers Banshee, Tristram Shandy; Henry Lafone and John T. Lawrence, No. 389, claimants for the six first named, and John T. Lawrence, No. 431, claimant for the two latter.
These vessels were captured at different times in 1862, 1863, and 1864, by war vessels of the United States, and duly condemned in the prize courts of original jurisdiction. No question was made but that they were all at the time of capture engaged in voyages intended for violation of the blockade. No appeals were taken from the prize courts of original jurisdiction before which they were respectively condemned. The claimants filed their reasons for failure to appeal, in which they alleged poverty and destitution of means to defray the expense of appeal, ignorance of the circumstances of the capture, imprisonment of the masters and crews, and previous adverse decisions by the Supreme Court in like cases, as the excuses for non-appeal.
No specific ruling was made by the commission on the sufficiency of these reasons, but the cases were submitted on their merits, the only claim on the part of the claimants being that they were respectively entitled to formal notice and warning by a blockading vessel before they could be subjected to capture. This question was not argued, and the commission unanimously disallowed the claims.
The brig Geziena Heligonda; Walter Easton, trustee, claimant, No. 390.
This was a Dutch vessel, sailing under charter-party to the firm of Galbraith, Red gate & Co., of Glasgow and Matamoras, for a voyage from Liverpool to Matamoras and back. She was captured on the 4th December, 1864, on the outward voyage, within the blockaded waters of the coast of Texas, and off the port of Brazos Santiago, situated some ten to fifteen miles north of the mouth of the Rio Grande; was taken into the port of New Orleans and there libelled, and in that court a decree of condemnation was rendered on the 2d February, 1865. The claimant applied for a rehearing in the district court, which was granted, and further proof allowed. Jansen, the Dutch master of the brig, was then re-examined in his own language, with the aid of an interpreter; and on the 25th March, 1865, the judgment of condemnation before rendered was annulled, and judgment of restitution awarded, certifying reasonable cause of seizure, and refusing costs and damages to claimant. From this decree both parties appealed, Captain Jansen representing the owners of both vessel and cargo. The Supreme Court, on the hearing, and without any written opinion, unanimously affirmed the decree in all respects.[Page 128]
The claim here was brought by Easton as trustee under a trust deed for the benefit of creditors executed by the firm of Galbraith, Redgate & Co., the alleged owners of the cargo. Samuel J. Redgate, one of the members of this firm, and who was also the claimant in case No. 420, hereinbefore reported, and one of the beneficiaries in No. 439, hereafter reported under the head of the Peterhoff, appeared to be a citizen of the United States. The vessel, when first seen, was not only within the blockaded waters of Texas, but was apparently seeking to effect an entrance into the inlet of Brazos Santiago. Prom the proofs taken in the prize court, however, it was evident that there was no intention to violate the blockade, and that Captain Jansen was seeking to effect this entrance under the mistaken impression that it was the mouth of the Rio Grande. The cargo of the vessel, though containing nothing strictly contraband of war, was in large part fitted and apparently designed for the confederate markets.
On the part of the United States it was contended that the circumstances under which the vessel was captured sufficiently justified the capture as one of “probable cause,” and that no ground existed for overruling or questioning the judgment of the United States courts upon the case.
On the part of the claimant it was insisted that a proper and reasonable examination of the books and papers of the vessel, together with the explanation of her position given by her officers, ought to have fully satisfied the captors of her innocent intent, and to have prevented her detention and taking into port for libel.
The commission unanimously disallowed the claim.
The steamship Adela; Arthur Bower For wood and James Dorrington, No. 392, claimants for the vessel; Arthur Bower For wood and William Bower Forwood, No. 393, claimants for cargo.
This vessel was captured on the 7th July, 1862, near the island of Abaco, one of the Bahama Islands, and a possession of Her Britannic Majesty, in a voyage from Liverpool ostensibly to Nassau. She was taken into the port of Key West, and there libelled in the district court, and a decree of condemnation of both vessel and cargo was there rendered. The claimants appealed to the Supreme Court of the United States, where the judgment of the district court was affirmed. (See report of the case, 6 Wall., 266.)
The Adela was a small side-wheel steamer of light draught, fleet, well adapted for service as a blockade-runner and for short trips like those between Nassau and Charleston or Savannah, but unfit for carrying on trade in voyages of the length of that from Liverpool to Nassau. Her cargo on the outward voyage was light, consisting only of twenty cases of Enfield rifles and twenty-five boxes of cartridges, which had been discharged at Bermuda before her capture, and of some [Page 129] fifty, packages of boots and shoes, which were captured and condemned, and which were the subject of the claim in No. 393.
This claim for the cargo, in No. 393, was withdrawn by the claimants by leave of the commission after the completion of the claimants’ proofs. In No. 392 proofs were taken before the commission in addition to those taken in the prize court, which were also put before the commission.
The position of the Adela, when first summoned by the capturing vessel, as well as when actually captured, was a matter of dispute upon the facts of the case, the witnesses on the part of the claimant giving evidence tending to show that when first summoned, as well as when actually captured, she was within a marine league of the shores of the island of Abaco, while the evidence on the part of the defence tended to show that at both times she was more than that distance from the shore and upon the high seas.
On the part of the claimant it was contended that there was no sufficient proof of the Adela being engaged in an unlawful voyage; and also that the capture, being made within British and neutral waters, was unlawful and void, and the owners entitled to make reclamation.
On the part of the United States it was maintained that the preponderance of the evidence was in favor of the lawfulness of the capture as made upon the high seas, and not in the neutral waters of Great Britain.
The counsel for the United States urged that the doctrine of the sovereignty of the proprietary nation over the sea for a marine league from the shore is founded in the idea of a proper and necessary protection to the adjacent coasts, and to the vessels resorting to them for legitimate trade. That in its original inception this doctrine never included the idea that a vessel engaged in an unlawful voyage might protect herself from capture, to which she would be subject on the high seas, by merely skirting the coast of a harborless and substantially uninhabited island, such as the island of Abaco. That although strictly and technically the coast of such an island might be within the protection of the rule, it was only technically so; and that where a claim is set up for the protection of a vessel actually engaged in an unlawful voyage, and claiming a capture otherwise lawful to be made unlawful by reason of being within a marine league of the shore of such an island, a judicial tribunal should require strict and conclusive proof to bring the vessel within the technical rule, and to satisfy them that the neutrality of the proprietary nation had been in fact violated. That the burden of proof, therefore, devolved strictly and onerously upon the claimants; and that on the evidence appearing in this case it would be, unjust to resolve any doubts which the commission might have in this regard in favor of the claimants.
The claim was unanimously disallowed.[Page 130]
The bark Hiawatha; Miller & Mosman, No. 398, and Ezekiel McLeod, assignee, No. 399, claimants for the vessel; Watkins & Leigh, No. 400; Dalgetty, DuCroz & Co., No. 401; William T. Marshall, No. 402, and the executors of Charles McEwen, No. 452, claimants for cargo.
The Hiawatha was captured by the United States blockading fleet, in Hampton Roads, at the mouth of the James River, on the 20th May, 1861, in attempting to pass through the blockading fleet on an outward voyage from Richmond, Va., for Liverpool. She was taken into the port of New York, and vessel and cargo there libelled in the United States district court, and condemned. (See report of the case in that court, Blatchford’s Prize Cases, p. 1.) On appeal, first to the circuit court and thence to the Supreme Court, the decree of the district court was affirmed, the opinion of the Supreme Court being delivered by Mr. Justice Crier, and a dissenting opinion being read by Mr. Justice Nelson, in which Chief Justice Taney and Justices Catron and Clifford concurred. (See report in the Supreme Court under title of “The Prize Cases,” 2 Black, 635 to 699.)
This was one of the first vessels captured during the war, and one of the first upon the validity of whose capture adjudications were had in the prize courts of both, original and appellate jurisdiction. In the Supreme Court, where the case was argued in connection with those of several other vessels captured about the same time, and involving to some extent the same general principles, the question of the validity of the blockade established under the President’s proclamations of 19th and 27th April, 1861, (12 Stat, at L., 1258, 1259,) and that of the liability of the property of persons domiciled within the insurrectionary States to capture on the high seas as enemy’s property, were elaborately argued. The majority of the court sustained the validity of the blockade and the right of capture of property of citizens of the insurrectionary States upon the high seas as enemy’s property. The minority of the court held “that no civil war-existed between the United States and the States in insurrection till recognized by the act of Congress of 13th July, 1861, (12 Stat, at L., 255;) that the President of the United States does not possess the power under the Constitution to declare war or recognize its existence within the meaning of the law of nations, which carries with it belligerent rights, and thus change the country and all its citizens from, a state of peace to a state of war; that this power belongs exclusively to the Congress of the United States, and, consequently, that the President had no power to set on foot a blockade under the law of nations; and that the capture of the vessel and cargo in this case and in all cases before us in which the capture occurred before the 13th July, 1861, for breach of blockade or as enemy’s property, are illegal and void, and that the decrees of condemnation should be reversed, and the vessel and cargo restored.” (2 Black, 698, 699.)
The case of the Hiawatha was this: She sailed from Liverpool on the 11th February, 1861, with a cargo of salt for Richmond, Va., thence [Page 131] to take cargo back to Liverpool. She passed Hampton Roads, at the mouth of the James River, on the 23d April, and arrived at City Point, the port of Richmond, a few miles below that city on the James River, on the 29th April. She completed the discharge of her outward cargo on the 10th May; immediately commenced lading with her return cargo, (consisting principally of tobacco,) and completed this lading on the 14th or 15th May. On the 16th she weighed anchor and attempted to go to sea without pilot or steam-tug, but was prevented by headwinds. On the 17th a tug attempted to take her out of harbor, but was prevented by the breaking of the tow-line. On the 18th she was taken in tow by another steamer and towed down the river to within about twenty miles of Hampton Roads. From this point she floated down with the tide toward the Roads, and on the 20th was boarded by an officer from a United States blockading vessel, who endorsed upon her register this notice:
This vessel (the Hiawatha) has been boarded by the United States blockading squadron, and warned not to enter any port in Virginia or south of it.
S. H. BROWN,
Blockading Officer, United States Steamer Star.
May 20, 1861.
On the same day, and while still floating with the tide in Hampton Roads, she was seized by the United States war-steamer Minnesota, and thereafter taken into port and libelled, as above recited.
President Lincoln’s proclamation establishing blockade of the ports of Virginia was issued 27th April, 1861, (12 Stat, at L., 1259.) Under that proclamation the blockade of the ports of Virginia upon the Chesapeake Bay and the James River was actually established by Commodore Pendergrast, and a proclamation made of same on the 30th April. On the 8th May, Lord Lyons communicated to Mr. Seward a letter from the British consul at Richmond, dated 5th May, in which the consul had said to Lord Lyons:
There are parties here about to load the British ship Hiawatha at City Point for Liverpool, under the impression that she will be allowed free egress by the blockading squadron. I have told persons who are here representing the owners of the ship that I see no difficulty to the ship leaving in ballast; but to this they will not consent, as the ship came here expressly’ from Liverpool at a nominal freight to load a remunerative cargo back.
Lord Lyons stated to Mr. Seward the hardship of the case of the Hiawatha, in case she should be compelled to return home in ballast in consequence of the blockade, of which, of course, her owners could have had no knowledge when they sent her out, and submitted the case for the consideration of the Government of the United States, requesting an early answer.
Mr. Seward answered on the 9th May, enclosing a letter from the Secretary of the Navy, in which he said:
Fifteen days have been specified as a limit for neutrals to leave the ports, after actual blockade has commenced, with or without cargo, and there are yet remaining five [Page 132] or six days for neutrals to leave. With proper diligence on the part of persons interested, I see no reason for exemption to any.
Lord Lyons again wrote Mr. Seward on the 9th May, acknowledging the receipt of Mr. Seward’s letter, and saying:
In order to avoid all possible mistake with regard to the Hiawatha, as well as to future cases of the same kind, I venture to request you to inform me whether I am right in concluding, from the statement just quoted, that the date of the shipment of the cargo is immaterial, and that vessels leaving the ports, before the expiration of the fifteen days will be allowed to proceed with their cargoes, whether such cargoes were shipped before or after the actual beginning of the effective blockade.
This letter was answered by Mr. Seward on May 11, enclosing another letter from the Secretary of the Navy, as follows:
In answer to Lord Lyons’s letter of the 9th instant, I have the honor to inform you that neutral vessels will be allowed fifteen days to leave port after the actual establishment of the blockade, whether such vessels are with or without cargoes.
Lord Lyons responded to Mr. Seward on May 11, thanking him for his prompt information, reciting the correspondence, and saying:
I have, consequently, instructed Her Majesty’s consuls to advise masters of British vessels that they are at liberty to take cargo on board as well after as before the commencement of the blockade, and that they will be allowed fifteen days to go to sea, whether with or without cargoes, and whether their cargoes be shipped before or after the actual commencement of the effective blockade.
On the same day Lord Lyons sent to the British consuls at Richmond and other ports a circular, as follows:
Neutral vessels will be allowed fifteen days to leave port after the actual commencement of the blockade, whether such vessels are with or without cargoes, and whether the cargoes were shipped before or after the commencement of the blockade.
He also sent, on the same day, a dispatch to Rear-Admiral Sir A. Milne, of Her Majesty’s navy, enclosing, with other documents, copies of the proclamation of the President of April 27, of the notice of blockade by Commodore Pendergrast of April 30, and saying:
The general result of inquiries made by me or other foreign ministers here, as to the manner in which the blockade will be conducted, appears to be—
- That the date of the commencement of the blockade in each locality will be fixed by the issue of a notice by the commanding officer of the squadron appointed to blockade it. It does not, however, appear to be intended that such notice shall be officially communicated to the governments of neutral nations, or to their representatives in this country.
- That fifteen days from the beginning of the effective blockade will be allowed, in every case for neutral vessels already in port to put to sea.
- That, until the fifteen days have expired, neutral vessels Will be allowed to come out with or without cargoes, and whether their cargoes were shipped before or after the actual commencement of the blockade.
- That, except in the last-mentioned particular, the ordinary rules of blockade will be strictly enforced.
- The armed vessels of the neutral states will have the right to enter and depart from the blockaded ports.
I continue to be of opinion that, provided the blockade be effective and be carried on in conformity with the law of nations, we have no other course, in the absence of positive instructions from Her Majesty’s government, than to recognize it.
In the decision of the cause in the district court, Judge Betts expressed the opinion that the correspondence between Mr. Seward and Lord Lyons did not constitute any relaxation of the general rule limiting the right of departure of neutral vessels from a blockaded port to such cargo as had been laden before receiving notice of the blockade; so that, if the Hiawatha had departed within the fifteen days allowed for departure after the establishment of the blockade, she would not have been entitled to take out the cargo laden after knowledge of the blockade, (Blatchford’s Prize Oases, p. 20.) The Supreme Court, however, distinctly overruled Judge Betts upon this point, saying:
After a careful examination of the correspondence of the State and Navy Departments, found in the record, we are not satisfied that the British minister erred in the construction he put upon it, which was that a license was given to all vessels in the blockaded ports to depart with their cargoes within fifteen days after the blockade was established, whether the cargoes were taken on board before or after the notice of the blockade. All reasonable doubts should be resolved in favor of the claimants. Any other course would be inconsistent with the right administration of the law and the character of a just government.
The British consul at Richmond gave to the master of the Hiawatha, on the 15th May, a certificate stating that, according to the best information attainable by him, the effective blockade at the mouth of the James River began on the 2d May. After the capture of the vessel, correspondence ensued between Lord Lyons and Mr. Seward, in which Lord Lyons earnestly recommended the case of the Hiawatha to the favorable consideration of the United States Government, saying that it appeared “that the master of this vessel was innocent of any intention to break the blockade, and that his not having passed the blockading squadron earlier was due to erroneous information or unavoidable detentions,” He also called attention to the cases of the Haxall and the Octavia, and expressed the hope that the Government of the United States would be disposed to extend to the Hiawatha the same favor which had been shown to those vessels.
In another letter to Mr. Seward, Lord Lyons said:
I do not, of course, consider myself competent to make any comments upon the decision of Judge Betts on questions of law: nor do I ground my present application upon legal considerations at all. My desire is, in conformity with the learned judge’s own suggestion, to obtain relief for the owners of the Hiawatha by an appeal to the equity and indulgence of the Government of the United States.
That, by giving relief to the memorialists, the United States Government would evince a spirit of comity and generosity which would be highly appreciated by the government of Her Majesty.
In the cases of the Tropic Wind, the Haxall and the Octavia, those were vessels captured about the same time with the Hiawatha, and under similar circumstances had been released by order of the Government, on the application of parties interested or their respective governments, the” Tropic Wind after judgment of condemnation, and the Haxall and Octavia before judgment.[Page 134]
In cases No. 400 and 401, the memorials failed to show the respective claimants the owners of the portions of the cargo claimed by them, but showed those portions respectively to be the property of one David Dunlop, a resident of Petersburgh, Va., who was shipping them to the claimants in performance of executory contracts between him and the respective claimants for that purpose.
In the case of Wm. T. Marshall, No. 402, the memorial showed that the claimant was, at the time of the capture, domiciled in Richmond, Va.
Demurrers were interposed in those cases, specifying these respective grounds.
In the case of McEwen’s executors, No. 452, the proofs showed the testator domiciled at Richmond down to about the time of the capture; but about that time, the proofs failing to show whether shortly before or shortly after, he returned to the domicile of his nativity in Great Britain, where he ever after remained until his death.
On the part of the claimants it was contended that, irrespective of the strict rule of prize law applicable to the case of the Hiawatha, the case was one where in “justice and equity” the claimants were entitled to indemnity, being without intentional fault, and morally, at least, innocent of any intention to violate the blockade, or do any illegal or prohibited act; that the master of the vessel had used the utmost diligence in lading his vessel within the time which he was informed he was entitled to consume in lading it, and had been prevented from reaching Hampton Roads within the time limited, by causes beyond his control; that he ought not to be made to suffer for the accidents that had deprived him of the services of a pilot and the aid of steam, nor for the winds that retarded the progress of his ship to sea, nor by reason of the master’s failure, in the emergency of an unexpected war, to understand the exact legal significance of proclamations of the President, and the legal consequences of blockade; that at the time of the capture no war existed between the United States and the Confederate States, by virtue of which the blockade of the confederate ports could be lawfully established; that no such war could be taken as existing until recognized by the act of Congress of 13th July, 1861; that consequently the President had no power to set on foot a blockade of the ports in question under the law of nations prior to the 13th July, 1861; that the capture of the Hiawatha and her cargo, whether for breach of blockade or as enemy’s property, was illegal and void; and that by the terms of the President’s proclamation the vessel was entitled to a warning indorsed on her papers by an officer of the blockading force, and was not liable to capture except for an attempt to leave port after such warning.
As part of his argument, the counsel for the claimant cited and adopted the dissenting opinion of Mr. Justice Nelson in “The prize cases,” (2 Black, 682.) He cited also the case of the Neptunus, (3 Rob., 110, 173; and Medeiros vs. Hill, 8 Bing., 231.)[Page 135]
On the part of the United States it was contended that, as a matter of fact, war actually existed between the United States and the Confederate States at and from the dates of the respective proclamations of blockade by the President on the 19th and 27th April, 1861, Virginia having seceded by ordinance of her convention on the 20th April, and having actually and formally joined the Confederate States on the 27tk April. That, war thus existing, the establishment of a blockade was within the constitutional powers of the President as the chief executive officer of the United States and commander-in-chief of the Army and Navy. That certainly as to foreign nations his acts were to be regarded fully and completely as the acts of the United States, and the establishment of a blockade by him was its establishment by the nation. That the validity of the blockade so established by him was unquestioned by the Congress which met after the issuing of the proclamation, and while it was in the course of enforcement; and that it was expressly legalized by the statute of 6th August, 1861, which legalized and made valid the President’s acts, proclamations, and orders, after the 4th March, 1861, “respecting the Army and Navy of the United States * * with the same effect as if they had been issued and done under the previous express authority and direction of the Congress of the United States.” (12 Stat, at L., 326.) That the validity of this blockade had been fully recognized by the British government as well as all other foreign powers as effectual and valid; citing the correspondence of Lord Lyons, above recited, and Prof. Bernard’s “Neutrality,” &c., p. 231 n. That the proclamation of the President did not modify or assume to modify the law of blockade as held by the rules of international law; and that it was only in case of a vessel innocently approaching the blockaded port without notice, that she was entitled to be duly warned off before becoming a subject of capture; citing on this point the Columbia, 1 Rob. 156; the Vrow Judith, id., 152; the Betsey, id., 332; the Adelaide, 2 id. 111; the Calypso, id., 298; the Tutela, 6 id., 181; 3 Phillimore, 394; Prof. Bernard’s Neutrality, p. 236. That the misapprehension of legal rights by the master of the Hiawatha could not be taken into account as excusing his action in attempting to pass out through the blockade after the expiration of the time allowed him by the rules of international law, and by the specific notice contained in the diplomatic correspondence above recited for that purpose. And that the accidents by which the claimants attempted to excuse the failure of the Hiawatha to leave within the permitted time could not be held to make her departure lawful, or exempt her from capture.
As to the argument of the claimant’s counsel in favor of the rights of the claimant before this commission, under general principles of justice and equity outside of and beyond the principles of international law as held by the prize courts, the counsel for the United States held the same general line of argument as above reported under the case of the Sir William Peel, No. 243; and insisted that the fact of the Government [Page 136] of the United States having remitted its lawful claims for its own reasons in the cases of the Tropic Wind, the Octavia, and the Haxall, certainly could not be taken as any reason for enforcing as matter of right the same generosity in the case of the Hiawatha.
The commission unanimously disallowed the claims of Watkins & Leigh, No. 400, and of Dalgetty, Du Croz & Co., No. 401, on the ground that the ownership of the portions of the cargo claimed by them respectively did not appear to be in them but in a citizen of the United States. They also unanimously disallowed the claim of Win. T. Marshall, No. 402, it appearing that he was permanently domiciled in the city of Richmond within the enemy’s country.
It made awards in favor of the claimants for the vessel in Nos. 398 and 399, amounting to $25,369; and an award in favor of the executors of McEwen, No. 452, in respect of McEwen’s portion of the cargo, for $6,090; Mr. Commissioner Frazer dissenting from these three awards.
The steamer Peterhoff; Spence & Fleming, No. 405, claimants for the vessel; James Wetherell, No. 406; William Almond, No. 407; Alfred Wilson and others, No. 408; the same, No. 409; Joseph Spence, No. 410; Alfred Lafone, No. 411; Charles S. Osborne and others, No. 412; Anna Louch, No. 413; Frederick D. Frost and others, No. 414; Thomas P. Austin, No. 415; James Holgate, No. 416; Jarman & Smith, No. 417: Welch, Margetson & Co., No. 422; Wilson & Armstrong, No. 423; Grant, Brodie & Co., No. 424; Hine, Mundella & Co., No. 425; Ernest Ellsworth, No. 426; John Ellsworth, No. 438; Walter East on, trustee, No. 439; Robert Sinclair, No. 440; Thomas Edgley & Co., No. 441; claimants for cargo.
This vessel was captured on the 25th February, 1863, in the Atlantic Ocean, off the Island of St. Thomas, taken into the port of New York, and there libelled as prize in the United States district court. A decree of condemnation passed in that court against both vessel and cargo. (See Blatchford’s Prize Cases, 381,463, to 550.) An appeal was taken to the Supreme Court, which court reversed the decree of condemnation by the district court, except as to a small portion of the cargo, found by that court to be contraband of war, and intended for the ultimate use of the enemies of the United States, and belonging to the claimants in cases Nos. 408, 409, and 411, and except also so much of the remaining cargo of the Peterhoff as belonged to the owners of the contraband goods thus condemned. The cause was thereupon remanded to the district court by the Supreme Court, with directions to enter a decree in conformity to the opinion of the Supreme Court. Pending the proceedings in the prize courts, the vessel was taken by the authorities of the United States, for the use of the government, under the statute for that purpose above referred to under the case of the Granite City, No. 377. The cargo was also sold by order of the district court, pending the proceedings. On the remanding of the cause to the district court, proofs [Page 137] were there taken as to the portions of the cargo condemned as contraband and its value, and as to other portions of the cargo and their value belonging to the owners of the contraband cargo, as to the costs of the captors chargeable against the vessel, and as to the claimant’s costs chargeable against the ship, and the condemned and uncondemned cargo, and these costs were duly apportioned accordingly. The amount of the appraised value at which the ship had been taken, less the costs charged against her, was pajd over to her owners. The proceeds of the uncondemned cargo were also paid over to their respective owners, less the proportion of claimant’s costs against same, which costs were paid to the proctors of the respective claimants, to whom they were, by the final decree, allowed. No complaint appeared to have been made in the district court as to the allowance or apportionment of the costs and charges, or in respect of the appraised value at which the United States had taken the vessel; and no question in respect of either of these matters was taken to the Supreme Court on appeal. By stipulation of the counsel for the respective parties, all the papers relating to the appraisal and taking of the vessel by the United States were omitted from the apostles sent up to the Supreme Court on appeal.
The claimants in No. 405 claimed about £21,000, besides interest, for the alleged value of the vessel, over and above the appraised value at which she was taken by the United States; and for freight and passage money which they would have been entitled to receive, and costs and expenses sustained by them.
The claimants in Nos. 408, 409, and 411 claimed about £6,000, besides interest, the alleged value of their portions of the cargo condemned, including prospective profits upon the sale of the same at Matamoras, and their costs and expenses.
The claimants in the remaining cases claimed about £40,000, besides interest, for the alleged value of their portions of the cargo, including prospective profits on its sale at Matamoras, and their costs and expenses respectively, less the respective amounts received by them from the proceeds of the cargo.
The proofs showed that the Peterhoff sailed from London for the mouth of the Rio Grande in January, 1863, the bills of lading of her cargo specifying the same as destined for Matamoras, and to be taken from alongside the ship at the mouth of the Rio Grande. Included in the cargo were some thirty-two cases of artillery harness, a large quantity of boots, described in the invoices as “artillery boots,” “men’s army bluchers,” &c.; and eighty bales of blankets described in the invoice as “government regulation gray blankets.” Besides these portions, which were held by the Supreme Court as belonging to the class of articles “manufactured and primarily and ordinarily used for military purposes in time of war,” and so contraband when destined to the use of a belligerent; the cargo included large quantities of iron, steel, nails, leather, and drugs, including 1,000 pounds of calomel, large amounts of morphine, 265 [Page 138] pounds of chloroform, and 2,640 ounces of quinine, all goods in special demand for the use of the confederacy. Much of the cargo was deliverable to order. A package deposited with the captain by Mohl, one of the Texan passengers, and which the captain testified he was told by Mohl contained “white powder,” but which the mate testified appeared to be a package of “dispatches,” was thrown overboard by order of the captain on the boarding of the vessel by the captors. Other papers were at the same time burned by the fireman by order of the captain. The firm of James I. Bennett & Wake, London, were the agents of, the Peterhoff, and the cargo was mainly secured through them. A circular of this firm was proved, dated 24th November, 1862, in which they notified their “friends desirous of shipping to America” that they would dispatch a vessel to the Bio Grande about 1st December; that the services of Mr. Redgate, Lloyd’s agent, an expert in cotton, and who had been a resident nearly forty years in Texas and Mexico, had been secured, whose services would “be of great value to shippers in respect to his local knowledge and influence, as also as regards agency of the inland transit and landing and shipping of goods and cotton.” And further, that “a Mr. Besbie, of the Confederate States of America, holds a contract with that Government, whereby he is to receive 100 per cent, on invoice cost, payable in cotton * * * for any goods he may deliver into the Confederate States,” the benefits of which contract he would share to the extent of 50 per cent, with any houses that might feel inclined to ship. The Mr. Redgate named in this circular was a passenger on the Peterhoff at the time of her capture, and was a claimant for part of the cargo and for damages by occasion of his capture and detention before the commission. The Mr. Besbie, or Begbie, also named in the circular, joined the ship at Plymouth, but suddenly left it at Falmouth. His name was not mentioned by the master in his deposition in preparatorio, who alluded to him merely as “another passenger” who “left at Falmouth.” Neither of the firm of Bennett & Wake was examined as a witness by the claimants before the commission, though notice was given of the examination of Bennett, and proof was made that he was within reach in London at the time of the taking of the testimony for the claimants there, and the counsel appearing for the United States on the examination demanded his production as a witness for the claimants pursuant to the notice. Bennett & Wake had contracted on the 27th October, 1862, with Pile, Spence &. Co., the owners of the Peterhoff, for the laying on of a first-class screw-steamer to proceed to the Bio Grande on freight; under which contract the Peterhoff was dispatched, as named in the circular of Bennett & Wake of 24th November, 1862, above referred to.
The counsel for the United States referred to and adopted the opinion of the Supreme Court, (5 Wall., 28,) as part of his argument. He maintained that the proofs before the prize court, especially strengthened as they were by the proofs taken before the commission, fully sustained the [Page 139] condemnation of the portion of the cargo condemned by the Supreme Court as contraband, and in fact sufficiently showed the pretended destination of the vessel and cargo to Matamoras to be colorable. That if all the proofs now appearing before the commission had been before the prize court, they would have fully justified the condemnation of the vessel and the entire cargo. That in any event, the capture of the vessel and taking her into port was justified by the presence of the contraband on board, which was in fact liable to condemnation as well as by the circumstances of the case, fully establishing probable cause. That the evasions and falsehood of the master, Jarmin, on his examination in preparatorio, and the spoliation of papers shown, of themselves debarred the claimants from any award for costs or damages. That as to the taking of the vessel by the United States at an appraisement below her alleged actual value, and as to the alleged errors of the district court in the apportionment of claimants’ costs upon that part of the cargo not condemned in captor’s costs, those were matters as to which no question was raised in the prize-courts, and for which those courts afforded an ample remedy if any injustice was done in respect of them to the claimants, or any of them, and that the claimants could not be heard here for the first time to question the legality of the proceedings in those respects. That as to the apportionment of the claimants’ costs, this appeared to have been done not only without objection of the claimants in the prize court, but on the application of their own proctors and counsel. And as to the appraisement and taking by the United States, everything in relation to these matters had been by stipulation withdrawn from the consideration of the Supreme Court, thus clearly implying the consent of the owners to the taking at the valuation named.
On the part of the claimants, it was contended that the portions of the cargo condemned by the decree of the Supreme Court as contraband were not in fact contraband, not primarily designed for military use, and not shown to be destined for the use of the enemies of the United States. That the voyage of the vessel was lawful from one neutral port to another, and that her capture, was wholly unjustified by any proof of intent to violate the, blockade, or of unlawful conduct in any respect. That the valuation at which the vessel was taken by the United States Government was much less than her actual value, and that the United States were justly chargeable with at least the sum of $30,000, on account of this difference in value. That the apportionment of claimants’ costs upon those portions of the cargo not condemned in costs was unlawful. That the question of costs had already been settled by the decree of the Supreme Court 5 and that the district court in charging these claimants’ costs upon those parts of the cargo exempted from costs by the decree of the Supreme Court, disregarded and violated that decree.
The commission unanimously disallowed all the claims.
The steamship Georgia; Edward Bates, M. P., claimant, No. 429.
The memorial of the claimant in this case recited that the Georgia [Page 140] was an armed vessel of the Confederate States. That she came into the port of Liverpool on or about the 2d May, 1864; was there disarmed and advertised for sale; and that the claimant, on the 2d June, 1864, purchased her without any armament, and paid for her in good faith the sum of £15,000 sterling, her full value at the time of the purchase. That he immediately changed her internal arrangements to fit her for use as a merchant steamer, and on the 18th July, 1864, chartered her to the Portuguese government for a voyage to Lisbon, Portugal, having spent a large sum of money in the alterations and fittings to adapt her for carrying passengers and cargo pursuant to the terms of the charter-party. That under the charter-party the vessel was laden by the Portuguese government with coals for the use of the vessel, and duly cleared at Liverpool on her voyage to Lisbon. That while pursuing that voyage, “in a peaceable manner and in violation of no law whatsoever,” she was unlawfully captured on the high seas by the United States ship of war Niagara; was taken into the port of Boston, there libelled in the United States district court, and condemned as lawful prize. That an appeal was taken from the decree of the district court to the Supreme Court of the United States, which on the hearing affirmed the decree of condemnation. The claimant claimed an award for £27,654, besides interest.
To this memorial the United States demurred as setting forth no valid claim against the United States; in that the memorial showed the vessel to have been an armed vessel of war of the so-called Confederate States of America, which were, during the whole period of the transactions set forth in the memorial, at war with the United States. That she entered the neutral port of Liverpool in her character as such armed vessel of war, and was there purchased by the claimant, her armament having been first removed, with full know edge of her former character as such vessel of war, belonging to a power at war with the United States. That such purchase carried no title to the claimant as against the United States, or as against their right to capture the vessel as a vessel of war; and that her subsequent capture by the United States, as set forth in the memorial, was a lawful and valid capture, and the vessel was properly and lawfully condemned by the prize courts.
The counsel for the United States submitted the case on demurrer on the opinion of the Supreme Court, delivered on the affirmance of the decree of condemnation (7 Wall., 32) and without further argument.
Her Britannic Majesty’s counsel filed an argument in behalf of the claimant, in which he contended that the doctrine held by the Supreme Court, as establishing liability of the vessel to capture after her disarmament and sale, was unsound and unsustained by the authorities cited in the opinion. He cited and discussed the authorities cited by the Supreme Court in its opinion, to wit: The Minerva, 6 Rob., 397; the Baltic, 11 Moon’s P. C. R., 145; Story’s notes on the Principles and Practice of Prize courts, 63; Wildman, vol. 2, p. 90; and contended that these authorities [Page 141] did not sustain the conclusions of the Supreme Court on which the decree of affirmance was based.
The claim was unanimously disallowed.
The steamship Circassian; Henry James Barker, mortgagee, No. 432, claimant for vessel; Overend, Gurney & Co., mortgagees, claimants for freight; The Royal Exchange Assurance Corporation and others, No. 444, claimants for cargo.
The Circassian was owned by Zachariah C. Pearson, of Hull, who had given mortgages to the amount of £25,000 upon the vessel, which mortgages were held by the claimant Barker, No. 432. He had also assigned her outward freight to Messrs. Overend, Gurney & Co., No. 433, by way of security for indebtedness. The vessel sailed from Bordeaux, France, on the 7th April, 1862, under the charter-party hereinafter recited. She was captured by a United States cruiser on the 4th May, 1862, on the high seas off the coast of Cuba, taken into the port of Key West, and there libelled and condemned as prize. An appeal was taken to the Supreme Court, which court affirmed the decree of condemnation, Mr. Justice Nelson dissenting. The case is reported, with the dissenting opinion of Mr. Justice Nelson, in 2 Wallace, 135 to 160.
The vessel was chartered by the owners 11th February, 1862, to “J. Soubry, agent to the merchants of Paris,” being then on her way from London to Cardiff, to proceed thence with all convenient speed to Havre or Bordeaux, there to load; “and being so loaded, shall therewith proceed to Havana, Nassau, or Bermuda, as ordered on sailing, and thence to proceed to a port of America, and to run the blockade, if so ordered by freighters,” the owners agreeing “not to cover more than half her value, say £20,000, by insurance against war risk.” The rate of freight agreed upon was $40 per ton, with 10 per cent, primage. The vessel was loaded at Bordeaux, shipping receipts being given by the master in the following tenor, (after specifying the merchandise shipped:) “Which said merchandise I promise to convey in my said steamer (the dangers of the seas, machinery, and all other unavoidable accidents excepted) to the said port of Havana, there to receive orders for the final destination of my said steamer, and there to deliver the same to Messrs. Brulatour & Co., or their order, (or to order generally,) he or they paying me freight in accordance with the terms of my charter-party, which is to be considered the supreme law as regards the voyage of said steamer, the orders to be received for her and her final destination.” A “memorandum of affreightment,” given to Mr. Bouvet, one of the shippers, was found among the papers of the vessel, the translation of which is as follows:
Memorandum of affreightment.
Taken on freight of Mr. Bouvet, jeune, by order and for account of Mr. J. Soubry on board of the British steamer Circassian, Captain Hunter, bound to Nassau, Bermuda, or Havana, the quantity of fifty or sixty-five tons, heavy or light, at the rate of $40 per ton for the heavy and the light, besides 10 per cent, average and primage.[Page 142]
The merchandise must he put on board, including all delay, the day after notice, given by the broker having in charge the loading, under the penalty of all damages and the loss of the place on board, without recourse to judicial measures to prove the suit for non-execution of the present engagement.
Mr. J. Soubry engages to execute the charter-party of affreightment, that is to say, that the merchandise shall not be disembarked but at the port of New Orleans, and to this effect he engages to force the blockade, for account and with authority of J. Soubry.
Bordeaux, the 15th February, 1862.
Sent a similar memorandum to the parties concerned.
Other papers were destroyed by the master of the Circassian after she had been stopped, and before she was boarded by the captors. The vessel was captured, as above stated, on the 4th May, 1862. Five days previous to the capture—on the 29th April, 1862—the city of New Orleans was captured by the Navy and Army of the United States, under Admiral Farragut and General Butler, and thenceforward continued in the possession of the United States to the termination of the war. A proclamation was issued by General Butler, dated 1st May, printed by some Federal soldiers in a printing-office seized for that purpose, on the 2d May, and first generally published in the newspapers of the city on the 6th May; which proclamation declared, among other things, that “the city of New Orleans and its environs, with all its interior and exterior defences, having been surrendered to the combined naval and land forces of the United States; and having been evacuated by the rebel forces, in whose occupation they lately were; and being now in occupation of the forces of the United States, who have come to restore order, maintain public tranquility, and enforce peace and quiet under the laws and Constitution of the United States, the major-general hereby makes known and proclaims the objects and purpose of the Government of the United States in thus taking possession of the city of New Orleans and the State of Louisiana. * * * * All rights, of property of whatever kind will be held inviolate, subject only to the laws of the United States,” &c. This proclamation also declared the city under martial law.
In the case of the Venice, (2 Wall., 276,) the Supreme Court of the United States held that the military occupation of the city was to be considered as substantially complete from the date of this publication in the newspapers, (6th May.)
On the 12th May, President Lincoln issued a proclamation reciting the blockade, up to that time, of the port of New Orleans, with two other ports, and that the blockade of those ports may now be safely relaxed with advantage to the interests of commerce,” and declaring that the blockade of those ports “shall so far cease and determine from and after the 1st day of June next; that commercial intercourse with those ports, except as to persons, things, and information contraband [Page 143] of war, may from that time be carried on, subject to the laws of the United States,” &c. (12 Stat. at L., 1263, 1264.)
Barker, as mortgagee of the vessel, (No. 432,) claimed £23,200, besides interest. Overend, Gurney & Co., assignees of the outward freight, (No. 433,) claimed £10,000, besides interest. The insurance companies and underwriters (No. 444) claimed £52,636, besides interest, the value of the cargo insured by them, abandoned by the owners, and paid for as for a total loss. Of the cargo thus insured, portions to the value of £11,503 were alleged to have been owned by British subjects and insured by the claimants, British underwriters. The remainder of the cargo, valued at £41,133, was admitted to have been owned by French merchants residing at Bordeaux, though insured by British underwriters. On the sale under the decree of condemnation the gross proceeds of the vessel were $107,000, United States currency; the gross proceeds of the cargo were $243,479.49 in the same currency.
Oil the part of the claimants it was maintained—
- That the immediate destination of the Circassian at the time of her capture was Havana, a neutral port; that this destination was a real one; and that the question whether her voyage was to extend beyond Havana was an open question, not to be decided until her arrival there; so that her capture before reaching Havana could not be considered a capture in the course of a voyage to a blockaded port; that until her arrival at Havana and departure thence for a blockaded port, a locus penitentiœ existed, even if the original design had been that she should proceed from Havana to New Orleans.
- That notwithstanding the doctrines held by the prize courts of England and the United States, the more approved modern authorities overrule the doctrine of the droit de prevention and droit de suite; “that is to say, the right of considering as guilty of a violation of the blockade every neutral vessel which has sailed for a place declared blockaded after knowledge of the notification; and of regarding in flagranti delicto, during the whole return voyage to its port of destination, every vessel which has left a blockaded port;” and hold as the better doctrine that “the guilty vessel can only be seized, first, at the moment of violating the blockade by crossing the part of the sea which has been conquered by the blockading squadron; second, in the road or blockaded port, if the investing force can enter there, either by taking the port or by penetrating there by force or stratagem and carrying off the vessel; and third, at the moment of attempting to go out, that is to say, when crossing the territory of a nation whose law it has violated, even although the departure in itself should be innocent.” That under this doctrine the capture of the Circassian was unlawful on the high seas, even if her direct destination was a blockaded port.
- That by the terms of the President’s proclamation of blockade, as well as by the rules of international law, the Circassian could not be lawfully [Page 144] captured until she had received due notice of the blockade by warning entered upon her register.
- That by the capture of New Orleans and the reduction of that city to the possession and control of the United States before the capture of the Circassian, the blockade of that port had ceased; that the right of blockade being a purely belligerent right, and in respect of an enemy’s port, of necessity terminates eo instanti on the cap toe of the blockaded port itself by the blockading belligerent; that in the case of New Orleans, not only was the fact of its capture in the month of April, and its permanent and complete occupancy and control by the United States from that time forward fully attested as a matter of history, but such possession and occupation was officially asserted and proclaimed by the proclamation of General Butler on the 1st May,’ 1882; that this proclamation speaks from its date, and not from the time of its alleged general publication in the newspapers, erroneously assumed by the Supreme Court to have been on the 6fch May, it in fact having been published in the New Orleans Daily Picayune on the 4th May, 1862, as appeared by a copy of that paper produced before the commission; that the, right to close or control the captured port by municipal regulation under the statute of 13th July, 1861, (12 Stat. at L., 258, 257,) was not only entirely distinct from, but inconsistent with the belligerent right of blockade, and that the former right accrued when the latter terminated, upon the capture and complete possession of the city; and that, under the municipal regulations instituted, or to be instituted, in such case, plainly no capture could be made on the high seas, those municipal regulations not operating extra-territorially; that the blockade having thus terminated by the capture of New Orleans, the right of capture of the Circassian, if it had existed until then, necessarily terminated with the termination of the blockade, the vessel no longer being in delicto. That in regard to the claims of the insurance companies and underwriters in No. 444, those claims were the legitimate subject of reclamation before this commission, as well in respect of those portions of the insured cargo originally owned by French merchants as of those owned by British subjects; that upon abandonment and payment the title of the underwriters became absolute to all interest of the insured in the property, and to all right of reclamation in respect of the same, and that such title related back to the date of the insurance.
The counsel for the claimants presented manuscript opinions of doctors Phillimore and Lushington, and other counsel, holding the capture of the Circassian illegal on account of the lack of previous warning, as well as upon the ground of the previous capture and occupation of New Orleans. They also presented the dissenting opinion of Mr. Justice Nelson, in the case of the Circassian, (2 Wall., 155,) as a correct exposition of the law applicable to the case, and cited the following authorities: The Prize Cases (2 Black, 635); the Amy Warwick (2 Sprague, 123) the Venice (2 Wall., 259); Thirty Hogsheads of Sugar vs. Pyle (9 Cranch, [Page 145] 191); The United States vs. Rice (4 Wheat, 246); Fleming vs. Page (9 How., 603); Cross vs. Harrison (16 How., 164); The Abby (5 Rob., 253); The Trende Soztre (6 Rob., 390 n); The Francisca (10 Moore’s P. C. R., 37); Palli, Principes de droit pub. mer., 180; Dana’s Wheat., 687 n; The Lizette (6 Rob., 395); The Empress (Blatch. P. C., 659); Dean’s Law of Blockade 2, 32; Lawrence’s Wheaton, pp. 30, 100, 459, 510, 777 to 779, 810, 845, 848 to 850, 970; Wheaton’s Life of Pinckney, 199 to 228; The Dickinson (1 H. and M., 31); La Jeune Eugenie, (2 Mason, 409, 463); The Louis (2 Dods., 110); The Antelope (10 Wheat., 122); The Mary Anna Flora (11 Wheat., 442); Lawrence’s Visitation and Search, 73, 79; Hudson vs. Guestier (6 Cranch, 281); Race vs. Himely (4 Cranch, 272); 2 Phill., 237; American State Papers, vol. 4, pp. 156, 158; The Arthur (1 Dods., 425); Hautefeuille, vol. 2, pp. 239, 244; Vos vs. United States Insurance Company (1 Caines’s Cases in Error, XXIV); Vandenheuvel vs. Same (2 id 217); Liotard vs. Graves (3 Caines’s Rep’s, 239); Fitzsimmons vs. The Newport Insurance Company (4 Cranch, 185); Hill vs. United States (C. Cls. R.,); The Maria (5 Rcb., 365); The Maryland Insurance Company vs. Wood (6 Cranch, 29); The Admiral, (3 Wall., 614); Attorney-General’s Opinions, vol. 1, p. 505; The Frederick Molke (1 Rob., 87); The Rolla (6 id., 372); The Success (1 Dods., 134); La Peyre vs. United States, in U. S. Sup. Ct., MS. opin., not yet reported; Bynkershoek de rebus bellicis, c. XYI; The Grey-Jacket (5 Wall., 342); S. C., on motion (id., 370); Tudor’s Leading Cases on Mercantile and Maritime Law, 887; Texas vs. White (7 Wall., 789); Comegys vs. Vasse (1 Peters, 210); Shepherd vs. Taylor (5 id., 712); Trevol vs. Bache (14 id., 95); Gill vs. Oliver’s Executors (11 How., 529); Jaudon vs. Corcoran (17 id., 612); Gracie vs. New York Insurance Company (8 Johnson’s R., 237); Watson vs. Insurance Company of North America (1 Binney, 47); Carlisle vs. United States, in Sup. Ct., not yet reported.
On the part of the United States it was contended that the voyage of the Circassian was plainly undertaken with the purpose and intent of violating the blockade; that she was under express contract with her freighters to violate it, and was in the actual prosecution of the voyage with that purpose and destination when captured, and was thereby liable to capture and condemnation. (The Columbia, 1 Rob., 156.) That having full knowledge of the existence of the blockade, and having expressly undertaken its violation, no further notice or warning was necessary to justify her capture.
That New Orleans, which had been fully and completely an enemy’s city, and one of the enemy’s chief marts from the outbreak of the rebellion in 1861 to its occupation by the Army and Navy of the United States on the 29th April, 1862—five days before the capture of the Circassian— had not been reduced to the fixed, stable, and assured possession of the United States at the time of that capture. That the mere possessio pedis of the city by the United States did not work the instant termination [Page 146] of the blockade, but that reasonable time after the actual possession must be allowed to determine whether the occupation was such a stable and permanent one as to justify the opening of the port as a port of the United States; That until such occupation was so established, New Orleans still remained an enemy’s city as regarded the rights of neutrals to trade there.
That time must be given after the actual occupation, reasonably sufficient to put in force the municipal regulations of the United States, with the apparatus of custom-houses and courts, through which such municipal regulations were to be enforced; and that until sufficient time had elapsed for that purpose, the belligerent right of blockade continued; that the blockade of New Orleans was not a blockade “by the simple fact only,” but “by a notification accompanied with the fact;” and such blockade continued within reasonable limitation till ended by like public notification. (The Neptune, 1 Rob., 170.)
That the time fixed by the Supreme Court in the case of the Venice (2 Wall., 259) as the date of the assured possession by the United States, as determining the national character of the inhabitants of that city, (6th May, 1862,) was certainly the earliest date which could properly be assigned as that of assured possession by the United States for any purpose.
That, in fact, the time necessary to establish the permanence and stability of possession, by the capturing belligerent, should fairly and properly be left, within reasonable limits, to his own determination, and that the date of 1st June, 1862, fixed by the President of the United States by his proclamation of 12th May, (12 Stat, at L., 1263, 1264,) for the termination of the blockade, was within reasonable limits under the rules of international law; and that that date (1st June) should be considered the lawful and proper termination of the blockade.
That, at the date of the capture of the Circassian, the city of New Orleans, though in the actual occupancy of the United States forces, had neither capitulated nor surrendered, but was still an enemy’s city, deserted for the time by its garrison, but held only by an insignificant force, and what its chief civic officer, still avowing the adherence of the city to the confederate cause, called “the power of brutal-force, not by choice or consent of its inhabitants.” (See letter of the mayor of New Orleans to Flag-officer Farragut, 4 Reb. Rec, doc. 523, 524; also, 2d Wallace, 141 n; and Barton’s Butler in New Orleans, 282, 342.) That the military occupation of the city of New Orleans by the United States could not be extended by construction beyond the lines of actual military occupation, and that the city of New Orleans was not conterminous with the port of New Orleans as established by the statutes of the United States, (9 Stat, at L. 458;) but that the port which had been blockaded embraced territory outside the city, and not within the lines of actual military occupation. That such occupation of a portion only [Page 147] of the port could not be deemed, of itself, a termination of the blockade of the port.
That the collection district of which New Orleans was the sole port of entry, included the entire extent of the navigation of the Mississippi River and its tributaries, covering thousands of miles of navigation, and large cities situated upon that river and its tributaries, (2 Stat. at L., 252; 4 id., 480.) That a large extent of the country included within this district, and many important ports and towns within it, were still in the undisturbed control and occupancy of the enemy. That the blockade of New Orleans was in effect the blockade of the Mississippi River, and that until the United States were in Complete and assured possession of all the mouths of the river as well as the entire port of New Orleans, the imperfect and perhaps transient occupation of the city of New Orleans was not to be taken as terminating the blockade.
That so far as the Circassian herself and her officers were concerned, sailing with the direct purpose and destination of violating the blockade, and without knowledge or notice either to them or their captors of any change of occupation of New Orleans, such an accidental, technical, and artificial objection to the rightfulness of her capture should not be allowed to change the character of a capture otherwise lawful, and convert it into an unlawful capture, without strict and conclusive proof of the facts relied on so to change the character of the capture.
That, as to the claim of the insurance companies, (No. 444,) they had no standing before the commission in respect of the larger part of the cargo insured by them, the same having been the property of French merchants, not subjects of Her Britannic Majesty. That, by the terms of the treaty, jurisdiction is given to the commission only of claims “growing out of injuries to the persons and property of British subjects.”
That the gist of the injury here complained of was the wrongful capture of the Circassian and her cargo, the subsequent condemnation and sale being merely incidents of the capture in the course of the adjudication by the tribunals of the United States, as to its lawfulness, merely for the purpose of determining whether the capture should be ultimately adopted as the act of the United States. That, when captured, this part of the cargo was not the property of the subjects of Her Britannic Majesty. That the abandonment by the insured to the insurers after capture, the acceptance of such abandonment by the insurers, and payment as for a total loss, simply operated as a transfer to the insurers of the rights of the assured in respect of the capture; and that the insurers stood merely as subrogated to the rights of the owners at the time of the capture, and as their equitable assignees. That such transfer by operation of law gave to the insurers as equitable assignees no better standing before the commission than they would have in case of a claim for any other injuries to the persons or property of individuals not subjects of Her Britannic Majesty, but who had assigned their claim against the United States’ for such injuries to a British subject. That so far, therefore, [Page 148] as the property of these “French merchants” on board the Circassian was concerned, no right of reclamation against the United States under the treaty existed in the claimants.
The commission (Mr. Commissioner Frazer dissenting) made awards in favor of all the claimants. To the claimants in No. 432, the sum of $71,428, in No. 433, the sum of $20,450, and in 444 the sum of $133,296. I am advised that these respective sums in Nos. 432 and 444 were taken by the commission as the actual proceeds of the sales of the vessel and cargo, respectively, reduced from United States currency at its value at the date of sale to a gold basis, and without the allowance of any interest. The award in No. 444 covered as well the proceeds of the cargo belonging to the French merchants as the portions owned by British subjects.
Mr. Commissioner Frazer read a dissenting opinion, which will be found in the Appendix N.
The schooner Jane Campbell; George Campbell, claimant, No. 453.
This vessel was captured by a vessel of the United States blockading squadron in December, 1861, off the port of Beaufort, N. C. She was taken into the port of New York and there libelled in the United States district court. That court made a decree awarding restitution of the vessel and certifying probable cause of capture, but finding upon the evidence that the captors had been guilty of unjustifiable conduct toward the crew and cargo and stores of the vessel in the matters hereinafter named, ordered a reference to prize commissioners to ascertain and report to the court the damages sustained in consequence of such alleged misconduct. (The case is reported in Blatchford’s Prize Cases, 107, 130.) Under this order no proofs were offered by the claimants in the district court, nor any further proceedings had as to such alleged damages; and no appeal was taken from the decree of the district court.
The proofs in the prize court were not put in evidence before the commission, but the claimant rested the case here on his own deposition taken before the commission.
From the testimony of the claimant himself, it appeared that he was, down to August, 1861, a resident of Petersburgh, Va.; that the vessel was of American build and register, and was bought by him in July, 1861, in Washington, N.C., a blockaded port of the enemy. He bought her for the alleged purpose of taking his family from North Carolina to Liverpool; and in August, 1861, took her out through the blockade, and subsequently caused her to be registered as a British vessel. The district court found, upon the proofs before it, that the vessel when captured was apparently approaching the blockaded port of Beaufort, N. C., with intention to enter it. The claimant alleged in his memorial, and stated in his deposition, that he was on a voyage from Liverpool to Havana; that he was compelled by stress of weather and injuries received to seek [Page 149] assistance off the coast of North Carolina, and approached the blockading fleet for that purpose, making known his condition, but his vessel was thereupon seized and sent in for libel. The memorial also alleged, and the prize court found upon the evidence before it, that on the capture of the vessel the claimant, who’ was on board of her, was, with some of the ship’s company, taken from the schooner, placed on board a United States vessel, and carried to Fortress Monroe and there landed, while the vessel, with her captain and the remainder of her cargo, was taken to New York, and that the prize crew, while on board, broke open the hatches and the store-room and appropriated portions of the cargo and stores. The memorial claimed damages for the detention of the vessel and the injuries to the cargo and stores, £3,260, besides interest.
The claimant assigned in his memorial, and in his deposition, as the reason of his omission to make proof of his damages in the district court, and to appeal to the Supreme Court, that he was informed by the assistant district attorney of the United States that if he persisted in the prosecution of his claim for damages, the United States would appeal from the judgment of restitution rendered by the district court; and that knowing that this course would probably keep his property locked up for years, and not being in a position to bear such a loss, he took away the vessel and cargo without any further prosecution of his claim for damages.
On the part of the United States it was contended that the purchase of the vessel by the claimant within a blockaded port of the enemy, she being at the time an enemy’s vessel, and the claimant at the time of the purchase an enemy by domicile, and the subsequent taking her out through the blockade, followed by change of domicile of the owner and of registry of the vessel, did not change the character of the vessel from an enemy to a neutral. That the purchase of a private merchant-ship of the enemy by a neutral in time of war, when made in a neutral port, if not per se illegal, is always liable to great suspicion, and demands proof of good faith and of payment of full consideration. (3 Phill., 607.) That such sale when made in a blockaded port of the enemy was absolutely void; and that if the facts of this pretended sale had been made to appear in the prize court, the vessel must there have been condemned as enemy’s property. That the claimant had full opportunity to make proof and receive an award for his alleged damages in the prize court; and that having voluntarily abandoned the pursuit of his remedy there, he could not now be heard to make reclamation before the commission. That the reason alleged by him for his omission to prosecute his claim for damages in the prize court, made his case no better. That the law-officer of the United States had an undisputed right to say to the claimant, as he did in effect: “If you choose to claim damages of the United States I shall take an appeal and test the question of the right of condemnation in the appellate court; but if you are willing to take the vessel without claim of damages I will waive my [Page 150] right of appeal, and allow yon to depart with the vessel and cargo.” That the claimant’s abandonment of the right thus given him to make proof in regard to the misconduct of the captors rather than have the question of condemnation reviewed on appeal, was clearly “an acknowledgment of the justice of the sentence.” That by the claimant’s omission to produce before this commission the testimony taken in the prize court, he was debarred from alleging that the evidence in that court was insufficient to sustain the decree certifying probable cause of capture.
The commission unanimously disallowed the claim.
6. Claims for damages by reason of the alleged unlawful warning off of vessels from coasts of the States in rebellion by United States vessels of war.
These claims were three in number—that of Benjamin Whitworth and others, owners of the ship Boyne, No. 216; that of Andrew Ewing Byrne and others, owners of the ship Monmouth, No. 315; and that of Matthew Isaac Wilson, owner of the bark Hilja, No. 467.
The Boyne (No. 216) sailed from Fleetwood, Lancashire, England, on the 25th March, 1861, with a cargo of coals for Savannah, Georgia. On the 11th May, when near the entrance of the harbor of Charleston, S. C., she was boarded by an officer of the United States steam-frigate Niagara, who made this entry upon her register:
Warned off the whole coast of the South by the United States steamer Niagara, May 11, 1861. Edward E. Potter, lieutenant, United States Navy.
In consequence of this warning she abandoned her voyage to Savannah, and went to New York, where it was alleged that she disposed of the cargo of coal at a rate much less than it would have commanded in Savannah, and took a homeward freight from New York of much less value than she would have secured from Savannah. In fact, at the date of the warning no sufficient blockade had been instituted at Savannah or at any other port south of Charleston; the actual blockade of Savannah not having commenced until the 28th May. The memorial claimed damages by reason of loss on outward cargo, and on return-freight below that which she would have earned from Savannah, and by detention of the vessel, £6,46013s. 0d., besides interest.
The Monmouth (No. 315) sailed from Liverpool in March, 1861, with a cargo of salt, under written instructions to proceed to Charleston and deliver vessel and cargo to consignees there; and if that port should be found blockaded, then to go to Savannah; and if he failed in getting a cotton freight at either Charleston or Savannah, then to go to St. Stephen, New Brunswick, and load with a cargo of deals for the return voyage. On the 12th May she arrived off the harbor of Charleston; [Page 151] was boarded by an officer of the blockading vessel Niagara, and the following entry made upon her register:
Boarded; informed of the blockade; and warned off the coast of all the Southern States by the United States steamship Niagara, May 12, 1861.
The master thereupon abandoned his voyage to Charleston and Savannah, and went to St. Stephen, New Brunswick, where he disposed of his cargo of salt and took his return cargo of deals. The memorial claimed damages by losses on her cargo of salt and of return freight, short of what she would have received from Savannah; and costs, and charges, and delay, to which she was necessarily subjected by her change of destination, £10,572 10s. 0d.
The Hilja (No. 467) sailed from Liverpool on the 25th March, 1861, in ballast, for Charleston; the memorial alleging that she intended to load, on freight at that port or at Savannah, a return cargo of cotton for Liverpool. She was boarded by an officer of the United States steamship Niagara off Charleston Harbor, on the 12th May, and a warning entered upon her register, substantially the same as in the case of the Monmouth. The memorial alleged that the captain of the Hilja, having an alternative destination to Savannah, was debarred from proceeding to that port by this warning; that she thereupon proceeded to Pugwash, but gave no information as to her earnings by her return freight. Damages were claimed to the amount of £6,101 3s. 7d., besides interest—the amount of freight which, it was alleged, the vessel would have earned by a return cargo of cotton from Charleston or Savannah.
The sailing orders of the Hilja were not put in evidence nor accounted for, though it appeared that she sailed under written orders; nor was any evidence adduced as to her alternative destination to Savannah, except that of the claimant himself, examined on notice, who, after many evasive and contradictory answers on cross-examination as to the destination of the vessel, finally summed up his evidence in this regard by saying: “I think I mentioned to him verbally that if freights were better at Savannah he was to go there.” The claimant also testified that he had, through Mr. A. E. Byrne, (claimant in No. 315,) had correspondence with the British foreign office in respect to this warning, off of his vessel, and that he had had like correspondence with Her Majesty’s consul at Charleston, through Messrs. Robert Muir & Co., and that there had also been correspondence between Muir & Co. and himself, and between Henderson, the master of the vessel, (since dead,) and himself; but none of this correspondence was either produced or accounted for. No proof was made as to the avails of the return freight from Pugwash, except the general statement of the claimant in his deposition that “the whole voyage brought in a loss;” and on cross-examination the claimant, when questioned as to his transactions in connection with violating the blockade during the war, and furnishing [Page 152] aid to the confederate government, declined to answer all” such questions.
It appeared that an actual blockade of the port of Charleston was established by the presence of a sufficient blockading force, at the dates of the respective warnings of the three vessels.
The three cases were argued and submitted together.
On the part of the United States, it was contended that the warning entered upon the register of these vessels, respectively, so far as applicable to any unblockaded ports, was without authority of the United States, a clear error on the part of the officer giving the warning, insufficient to preclude the further voyage of the vessels warned to any unblockaded port, and had never been adopted or ratified by the United States; that the case rested on the voluntary abandonment, by the masters of the Monmouth and the Boyne, respectively, of their alternative voyage to Savannah, upon an incorrect warning, unduly given by an unauthorized officer of the United States, and that for such loss no reclamation lay against the United States.
In the case of the Hilja, it was maintained on the part of the United States that the proof showed no alternative destination to Savannah; that the vessel was merely stopped from entering the blockaded port of Charleston, to which she was destined, and that no loss whatever was shown to have accrued to her, except that caused by her being prevented from entering that port, and that no proof was made of actual loss even in this respect; that the non-production, by the claimant Wilson, of the correspondence with the British foreign office, and with the British consul at Charleston, as well as his own correspondence with his captain, Henderson, and his agents at Charleston, Muir & Co., sufficiently indicated that the claimant then put his claim for compensation solely on the ground of the illegality or insufficiency of the blockade of Charleston, and that the pretended alternative destination to Savannah was an afterthought, borrowed from the cases of the Monmouth and the Boyne; that his own testimony, on which he rested the case, was upon its face unworthy of credit.
The counsel for the United States also claimed that in the case of an award of damages in any of these cases, the anticipated earnings by freights from Savannah, at high rates, could not be taken into account as elements of the award. That such anticipated earnings were speculative and illusory; that the evidence showed that the market at Savannah, in respect both of sales of the outward cargoes, and of the rate of freights, was exceedingly irregular and violent in its fluctuations, and in effect a gaming market. That it could not be assumed that the vessels could have secured return cargoes at Savannah in season to leave within the time limited after the establishment of the blockade there; nor that they could have secured such rates of freight as were claimed in the respective cases; and that these claims were of substantially the same nature of speculative and uncertain prospective profits, which [Page 153] were rejected by the tribunal at Geneva, in the case of the claims for anticipated earnings and profits of captured vessels, claimed before that tribunal.
The commission in the case of the Boyne, (No. 216,) unanimously made an award in favor of the claimants for $32,553.
In the case of the Monmouth, (No. 315,) they made an award in favor of the claimants for $40,843; Mr. Commissioner Frazer dissenting on the question of amount.
In the case of the Hilja, (No. 467,) the claim was disallowed; Mr. Commissioner Gurney dissenting.
On the general question involved in these cases Mr. Commissioner Frazer read an opinion, which will be found in the Appendix O.
7. Miscellaneous cases.
In the case of Alfred Raoul Walker, No. 13, the claimant, a minor, by his guardian, alleged that he was born in Charleston, S. C, his father being at the time of his birth a British subject and resident at Charleston, as Her Britannic Majesty’s vice-consul for that port and for the State of South Carolina; that by the will of Mrs. Laurens, the claimant, in May, 1858, became entitled to a legacy of $20,000, to be paid to him on coming of age, and the interest to be applied to his support and education. That the executors of Mrs. Laurens’s will having filed a bill in the court of equity in the State of South Carolina, for the purpose of obtaining the protection of the court in respect to the trusts created by the will, made the claimant a party to the bill, and placed the moneys belonging to the claimant under the will in the receivership and under the control of the court; and that, under the protection of the court, the moneys so belonging to the claimant were invested in bonds of the Confederate States during the war. That “by reason of such investment for the purposes of carrying on civil war, and by reason of such civil war and rebellion, and by the act of the Government of the United States in suppressing the said rebellion and restoring the authority of the Federal Government,” the claimant’s moneys were totally and irrecoverably lost. That the court in question was a tribunal of competent power and jurisdiction to direct the investment and charge of such moneys; and that “the civil war, through the act of the Government of the United States, destroyed the investments.” The claimant claimed an award for $20,000, besides interest.
A demurrer was interposed on the part of the United States to the memorial, specifying, among other grounds, that the claimant was, by the laws of the United States, a citizen of the United States, and so could have no standing as a British subject under the treaty; that the alleged wrongs were perpetrated, if at all, by the pretended courts and authorities of the so-called State of South Carolina, while not acting under or by the authority of the Constitution, laws, or Government of [Page 154] the United States, but while in rebellion against the United States and at war with them, and that for such acts the United States were not liable; that the claimant alleged that the court of South Carolina was a court having jurisdiction of the subject-matter and of the person of the claimant, and exercising such jurisdiction; and that the claimant, by his guardian, voluntarily submitted himself to such jurisdiction; that he did not allege the order or decree of the court to have been fraudulently made, or its treatment of the claimant’s property to have been exceptional; and that for such action of a judicial tribunal, however erroneous; no claim could lie under the treaty. That the allegation that the civil war, through the act of the Government of the United States, “destroyed the investments of the claimant,” formed no ground of claim against the United States.
The case was submitted without argument, and the claim was unanimously disallowed.
In the case of Edward Alfred Barrett vs. The United States, No. 18, the claimant, resident in England during the war, alleged that in October, 1864, he purchased for a valuable consideration and was still the possessor and absolute owner of a certain “cotton loan bond” of the Confederate States of America, by which the Confederate States bound themselves to pay to the bearer £200 sterling, with interest at 7 per cent, per annum, semi-annually, on the 1st day of March and the 1st day of September in each year, until redemption of the principal at par. That the Government of the United States, in the year 1865, “seized all the public assets of the said Confederate States and especially a very large quantity of cotton, hypothecated by the said Confederate States government for payment of the said cotton loan, and thus prevented those States from paying their cotton-loan bondholders.” That in consequence of such seizure by the Government of the United States, the principal of said bond remained unpaid, and no interest had been paid thereon from the 1st day of March, 1865. The claimant claimed damages £200 besides interest.
The memorial came to the hands of the agent of the United States on the 14th November, 1871. Though insignificant in amount, it involved a principal of the highest importance; and it was understood that it was presented as one of a large number of claims of the same character already in the hands of Her Majesty’s agent, and involving claims against the United States on account of debts of the late so-called Confederate States to very large amounts. The agent of the United States, believing the claim to be neither within the letter or spirit of the treaty, and to be one which ought not to have been presented by Her Majesty’s government to the commission, immediately sent to the Secretary of State of the United States a copy of the memorial, with the following letter: [Page 155]
Office of the Agent of the
Before the Mixed Commission on American and British Claims,
No. 703 Fifteenth Street, Washington, D. C., November 15, 1871.
Sir: I have the honor to submit herewith a copy of the memorial of Edward Alfred Barrett, yesterday filed with the Washington commission under the British treaty.
You will notice that it is based solely on an alleged liability of the United States for payment of the cotton loan (so-called) of the late Confederate States, (so called.) It is the first claim of this character which has been presented to the commission.
Believing such claims to be entirely outside the submission made by the twelfth article of the treaty, and that the Government of the United States never has consented to submit to arbitration any question of their liability for debts of this character, and that it is not within my province to discuss or consent to the discussion of the question of such liability before the commission, I beg to submit the case to you for specific instruction.
The questions involved seem to pertain more directly to the diplomatic relations of the two countries than to any mere question of legal practice or construction.
Very respectfully, your obedient servant,
ROB: S. HALE,
Agent and Counsel of the United States.
Hon. Hamilton Fish,
Secretary of State.
I am advised that the Government of the United States thereupon immediately, through Mr. Schenck, the minister of the United States at the court of St. James, protested against the presentation of such a claim as not within the terms of submission by the treaty, and requested of the British government that the claim be withdrawn. This request not having been complied with, the agent of the United States, under specific instructions from the Secretary of State on the 9th December, 1871, filed with the commission a motion to dismiss the memorial for want of jurisdiction, as stating no case for a claim against the United States within the intent of the treaty. On this motion the agent of the United States, on the 13th December, 1871, submitted a printed argument, as follows:
before the mixed commission on american and british claims.
|Edward Alfred Barrett||}||No. 18.|
|The United States.|
Argument for the United States on motion to dismiss.
By the twelfth article of the treaty the claims against the United States submitted to the adjudication of the commission are those of subjects of Her Britannic Majesty, “arising out of acts committed against the persons or property of subjects of Her Britannic Majesty “during the time limited by that article.
This language is plain and unambiguous. It limits the claims to those technically known as “torts,” and those “torts” committed against the “persons or property-” of the claimants.
It could not be contended that the claims so submitted would include a claim on contract against the United States, though founded directly on a contract duly executed by an authorized officer of that Government, and plainly violated by that Government.
Much less can it be held to include a contract executed by and in the name of an [Page 156] insurrectionary organization, in violation of the Constitution and laws of the United States, seeking the subversion of that Government, levying war upon it, and finally suppressed by its power.
Notwithstanding the specious attempt to disguise the true nature of this claim under an allegation of the destruction by the United States, in war, of property “hypothecated” by the so-called Confederate States for the security of their debts, it is really neither more nor less than a claim to hold the United States liable for the debts of those lately in rebellion against them, contracted in the very course of such rebellion, in aid of it, and from which it drew its chief support.
To believe for a moment that the United States ever intended to submit such a question to arbitration would be, at the same time, to do violence to the language of the treaty, and to falsify the history of that Government by imputing to it a pusillanimity wholly unwarranted by anything in its past career or present condition. It would be to believe that the United States have deliberately signified their willingness, at the award of this commission, to pay debts contracted by their defeated enemies, for the sole purpose of the dismemberment of their Government and the destruction of their liberties; debts held in the deepest abhorrence by the unanimous sentiment of their loyal people, and debts, the assumption or payment of which, in any form, by the United States, or anyone of their constituent States, has been prohibited by solemn constitutional enactment, by that fundamental law to which all treaties, as well as all statutes; are subject.
When the Government and people of the United States shall acknowledge that in their recent successful struggle with rebellion they were wholly in the wrong, and the rebels wholly in the right; when they shall determine to compensate the rebels themselves for their losses in person and property by the war, to pension their widows and orphans, and to repudiate the debt of the Federal Government contracted for the suppression of the rebellion; then, and not till then, will they consider the question of paying the mercenary foreign subscribers to the rebel loans, more criminal in their eyes, or at least sharing more of their abhorrence, than any other participants in the gigantic crime.
The language of the treaty itself is believed to be abundantly specific in excluding claims of the character of that in question. If any ambiguity could be found in that language, it would be fully removed by reference to the protocols of conference of the Joint High Commissioners, and to facts of universal cognizance in connection with them.
By the 36th protocol, under the head of “Articles XII to XVII,” it appears that the American commissioners, when invited by their British colleagues to include within the terms of the treaty another class of claims by Her Majesty’s subjects against the United States, declined so to do, saying, “That, in their view, the subject was not embraced in the scope of the correspondence between Sir Edward Thornton and Mr. Fish under either of the letters of the former; and that they did not feel justified in entering upon the consideration of any class of claims not contemplated at the time of the creation of the present commission,” &c.
Referring to the correspondence between Sir Edward Thornton and Mr. Fish, named in the protocol, it will be found that the first mention of or reference to the claims covered by the twelfth article, is contained in the letter of Sir Edward to Mr. Fish, under the date of February 1, 1871, and that in that letter he designates them as claims “arising out of acts committed,” &c, the same language which was subsequently copied into the treaty, and, with the addition, by way of giving greater point and accuracy, of the further words, “against the persons or property of subjects of Her Britannic Majesty.”
It must be borne in mind that at the time of this correspondence, as well as at the time of the conclusion and ratification of the treaty, the Constitution of the United States contained an express prohibition of the assumption or payment of these debts by the United States or by any State. That every officer of the United States, executive, [Page 157] legislative, and judicial, was thus bound by the supreme law of the land and by his oath of office to treat as utterly null any provision of any treaty or statute in contravention of that constitutional prohibition, under penalty of impeachment or its equivalent. That the existence of this constitutional provision was well known, not only to the Secretary of State, the Commissioners, the Chief Executive, and the Senate of the United States, all parties on the part of the United States to the treaty or to this preliminary correspondence, but was equally well known to the British minister and to the British High Commissioners. It cannot, therefore, be for a moment believed that the American Secretary, in his acceptance of the proposition of Sir Edward by his letter of February 3—the President of the United States, in directing that acceptance—the American members of the Joint High Commission in negotiating and concluding the treaty—the President in ratifying, or the Senate of the United States in advising and consenting to the same—ever intended to embody in it a provision which should violate the fundamental law of the nation, or that the ministers and commissioners of Her Britanic Majesty so understood them to intend.
In case, too, of any possible ambiguity, it must be borne in mind that this language first emanated from Her Majesty’s minister, and that by the settled rules of diplomatic as well as legal construction, the party employing ambiguous language is debarred from any benefit of the ambiguity.
But the United States insist that the language is not ambiguous; that it is plain and explicit, and that within it a claim of this character has no place among the matters submitted by the treaty to this commission for its decision.
The undersigned is warranted in saying that the words “arising out of acts committed,” were deliberately and intentionally inserted by Sir Edward in his letter of 1st February, repeated by Secretary Fish in his letter of 3d February, and copied and elaborated by the Joint High Commissioners in the twelfth article of the treaty, for the express purpose of excluding all possible claims of the nature of the debts of the States lately in rebellion, singly or under any attempted and abortive organization.
If the counsel for the United States deemed himself at liberty to discuss the merits of the claim here presented, as within the jurisdiction of the commission to decide, the answer to the claim, on its merits, would be palpable, self-suggesting, and conclusive.
But he expressly disclaims all intention of such discussion, and asks the dismission of the claim on the ground specified in his motion.
ROB: S. HALE,
Agent and Counsel of the United States, &c.
On the 14th December, 1871, the commission made and filed their decision, unanimously dismissing the claim, as follows:
Office of the Mixed Commission
on British and American claims,
Under the Treaty of May 8, 1871,
Washington, D. C., December 14, 1871.
|Edward Alfred Barrett||}||No. 18.|
|The United States.|
The commission is of opinion that the United States is not liable for the payment of debts contracted by the rebel authorities.
The rebellion was a struggle against the United States for the establishment in a portion of the country belonging to the United States of a new state in the family of nations, and it failed. Persons contracting with the so-called Confederate States voluntarily assumed the risk of such failure and accepted its obligations, subject to the paramount rights of the parent state by force to crush the rebel organization and seize all its assets and property, whether hypothecated by it or not to its creditors. Such belligerent right of the United States to seize and hold was not subordinate to the rights [Page 158] of creditors of the rebel organization created by contract with the latter; and when such seizure was actually accomplished it put an end to any claim to the property which the creditor otherwise might have had.
We are therefore of opinion that after such seizure the claimant had no interest in the property, and the claim is dismissed.
JAS. S. FRAZER,
In view of the attitude taken by the British government upon the presentation of the claim for so-called indirect damages in the “Case” of the United States before the tribunal of arbitration at Geneva, and of the intense feeling manifested by the British nation through the press and in parliament and elsewhere on that subject, I have deemed this case worthy of specific and full report. The case involved in principle the question of the liability of the United States for the entire debt of the late Confederate States. If within the jurisdiction of the commission, if was plain that the United States might, by the decision of the commission, be held liable for so much of that debt as was held at the termination of the war by British subjects, the amount of which is of course a matter of conjecture merely, but which doubtless amounted to many hundred millions of dollars. It is impossible to believe that the Government of the United States could ever have designed to submit the question of such liability to arbitration; and it is certain that the people of the United States would never have consented to the submission in any form of such a question to arbitration, or to any measures of which the possible result might be to charge them with the payment of the debt of the Confederate Stated or any part of such debt. It is difficult to see why the presentation of such a claim to the commission, and the claim made by such presentation that the commission had jurisdiction under the treaty to make an award against the United States on account of this vast debt of their late enemies, the payment of which in any form had been prohibited by constitutional enactment, might not naturally and properly have produced among the people of the United States quite as intense an excitement, and quite as earnest and vigorous demonstrations of hostility to such submission as were manifested by the people of Great Britain in respect of the claims for indirect damages at Geneva. It is, however, worthy of note that during its pendency before the commission, the fact of the presentation of such a claim was not even in the public press or in Congress or in any other manner brought to popular notice, and no angry demonstrations were anywhere made in relation to it.
The disposition of the case before the commission, both in substance and form, seems to have been entirely satisfactory to both nations; and an analogy may perhaps be noted between the manner in which the commission disposed of this claim, and that subsequently adopted by [Page 159] the tribunal at Geneva in respect to the claims for the so-called indirect damages.
In the case of William Adam, (No. 72,) the claimant, a British subject domiciled in England, alleged that he was, in 1862, the owner of certain bonds of a railroad company within the United States, amounting to $5,000 principal, with interest, payable half yearly, at six per cent, per annum, the interest upon which had been regularly paid in specie up to the 31st December, 1861. That in the year 1862, the Congress of the United States passed a law making paper money a legal tender without any protection to pre-existing contracts; and that immediately after that law the paper money of the United States became depreciated in value, and the claimant was thenceforward compelled to receive payment of his interest in such depreciated currency, and that the bonds themselves and the prospective interest to become due thereon, had likewise become depreciated in consequence of the same legislation. That the Supreme Court of the United States had, in 1871, adjudged the act of 1862 valid in its application to pre-existing debts. He submitted with his memorial a computation of his losses in the premises, and claimed’ damages $3,309, besides interest. A demurrer was interposed to the memorial on behalf of the United States, on the ground that it stated no case within the jurisdiction of the commission, and no facts showing any liability for compensation to the claimant.
The commission unanimously made an award as follows:
The commissioners are of opinion that the matters alleged in the memorial do not constitute the basis of any valid claim against the United States. The claim is therefore disallowed.
In the case of Joseph W. Roach, No. 154, the claim was for the value of the brigantine Madeira and her cargo, which was alleged to have been, on the 3d October, 1863, run into by the Clyde, a steamer transport owned by the United States, and the vessel and her cargo thereby sunk and totally lost. That the collision took place in the course of a lawful voyage of the Madeira from the port of Saint John’s, Porto Rico, to the port of New York; and that the Clyde was then upon a voyage for the Government of the United States, and under the charge of officers of that Government. That the collision happened entirely through the neglect and default of the officers of the Clyde. The memorial claimed damages $14,969.50, besides interest. The proofs filed sustained the allegations in the memorial as to the loss of the vessel and cargo by the default of the officers of the Clyde, and showed that the matter had been investigated by the claims commission of the War Department, and a report was made by that commission in January, 1867, assessing the damages of the claimant at $11,373.98, besides interest. The only question raised in the case was as to the amount of damages to be allowed. The commission unanimously awarded the claimant $14,081.[Page 160]
Claim of William Scott Millar, No. 157. The memorial in this case alleged that the claimant, a British subject domiciled at New Orleans, was, on the 25th September, 1864, the owner of 330 bales of cotton, then worth $223,253. That on that day the cotton was unlawfully seized and taken from his possession by a supervising special agent of the United States Treasury Department, and was proceeded against for forfeiture to the United States, by libel of information filed in the United States district court for the district of Louisiana. That the claimant appeared in that suit, and claimed restitution of the cotton, but that it was detained till December, 1864, when it was surrendered to him upon the execution of a bond by him with sureties to the United States, conditioned to abide the decree of the court upon the libel. That between the date of the seizure and the date of the release the cotton largely depreciated in value, and the claimant was also compelled to pay large sums by way of costs. Damages were claimed by reason of the depreciation in value and the costs paid, $90,145, besides interest.
The proofs showed that the cotton in question was purchased at points within the confederate military lines in the State of Mississippi, under alleged permits issued by a special agent of the United States Treasury Department, and was seized on its way through those military lines and into the territory held by the United States forces. The district court dismissed the libel for confiscation with costs. No claim for damages by reason of the seizure appeared to have been interposed by the claimant in that court, and no damages were there awarded him.
On the part of the claimant it was contended that the decree of acquittal by the district court without certificate of probable cause conclusively established the seizure as wrongful. That the United States were responsible for the seizure as made by an authorized agent of the Treasury Department in the line of his duty and under color of acts of Congress. And that the act of the agent in making the seizure had been expressly adopted by the Government by instituting proceedings for the forfeiture of the property. The counsel for the claimant cited Gelston vs. White, (3 Wheat, 246, and cases there cited;) The Appollon, (9 Wheat., 362;) Hall vs. Warning, (2 McLean, 332, and cases there cited;) The Caledonian, (4 Wheat., 100;) Taylor vs. United States, (3 How., 197.)
On the part of the United States it was maintained that the proofs conclusively showed the purchase of the property by the claimant within the enemy’s lines, and his attempted transportation of the same through those lines into the Federal jurisdiction, to have been illegal and not warranted by his permits; that the cotton should have been condemned by the district court; that the decree of that court was not conclusive against the United States upon the claim now preferred for damages, and that the commission were entitled to look into the proofs and adjudicate upon the question of the liability of the United States for damages as an original question; that the claimant might have presented and prosecuted his claim for damages against the United [Page 161] States in the district court in the action brought against him for forfeiture, and might there have recovered his damages if lawfully entitled to the same and that until he had exhausted his remedy before the tribunals of the United States, he had no standing to make reclamation before the commission. The commission unanimously disallowed the claim.
Amos Bigland’s claim, No. 199, was for damages for the detention of the British steamship Tubal Cain, in the port of “New York, from the 8th April to the 16th July, 1863, one hundred days; and damages were claimed, $38,378, besides interest. The claimant was a British merchant domiciled in the city of New York. He chartered the Tubal Cain to one Mora for a voyage to Matamoras via Havana and back to New York. She was loaded by the charterer, and on the 8th April, being ready to sail, clearance was refused by the custom-house authorities, and she was seized by the United States authorities, the collector of the port and the military commander of the department concurring in the seizure, on the charge that she was undertaking to carry on an illicit voyage between New York and the blockaded ports of Texas, and was carrying out contraband of war destined for the confederacy, and was also carrying passengers engaged in contraband trade with the enemy, one of them being an agent of the Confederate States government engaged in the purchase of munitions of war. Mr. Edwards Pierrepont, of New York, was commissioned by the War Department to examine and report upon the case. On the 26th May he made his report, sustaining in substance the charges named as to two passengers, Blum and Sutton, whom he found having contraband goods on board intended for the Texas trade, and engaged in the service of the enemy; but reported that neither the owner or charterer of the vessel had knowledge that any of the goods shipped were contraband of war or were intended for illegal trade. He further reported that there was reasonable cause for detaining the vessel, but recommended that the vessel be discharged from custody, and the goods be delivered up to the owners on their application and receipt for the same. The report was approved by the Solicitor of the War Department, and the vessel was surrendered on the 16th July and her cargo returned to the shippers, with the exception of the goods of Blum and Sutton.
On the part of the United States it was contended that the refusal to clear the vessel, her detention for examination, and the unlading of her cargo for that purpose, were lawful acts; that they were done under the authority of the regular custom-house officials of New York, and that the fact that those officials were aided by the military authorities in no respect affected the character of the transaction; that the facts of the case were such as in a prize court would have certainly justified the capture as one by “probable cause “if the vessel had been captured on the high seas and brought into port and libelled as prize; that the same [Page 162] principles were to be applied in the consideration of this case of detention, and that no liability existed against the United States on account of it.
The commission unanimously made an award in favor of the claimant for $4,800. I am advised that this award was made in respect only of the detention of the vessel, between the date of Mr. Pierrepont’s report and her final discharge, the commission holding that detention unreasonable.
In the case of Thomas Grant, No. 211, the claimant, in addition to his claim for tobacco, captured in running the blockade from Wilmington, before reported, claimed $7,000 damages for the alleged breaking up of his lawful business as a manufacturer of tobacco by the “terrific shelling of the city of Petersburg,” by the United States forces in 1864 and 1865, “which was so violent at times, during the period of ten months, that no business could be regularly and successfully conducted within the city limits.” He also claimed the further sum of $1,440 for his interest in a quantity of tobacco, which he alleged was lost in South Carolina while in the course of transportation to remove it out of the reach of the Federal Army under General Sherman. It was not alleged that the loss was caused by the United States forces except as the remote cause of the removal. On demurrer the commission unanimously disallowed the claim.
In the case of William Cleary, No. 220, the claimant, among other claims set up in his memorial, claimed $5,000 damages for an alleged violent assault, wounding, and ill treatment committed upon him by a private soldier of the United States Army, at Savannah, in March, 1865, by which he alleged that his life was endangered and himself disabled for some months. No allegation or proof was made connecting any officer of the United States, or any other person except the assailant, with the alleged assault. The commission made an award in favor of the claimant in respect of property taken for the use of the United States, but gave nothing on account of the alleged assault.
In the case of Sheldon Lewis, No. 287, the claimant alleged that, in March, 1863, he was the owner of the bark Matilda A. Lewis, on which vessel was laden in that month a quantity of fowls destined for Havana. That the officers of the United States refused to permit the vessel to leave with the fowls, and took possession of them. That subsequently the consignee of the fowls in Havana brought suit against the vessel in the United States district court for the southern district of New York for the value of the fowls, and recovered judgment for $1,100, for which amount, with the additional sum of $600 costs expended by him, the claimant claimed an award.
It appeared from the evidence that, by order of the Secretary of the Treasury of 19th May, 1863, officers of the custom-houses of the United States were directed to refuse clearances for the exportation of “horses, [Page 163] mules, and live-stock,” and to cause the detention of all animals attempted to be so exported. That the fowls in question had been shipped by one Glas upon the vessel for Havana; that the customs officers in New York construed the order of the Secretary of the Treasury as covering fowls, refused to grant clearance for them, and ordered them to be relanded. The fowls were relanded and delivered to the shipper, and the charterer of the vessel having produced to Glas one of the triplicate bills of lading, Glas signed a memorandum on same, annulling the bill of lading. Meantime Glas had procured from the agent of the consignees at New York an advance of $700, on one of the triplicate bills of lading for the fowls. This fact was not disclosed to the charterer when the bill of lading was cancelled by Glas. The consignee subsequently brought suit against the vessel and recovered on the ground of his advance made to Glas upon the bill of lading, and that the surrender of the fowls by the charterer to Glas, and the cancelling of the bill of lading by Glas did not prejudice his rights, and that the order prohibiting the exportation of live-stock was unlawful, and that if lawful it was not intended to include fowls. (See report of the case Desvernine v. The Bark Matilda A. Lewis, 5 Blatchford’s C. C. R., 520 to 523.) In a like case, subsequently brought to the notice of the Secretary of the Treasury, and involving the construction of the order of 19th May, 1863, the Secretary held that the order did not cover poultry.
On the part of the United States it was contended that the construction placed by the custom-house officers upon the order of the Secretary of the Treasury was evidently an unjust and forced construction; that if application had been made at once to the Secretary of the Treasury, the decision of the customs-officers at New York would have been overruled, and that the United States were not responsible for the error of judgment of such subordinate officers till proper resort was had to some responsible and chief officer of the Government, whose decision upon the question might bind the Government. Also, that if the United States were liable for the wrongful acts of the customs-officers, the claimant was in no position to maintain this claim; that the charterer of his vessel had wrongfully allowed the fowls to be returned to Glas, the shipper, on his cancellation of one of the bills of lading, without calling in the others, upon one of which the advance of the consignees had already been made; that the owner of the vessel had therefore been made liable solely by the default of his charterer, by whose acts certainly the United States could not be prejudiced.
The commission made an award in favor of the claimant for $1,819: Mr. Commissioner Frazer dissenting.
Messrs. A. E. Campbell & Co., claimants in No. 290, claimed from the United States $25,881, besides interest, the alleged value of a cargo of sugar on board the brig John Welch, which brig was alleged to have been captured by the privateer Jeff. Davis, and carried into Charleston, S. C, where her cargo was sold, but the proceeds of the claimant’s portion [Page 164] of the same were held by the confederate government, to be refunded to the claimants. The memorial further alleged that, “in the month of February, 1865, the United States troops took military possession of Charleston, S. C, and seized the confederate treasury and all confederate property therein, and shortly afterwards seized and took possession of all property, whatsoever or wheresoever, belonging to or in the possession, custody or control of the said Confederate States, including the proceeds of the cargo above referred to.” The United States interposed a demurrer to the memorial. On the argument of the demurrer, Her Majesty’s counsel, on behalf of the claimant, urged that it was possible for the claimants, under the allegations of the petition, to make out a case of property taken by the United States, “by showing that the proceeds of their sugar were kept separate and distinct from the funds of the confederacy, and marked or noted as theirs, and thus remaining in specie were captured.” That in such case they might be entitled to recover. On this ground the demurrer was overruled by the commission. Subsequently the claimants having failed to make any proof of such capture of their property in specie, and appropriation of it by the United States, the claim was unanimously disallowed.
The case of Barron, Forbes & Co., No. 314. In this case the claimants alleged that in the year 1845 one Andres Castillero, a Mexican citizen, became the owner, under the mining laws of Mexico, of a valuable quicksilver mine in California, then a part of the Mexican territory, since known as the New Almaden mine That on the subsequent acquisition of California by the United States they were notified of Castillero’s title. That in 1846 and 1847 the claimants duly succeeded to the title of Castillero. That by the treaty of Guadalupe-Hidalgo, between the United States and Mexico, by which treaty Mexico surrendered California to the United States, the faith of the United States was pledged that property of every kind belonging to Mexicans should be “inviolably respected.” That in March, 1851, the Congress of the United States passed a law which in effect proceeded on the assumption that all unoccupied land in California was public property, and which allowed proof to be taken by alleged owners of the titles before commissioners appointed for that purpose, with the right of appeal to the United States courts, and finally to the Supreme Court of the United States; thus casting upon the claimants onerous burdens in the establishment of their lawful title. That this act was, in effect, a confiscation in favor of the. United States of all landed property in California, subject only to its being averted by such proofs; and was, “in its spirit and effect, a violation of the rights of property, and an infraction of the true intent and meaning of the said treaty.” That the claimants filed their claim before the commissioners in California on the 30th September, 1852, and that those commissioners, on the 8th January, 1856, affirmed the claim of the claimants as to a portion of the property, but rejected it as to the remainder, on the ground that their title under the alleged grant, as [Page 165] to the property in respect of which their claim was rejected, was inchoate and imperfect at the date of the treaty of Guadalupe-Hidalgo. That the United States appealed from, the decision of the commissioners to a tribunal, composed of the circuit and district judges of the United States sitting in California, under the statute; which tribunal, in 1857, issued an injunction restraining the claimants from further working the mine until the further order of the court. That this tribunal finally, on the 18th January, 1861, rendered a decree substantially confirming the decision of the original commissioners, establishing the title of the claimants to a part of the property and rejecting it as to a part. That from this judgment both the claimants and the United States appealed to the Supreme Court of the United States; which court, in the year 1863, rendered a final judgment reversing that part of the decree which established claimants’ title to a portion of the property, and dismissing claimants’ appeal as to the other portion of the decree, and remanding the cause with direction to dismiss the entire petition. The report of the case, in the Supreme Court, is found in the second volume of Black’s Reports, page 17, under the title of “The United States vs. Castillero.”
The memorial disclaimed all imputation of intentional wrong by the Supreme Court of the United States, but alleged that their final judgment was erroneous; and further alleged that, immediately after the decision of the Supreme Court, an order was issued by the President of the United States, to the United States marshal for California, directing that the memorialists be ejected from their property, and that it be placed in the possession “of an agent of the United States. That, “while thus under pressure and duress, and threatened with eviction from their property,” by the United States, the claimants gave a quitclaim of their interest in the entire property to a Pennsylvania corporation—the Quicksilver Mining Company—receiving for this conveyance the sum of $1,750,000, and that their grantees had since remained in possession of the mine, “undisturbed by any claim of the United States;” and had received, and still continued to enjoy, a revenue of about $1,000,000 per annum from the mine. It also alleged various acts of unfairness and oppression by the attorneys, agents, and officers of the United States during the pendency of the litigation in the lower courts, before the final appeal to the Supreme Court. The claimants claimed an award for about $16,000,000, besides interest. A demurrer was interposed to the memorial, on behalf of the United States, on the following grounds:
- The said memorial sets forth no acts committed against the property of the claimants within the time limited by the treaty for which the United States are responsible, or on account of which reclamation lies in favor of the claimants against the United States.
- The allegations in the memorial of the alleged injuries to the claimants’ rights by the passage of the law of 3d March, 1851, as alleged in paragraph 15 of the memorial; and by the alleged wrongful and oppressive acts of the United States and of their officers and agents in their opposition to the allowance of the claimants before the [Page 166] commissioners, as set forth in paragraph 20 of the memorial; by the appeal and other alleged unjust and oppressive proceedings set forth in paragraph 21, and by the proceedings set forth in paragraphs 22, 23, 24, 26, 27, 28, 29, 30, 31, and 32, show all of said transactions to have taken place before the 13th day of April, 1861; and thereby the said transactions are not the subjects of reclamation before this commission.
- The decision of the Supreme Court of the United States upon the claims of the memorialists in the year 1863, as set forth in paragraphs 33, 34, 35, and 36, of the memorial, and the alleged acts of the President of the United States in execution of the judgment of said court, as set forth in paragraph 37, do not constitute an act or acts against the persons or property of subjects of Her Britannic Majesty within the provisions of the twelfth article of the treaty, by occasion of which reclamation lies against the United States.
- The only acts alleged in the memorial as occurring within the time limited by the treaty are the judgment of the Supreme Court of the United States upon a cause duly and lawfully pending before them, and the proceedings in due course of law for the enforcement of execution upon the said judgment; the memorial distinctly negativing any allegation of fraud or willful injustice in the said court, no reclamation lies on behalf of the claimants before this commission by reason of such judgment, or the lawful proceedings in execution thereof. This commission has no jurisdiction to review the judgments of the regularly-constituted judicial tribunals of the United States or of Great Britain, at least in the absence, of allegations of fraud, corruption, or willful or intentional injustice or injury.
- The memorial shows (paragraph 39) that the claimants or their predecessors, before eviction from their said property under the said judgment, voluntarily sold and conveyed to another party, to wit, the Quicksilver Mining Company, all their rights in and to the premises in question; and that their said grantees have since remained in undisturbed possession of the property in question. The claimants, therefore, appear to have never been disturbed in the possession of their said alleged property; and no injury is shown to them or their rights, on account of which reclamation lies against the United States.
- No reclamation lies on behalf of the claimants against the United States on account of any alleged infraction by the United States of the provisions of the treaty of Guadalupe Hidalgo, the provisions of that treaty protecting the rights of property only of Mexicans, citizens of the republic of Mexico, and not of subjects of Her Britannic Majesty.
- The allegations in the memorial do not show any infraction by the United States of the provisions of the treaty of Guadalupe Hidalgo.
- The allegations in the memorial show no infraction by the United States upon any rights of the claimants or their predecessors under the law of nations.
- The allegations in the memorial show a case simply of adjudication by the regular judicial tribunals of the United States having jurisdiction of the subject-matter, and of the persons of the parties, concerning property lying within the limits of the United States, without fraud, corruption, oppression, or willful injustice. Such adjudication is not reviewable by this commission, and the parties to the same have no standing for reclamation against the United States.
- The allegations in the memorial fail to show the claimants British subjects, or entitled to a standing as such before this commission.
- The allegations in the memorial fail to show the present claimants to have succeeded to any alleged title of Andres Castillero in or to the property in question, or to any title of the original firm, so-called, of Barron, Forbes & Co., to the said property.
- The allegations in the memorial fail to show any title in Andres Castillero, the alleged source of title in the claimants in or to the premises in question.
- The allegations in the memorial fail to impeach the judgment of the Supreme Court of the United States upon the said case pending before them, or to show said judgment in any respect erroneous.
On the argument it was contended, on the part of the United States:
- That all the allegations in the memorial touching the unjust action of the United States by its statutes and legal proceedings prior to the 13th April, 1861, were outside the jurisdiction of the commission as established by the treaty; and if the United States or their authorized agents had been guilty of any wrong in these respects, such a wrong was not within the jurisdiction of the commission.
- That the only act of the United States or any of their officers alleged in the memorial to have been committed within the treaty time, is the adjudication by the Supreme Court of a case regularly pending before it on appeal by both parties from an inferior tribunal. That this decision is in express terms admitted by the memorial to have been honestly rendered without corruption or partiality. That such action of the court is not an act committed against the persons or property of subjects of Her Britannic Majesty, within the meaning of the twelfth article of the treaty.
- That the claimants were never, within the treaty time, disturbed in their possession of the property which they claim, or evicted therefrom. That at the conclusion of the litigation they voluntarily parted with all their pretended title to the property, and surrendered its possession to their grantees, who have since remained in undisturbed possession.
- That the claimants have no standing to claim for any alleged infraction by the United States of the provisions of the treaty of Guadalupe-Hidalgo. That that treaty provided only for the protection of the rights of property of Mexicans; and that the vindication of the rights of Mexico and her citizens under that treaty does not lie with the British government, and is not a subject submitted to the decision of this commission.
- That under the rules of international law no ground of reclamation by Great Britain against the United States, on behalf of these her alleged subjects, appears from the memorial. They became parties litigant before the Supreme Court, a judicial tribunal of the United States, in respect of lands lying within the United States, and in a case in which the court had unquestioned jurisdiction. Their rights were, as they themselves admit, honestly and fairly, but, (as they allege,) erroneously adjudicated there. Without awaiting eviction from the premises, they voluntarily parted with their entire claim to the lands, mining privileges, and all enjoyments and profits of the same; that if their grantees had been evicted from possession, the claimants could not be the parties to claim redress, having voluntarily surrendered all their rights; but their grantees had not been evicted; the whole estate with its vast revenues had continued to be enjoyed by the parties to whose enjoyment the claimants voluntarily ceded it.
On the part of the claimants it was insisted by Her Majesty’s counsel that the annulling of the title of the claimants by the decree of the [Page 168] Supreme Court in 1863, and the direction by the President of the United States to the United States marshal in California to expel the claimants from their property, constituted acts against the property of British subjects, bringing them within the jurisdiction of the commission. That the conveyance by the claimants to their grantees was a conveyance under duress of these acts, and did not discharge the liability of the United States, except so far as the amount received by the claimants from their grantees as purchase-money might go to reduce the amount of their loss. That it was within the jurisdiction of the commission to review the judgment of the Supreme Court, and if found erroneous to award compensation to the claimants for their losses by occasion of it. Her Majesty’s counsel cited Calvo Derecho Internacional, vol. 1, c. 9, §§ 206, 292, 797, page 391; De Felice Droit de Nature et des Gens, vol. 2, p. 9; Burlamaqui Droit de Nature et des Gens, Vol.—, p. 3, c. I; Phillimore, vol. 1, § 168; Rutherforth, vol. 2, book 2, c. 9, §§ 12, 13, 19; Manning’s Law of Nations, 383; Lawrence’s Wheaton, 673, 674, 679 to 682; Halleck’s Int. Law, §§ 15, 16; Story’s Conflict of Laws, §§ 591, 592.
The commission unanimously disallowed the claim.
George. H. and James W. B. Money, No. 324. The memorial in this case alleged, in effect, that the claimants were the owners of certain shares in the Bank of Louisiana, at New Orleans, which shares paid large dividends up to the year 1861; that at the close of that year, “in consequence of the war in America between the Northern and Southern States, and of the occupation of New Orleans and of the bank by General Butler, the bank ceased to pay any dividend or bonus,” and the claimants have never since been paid any dividends; that at the time of the cessation of the dividends the shares were worth $31,200, but that since that date they had been substantially valueless. The claimants claimed $33,720, besides interest. On demurrer by the United States, the claim was unanimously disallowed.
William B. Hodges, No. 354. This claimant, by his memorial, stated seven distinct claims against the United States, upon which he claimed awards to the amount of $1,474,155, besides interest.
- For 200 bales of cotton alleged to have been owned by the claimant in July, 1864, at Fort Adams, Mississippi. This cotton was alleged to have been seized by the United States military forces at Fort Adams, in August, 1864, and 178 bales of it sent to New Orleans; the remaining 22 bales he alleged were carried off by the teamsters who tied fearing that their teams, as well as the cotton, would be seized by the United States officers. The cotton brought to New Orleans was, on its arrival, turned over with other cotton by General Canby to B. F. Flanders, a Treasury agent of the United States. The claimant brought suit against Flanders in a Louisiana court to recover the cotton, which suit was afterwards discontinued with other like suits brought by other claimants of cotton against [Page 169] Flanders, on a stipulation for the delivery of the cotton to the respective claimants, according to their shares, as stipulated between themselves, by which stipulation Hodges was entitled to 122 bales. He claimed damages for the 78 bales which he failed to receive, and for depreciation of price on the 122 bales received by him, and for legal expenses incurred, to the amount of $106,850, besides interest.
- The second claim was for “hospital taxes” alleged to have been paid by the claimant to the military authorities at New Orleans under an order of Major-General Banks, then in command there, requiring that all cotton coming to New Orleans should pay a tax of $5 per bale; sugar, $1 per hogshead, &c., &c. The claimant alleged that he paid said taxes under protest to the amount of $20,924, for which amount, with interest, he claimed damages.
- The third claim was for 1,600 bales of cotton alleged to have been partly destroyed and partly carried off by the military forces of the United States, near Alexandria, La., in March, 1864, for which he claimed $125,040, besides interest.
- The fourth claim was for a quantity of cotton near Pearl River, Mississippi, which he alleged was, “by the neglect and inefficiency of the naval and military officers in command of the district, entirely and totally lost to your memorialist,” and for which he claimed $224,600, besides interest.
- The fifth claim was for a quantity of sugar and molasses, alleged to have been stored by the memorialist in March, 1864, upon Old River, in Point Coupee, Louisiana. The claimant alleged that he sent a vessel in March, 1864, to remove this sugar and molasses, but that the vessel was prevented by the United States gun-boat fleet from landing and taking on board the sugar and molasses, and that in consequence the sugar and molasses “were entirely lost to your memorialist.” For this he claimed $35,175, besides interest.
- The sixth claim was for a quantity of sugar, alleged to have been purchased in March, 1864, by the claimant, from one Thorne, a resident of Saint Martin’s Parish, La., where the sugar was situated. The claimant alleged that he hired a United States transport from the quartermaster of the United States Army, to whom he paid the sum of $3,000, to bring out the sugar from the plantation, where it was stored, to Brashear City, La., to be thence transported to New Orleans. That 84 hogsheads of the 300 purchased were brought out by said transport to Brashear City, where it was seized by the United States authorities, and libelled in the United States district court, but said libel was dismissed and the sugar surrendered. The United States authorities, however, prohibited the transport which the claimant had hired from returning for the remainder of the sugar; and, in consequence of such refusal, he alleged that the sugar was shortly afterwards destroyed by confederate scouts. For his losses in this regard, he claimed $81,565, besides interest.
- The seventh claim was for a large quantity of cotton alleged to have been purchased by the claimant in the States of Louisiana and Mississippi, 1,000 bales of which he alleged to have been destroyed by troops of the United States, and the remainder to have been lost and destroyed through the negligence and default of the United States authorities. Under this claim he claimed an award for $580,000, besides interest.
During all the transactions in question the claimant was domiciled in New Orleans.
The questions arising in the case were, to a large extent, questions of fact, the recapitulation of which here would be unprofitable. In regard to most of the property set forth in claims 1, 3, 4, 5, 6, and 7, it was contended by the United States that the claimant’s title was invalid, as obtained by unlawful purchases from enemies of the United States of property within the enemy’s country, in violation of the non-intercourse statutes of the United States, and of the general laws of war. The permits under which most of this property was alleged to have been purchased were also claimed by the United States to have been irregular, collusive, and fraudulent, issued in violation of law, and giving to the claimant no right to trade within the enemy’s country.
In regard to the claim for payment of alleged illegal taxes, being the claimant’s second claim, it was contended on the part of the United States that the tax was a lawful one, imposed by the commanding officer at New Orleans, while that city was governed solely by martial law, as a condition for the carrying on of trade in that city; and its proceeds properly applied to the relief of the poor of the city, with whose care the military authorities were of necessity charged. That it was a tax imposed upon all persons trading in the city without discrimination, and voluntarily paid by the claimant in common with all other persons in like situation in New Orleans. Various other questions in regard to all the claims were raised and discussed by the respective counsel, but they were mainly such as relate only to the special circumstances of the case and the questions of fact involved in the evidence in relation to them.
The commission made an award in favor of the claimant for $34,150, Mr. Commissioner Frazer dissenting. I am advised that this award was made entirely in respect of the claimant’s first claim above recited, and of the amount paid by the claimant to the United States quartermaster for the use of the transport, as set forth in the sixth claim.
In the case of Peter Maxwell, No. 385, the memorial alleged that the claimant, during the entire war, was a resident of Liverpool. That in the year 1862 proceedings were instituted in the United States court for the district of Kansas for the confiscation of four lots of land situated in the city of Leavenworth, Kans., a State not in rebellion, on the alleged ground that the claimant was a rebel in arms against the United States. The only notice of the proceedings to the defendant [Page 171] was a constructive notice by publication pursuant to the statute. No appearance being bad by the now claimant, a decree of confiscation of two of the lots passed by default. As to the other two, the libel was dismissed.
The proofs before the commission clearly showed that the allegations in the libel as to the claimant being engaged in the rebellion against the United States were unfounded.
The commission made an award in favor of the claimant for $1,782.
Bailey & Leetham, claimants, No. 386. The claimants were the owners of the British steamship Labuan, which, on the 5th of November, 1862, was in the port of New York laden with a cargo of merchandise destined for Matamoras. On that day her master presented the manifest to the proper officer of the custom-house at New York for clearance, but such clearance was refused, and the refusal continued up to the 13th of December, 1862, on which day it was granted. The memorial alleged that this detention was by reason of instructions received by the custom-house officers from the proper authorities of the United States to detain the Labuan, in common with other vessels of great speed destined for ports in the Gulf of Mexico, to prevent the transmission of information relative to the departure or proposed departure of a military expedition fitted out by the authority of the said United States. The memorial claimed damages for the detention $38,000, being at the rate of $1,000 per day, the memorial alleging that on a former seizure and detention of the same vessel, from February to May, 1862, when libelled as prize, this rate of compensation for the detention had been awarded to the owners by the district court of the United States.
On the part of the United States it was contended that the detention of the Labuan, under the circumstances alleged in the memorial, was within the legitimate and recognized powers of the United States; that it was no infringement upon the rules of international law or upon any treaty stipulations between the United States and Great Britain, and that it gave no right of reclamation in favor of the claimants against the United States; that the right of self-protection, by temporarily refusing clearance to vessels through which information of great importance in regard to military movements is likely to reach the enemy, must be regarded as of necessity permissible to a government engaged in war; that at the time of this detention important military movements then in progress in connection with the occupation of New Orleans by the Federal forces, including the dispatch of General Banks, with large re-enforcements, to supersede General Butler in the command there, were in progress, and made it of the utmost importance that these movements should be carefully kept secret from the rebels; that the detention of the Labuan was not by any discrimination against her as a British vessel, or against British vessels as such. All vessels capable of such a rate of speed as to make their departure [Page 172] dangerous in this regard were detained alike. That no claim had ever been made by the British government, through the usual diplomatic channels, upon the United States for compensation; and that it could not be believed that such claim would not have been made if Her Majesty’s government had considered such a claim valid. The counsel for the United States cited, in the connection, the letter of Mr. Stuart, Her Majesty’s minister at Washington, to Mr. Seward, of 1st August, 1862, (U. S. Dip. Cor., 1862, 1863, part 1, p. 273,) upon a somewhat analogous question, in which Mr. Stuart says:
I have been instructed to state to you that Her Majesty’s government, after considering these dispatches, in connection with the law-officers of the Crown, are of opinion that it is competent for the United States, as a belligerent power, to protect itself within its own ports and territory by refusing clearances to vessels laden with contraband of war or other specified articles, as well as to vessels which are believed to be bound to confederate ports. And that so long as such precautions are adopted, equally and indifferently in all cases, without reference to the nationality or origin of any particular vessel or goods, they do not afford any just ground of complaint.
The case of the detention of the Labuan, it was contended on the part of the United States, was governed by the same principles and justified by the same rules as the cases referred to by Mr. Stuart. The counsel referred to the decision of the commission upon the American claims against Great Britain, growing out of the prohibition of the exportation of saltpetre at Calcutta, (American claims, Nos. 11, 12, 16, 18,) hereinbefore reported, and in which such prohibition was held by the commission not to involve a violation either of international law or of treaty stipulation; and urged that the principles which would sustain the validity of such prohibition must also include such a case as the detention of the Labuan.
The counsel for the claimant maintained that the detention of the Labuan was in effect a deprivation of the owners of the use of their property for the time of the detention for the public benefit; that it was in effect a taking of private property for public use, always justified by the necessity of the State, but likewise always involving the obligation of compensation. He cited 3d Phillimore, 42, and Dana’s Wheaton, 152, n.
The commission unanimously made an award in favor of the claimant for $37,392.
In the case of Catharine J. Johnson, executrix, No. 449, the memorial alleged that the claimant’s testator was the sole registered owner of the British schooner James Douglas, which-vessel, while on a voyage from Cuba to New York, met with disaster which led to her being abandoned by the master and crew; that she was subsequently fallen in with by a United States vessel of war, which took her into the port of Beaufort, North Carolina, where she was appropriated to the use of the United States Government; that on application to that Government for her restoration, the Secretary of the Navy gave directions that [Page 173] the vessel be surrendered to her owner on his renouncing all claims for the use of the vessel by the United States; that, notwithstanding these orders, the vessel had never been restored to her owner, but was still in the port of Beaufort under the control of the officials of the United States. The claimant claimed damages $7,000, besides interest.
The proofs showed that, after the vessel was brought into port, and before any claim was interposed on behalf of her owner, some use had been made of the vessel by the Navy Department; that the claim of the owner was interposed through the British legation, and that the United States Government at once offered to surrender her on payment of a reasonable salvage to the officers and crew of the vessel which brought her in. Some objection being made to the payment of the salvage asked, the United States Government directed her surrender without salvage, on the claimant’s waiving claim for compensation for the use that had been made of her while in port. No objection was made to this condition, and no further claim was ever advanced by any person for the vessel. She remained lying at Beaufort waiting requisition of her owner, and nothing further was ever heard of the matter until the filing of the memorial before the commission.
The commission (Mr. Commissioner Gurney dissenting) made an award in the following words:
We think it does not appear that the United States appropriated the vessel, and we regard it as yet being the claimant’s property. The claim is, therefore, disallowed.
All which is respectfully submitted.
Agent of the United States, &c.