Mr. Commissioner Frazer’s dissenting opinion
in the case of Henry Henderson vs. United
States. No. 410. See p. 49, ante.
Henderson, in whose behalf Great Britain makes this claim, is a British subject by birth, and has taken no steps toward becoming naturalized in this or any other country. He became domiciled near Port Hudson, in the parish of West Feliciana, in 1850, employed in cultivating and dealing in cotton, and has ever since resided there. There is no room to doubt that it was his voluntary and permanent domicile. It is not even alleged that he maintained a personal neutrality during any period of the rebellion, and there is no proof whatever of that fact. In June, 1863, he owned in the neighborhood of 112 bales of cotton. After twenty-seven days of effort by continuous fighting, General Banks, commanding the United States forces investing the fortified town of Port Hudson, held by the rebels, found himself unable to carry the works by assault, and thereupon commenced a regular siege of the place. Cotton found in the neighborhood, including Henderson’s, was, without discrimination, seized by the United States forces, and used almost exclusively in the construction of fortifications, a purpose to which cotton in bales [Page 235] is known to be well adapted in the emergencies of a siege. The officer who took Henderson’s cotton gave papers as follows:
Received, Bienvenue plantation, West Louisiana, from the plantation of Jed. D. Smith, fifty-one (51) bales of cotton, by order of Col. S. B. Holabird; seized by order.
T. K. Fuller,
Capt. Seventy-fifth N. Y. Vols., A. A. Q. M.
June 10, 1863.
June 12, 1863.
I have taken, by order of Col. S. B. Holabird, for the United States Government, 133 bales of cotton from the Carmina plantation, West Louisiana.
(Signed as above.)
The fortifications and works of the besiegers were extensive, being equal to a continous line of over seven miles. After the fall of Port Hudson, the cotton was gathered up, cleaned, and sold, and the proceeds applied to the use of the troops of the United States.
Under these facts the majority of the commission determine that Henderson has a valid claim against the United States for the value of his cotton, and an award is made in favor of Great Britain accordingly.
I cannot join in this award, and the principles of public law involved in it and contravened by it, seem to me so very important and so well settled, that I feel it my duty respectfully to state the reasons which control my action now and may control it in other cases.
1. That a foreigner domiciled in the United States, voluntarily remaining in a hostile part of it, in rebellion against it, that part recognized by the country of his origin as a belligerent, thus choosing to trust himself to its protection, thus being in law an enemy of the United States, without even pretending that he was in fact neutral, may be recognized as entitled to maintain a claim against it for property appropriated by its invading armies, when no citizen of the United States could under like circumstances claim such consideration, is a proposition to which I must enter an earnest and emphatic dissent. If it has any support in equity, justice, or the public law, then I am greatly in error.
2. The cotton was the property of an enemy of the United States, so recognized by every writer upon international law, and so held by all tribunals, both American and British as well as continental, in every reported case involving the question. The mixed commission, constituted under the convention of 1858, between the two countries, so held in Laurent’s case. Indeed, it went further, and held that an unnaturalized Englishman voluntarily domiciled in a country at war with the United States was not even to be regarded as a British subject; thus going a little too far, as I think.
The property of Henderson was as liable to capture as the property of Jeff. Davis himself, or any rebel in arms. I believe this is not questioned. That the property itself was a proper subject of capture on land under the modern rules by which civilized nations govern themselves in war, seems to me to be quite as clear.
The legislation and the known practice of the rebel authorities made it so. They made cotton the basis of their public credit by a policy which aimed to deal largely in it on government account, to purchase it even before it was grown, and hypothecate it as security for the payment of loans, with the proceeds of which they did, to a large extent, supply themselves with arms and munitions of war, and with a fleet of armed vessels to infest the ocean and destroy American commerce. They committed it to the flames, whether owned by friend or foe, rather than permit it to reach the markets of the world otherwise than through their own ports; thus endeavoring by warlike operations to secure to [Page 236] themselves a monopoly in supplying the foreign demand, that they might thereby constrain nations abroad to aid them in their struggle. In short, cotton was a special and formidable foundation of the rebel military power. It was more important than arms or ships of war, for it supplied these and all else beside. It was more potent than gold, for it not only commanded gold, but it largely enlisted in behalf of the rebels the interests of foreigners whose manufacturing industry was in a measure paralyzed because this staple was needed to keep it in motion. The necessities and purposes of war, therefore, required its capture at every opportunity more imperatively than the capture of munitions and implements of war; indeed, that necessity was quite as pressing and certainly as humane as the killing of men in battle; for it was no less efficient as a means of accomplishing the subjugation of the rebel armies, and re-establishing the national authority. It is to me astonishing if there is a difference of opinion upon this subject.
The Supreme Court of the United States, recognizing to the fullest extent all the limitations which the practice of nations has lately engrafted upon the right of capture upon land, so held in the case of a loyal American widow. (See the case of Mrs. Alexander’s Cotton, 2 Black.) This is high authority, especially when it is remembered that that august tribunal has certainly exhibited no tendency whatever to give undue license to military authority or warlike operations. Complaint, if any, has been altogether in the other direction. But I would be quite content, in the absence of any authority, to trust the question with the common sense of all civilized nations so long as war in any form shall be recognized as a lawful method of deciding differences. If the capture was rightful by the laws of war, it would be a novelty in international law that its exercise involves an obligation to make compensation.
3. But another point remains, which in my judgement is absolutely conclusive agaisnt any award on account of this claim, if the rules of international law should control the determination of the question. Henderson was voluntarily and permanently domiciled in one of the rebellious States, the territory held by the so-called Confederate States recognized by Great Britain as a belligerent. By that act of recognition all British subjects were bound. If they chose to remain in that part of the world, they voluntarily took the chances of war and intrusted their interests to the protection of that organization. They must look to it for protection from the results of war; and now that it has, by the fortunes of war, been exterminated, the country of their origin has no right (save possibly in exceptionally flagrant cases) to intervene in their behalf as against the United States for indemnification. This I think is as clearly established as a rule of international law as anything can be. It was so held in Laurent’s case, supra. It was so declared by the American Secretary of State in reference to the bombardment of Grey town, and was then assented to by the English government under the advice of the law-officers of the Crown. The Attorney-General on that occasion declared in Parliament that every jurist admitted it. He said “the principle which governed such cases was that the citizens of foreign states who resided within the arena of war had no right to demand compensation from either of the belligerents,” (See Wheat. Int. Law, 173—note by Lawrence.) This rule is so much in the interest of the peace of nations that it should be steadfastly maintained. A right to interfere is so intimately associated with the duty of doing so, that any relaxation of this principle would but multiply occasions of war and afford too many opportunities for that armed intervention in the quarrels of others which is sometimes sought, in vain, by ambitious rulers.