No. 630.
Mr. de
Muruaga to Mr. Bayard.
Washington, August 13, 1886. (Received August 18.)
The undersigned, envoy extraordinary and minister plenipotentiary of Spain, had the honor, on the 1st ultimo, to acknowledge the receipt of the note of the honorable Secretary of State of the 28th of June previous, in relation to the claim of the Spanish firm of Maza & Larrache.
It is now his duty, in obedience to the instructions of Her Majesty’s Government, again to invite the attention of the honorable Secretary of State to this claim, asking that it may be re-examined in view of the facts and reasons which the undersigned will state in this note, feeling confident that the honorable Mr. Bayard, acting in accordance with the dictates of his well-known spirit of sincerity and friendship for the Government and people of Spain, will not hesitate to reconsider the case.
The undersigned is compelled to think that the honorable Secretary of State’s note of June 28 was written without a full understanding of the facts on which the claim is based. The note of this legation of the 19th of February last fully and correctly establishes the validity of the claim, which is based upon sworn statements and documents that have been laid before the Department of State, and it is clearly shown, [Page 1009] in the aforesaid note, that the seized cotton “was the property of Spanish subjects, who had purchased it in the course of the usual and legitimate operations of their commercial establishment.” It is true that, when the claim was first presented, it was stated that Messrs. Maza & Larrache had purchased the cotton by a contract with the Confederate Government. Subsequently, however, the affidavit of Mr. Ezequiel Bustamante, the agent who bought the cotton, was secured and sent to the Department of State as an inclosure to the note of this legation of March 10, 1885. The said agent thereby declares that he purchased the cotton in question from loyal citizens of the United States (that is to say, non-combatants) in the States of Texas and Louisiana. This apparent contradiction is easily reconciled and explained by the fact that the Confederate Government exercised strict surveillance over the transportation of all the cotton within its territory, and that no purchase could be made except through its officers or with their approval. It is, therefore, confidently to be hoped that, in view of these facts, the statement made in the note of the 19th of February last will be considered as being strictly correct, and the cotton in question as having been purchased in the way of a legitimate commercial transaction, just as this has been repeatedly recognized by the United States Government, in consequence of which the owners are entitled to indemnity from the National Treasury.
The undersigned has not forgotten the fact that the place where the cotton was purchased was within the jurisdiction of a power (or of its authorities) that was at war with, or in rebellion against, the United States Government, and that the latter had forbidden all commercial transactions with that territory. He begs leave to remark, however, that, according to the principles and practice of international law, such a prohibition could not be maintained against other nations otherwise than by the establishment of an effective blockade of the coast and by-something equivalent thereto on the land frontier.
It is a well known fact that the claimants and their predecessors were for many years engaged in commercial operations in those states of Mexico which border upon the territory of the United States, and that they had correspondents and maintained commercial relations in the States of Texas and Louisiana long before the outbreak of the war. It is believed to be a matter of history that the United States Government, during the entire period of the war for secession, never seriously attempted to maintain, either by means of military stations or patrols, its prohibition of trade with the Confederacy along the frontier line extending from Brownsville, near the Gulf of Mexico, to the northwestern limit of the State of Texas. Throughout this long extent, comprising hundreds of leagues, not a sign of any military or other force was established by the United States for the de facto prevention of trade between the Confederacy and the neighboring territory of Mexico. Such was the condition of things in the region in which the claimants effected their commercial transactions. Since no measures were taken to prevent other merchants from carrying on commercial business it does not seem reasonable to assert that the Spanish house of Maza & Larrache was engaged in illicit trade. Under these circumstances, even if the said firm had traded with the Confederate authorities, it will be shown in the present note that such trade did not deprive it of the right to indemnity for its property that was seized and appropriated by the United States Government.
Before entering upon an examination of the principles of international law which were stated in the note of the honorable Secretary of State, [Page 1010] it is proper for me to explain another fact which is intimately connected with the claim now under consideration.
The cotton for which indemnity is asked was not captured while being carried across the Confederate lines during the war, nor was it seized during the period of active military operations. It is a historical fact that after May 13, 1865, no resistance was offered to the Federal authorities anywhere in the territory of the Union. The capitulation of the Confederate army of the trans-Mississippi department was signed at New Orleans on the 26th of the aforesaid month, and General Grant’s proclamation to the Union Army, announcing the termination of the war, was published on the 2d of June following. Subsequently to May 26 northern Louisiana, where the cotton of the claimants was stored, was peacefully occupied by the United States authorities, and the cotton in question, which was stored at Shreveport, was seized by the agents of the Treasury Department and taken to New Orleans during the months of June, July, August, and November, 1865.
The undersigned thinks that, in view of the circumstances of this case, he is not called upon to refute the assertion of the honorable Secretary of State that cotton, during the war for secession, was an article contraband of war. The acceptance of this assertion would, however, imply an extension of the list of articles contraband of war agreed Upon by the treaty of Paris. It will be sufficient to remark that, whatever may have been the principles professed on the subject by the United States Government, it will hereafter be shown that that Government has been very far from uniformly maintaining its theory in actual practice.
The note of the honorable Secretary of State enunciates correctly, it is believed, the principle of international law, that foreigners or their agents, who are domiciled in an enemy’s country for mercantile purposes, are to be considered as belligerents, and that property abandoned by its owner in belligerent territory is subject to the chances of war and to confiscation, and that the principle has been recognized among civilized nations that governments are not obliged to indemnify the owners of property destroyed in active warlike operations, such as bombardments, battles, and marches.
While this doctrine, however, is recognized as a general principle, it is, nevertheless, liable to numerous exceptions, among which the undersigned will cite the following:
Governments frequently extend to the subjects of friendly nations the same usage that they accord to their own citizens. They likewise accord, and this is very common, the same principles of compensation that are claimed by other governments; and when property captured during the operations of war is not destroyed, but is used in order to provision the army, or when its value is deposited in the national treasury, then governments often indemnify the owners of the property captured or seized.
In order that this note may not be rendered unreasonably long by a statement of the practice of nations, made with the view of demonstrating the truth of the foregoing exceptions, the undersigned thinks that it will be amply sufficient for the purpose of the present claim if he confines himself to a statement of the course pursued by the United States Government both during and since the war for secession.
The Congress of the United States has in a large number of cases granted payment to its own citizens for property situated within the Confederate lines which had been destroyed by the Union Army or token for its use, or the proceeds of which had been deposited in the [Page 1011] wilts of the national Treasury. Among such measures may be mentioned the act of March 12,1863, known as “The captured and abandoned property act,” and that of March 3, 1871, creating the Southern Claims Commission.
Since the close of the war the United States Government has concluded conventions with Mexico, England, and France for the settlement of claims of their respective citizens and subjects.
The commissioners appointed in pursuance of those conventions have examined and decided favorably a great many claims growing out of the operations of the war. A cursory examination of these claims will clearly show the attitude assumed by the United States in behalf of their own citizens and the concessions made by them in favor of the subjects of other nations.
The Government of the Union presented a large number of claims against that of Mexico in behalf of its citizens, asking for indemnity on account of destruction of, or injury to, their property, caused by the military operations of the Mexican troops, on account of provisions taken for the use of said troops and of property seized and appropriated by the Mexican Government in time of war in that country. Among other cases the following may be cited:
The case of Mr. Anderson, No. 333; this was a claim of American residents based upon the injuries done to their plantation and crops in the State of Sinaloa, Mexico, by the encampment on said property of the Mexican troops under General Corona, and for provisions taken for the use of the aforesaid troops during the war occasioned by the establishment of an empire in that country. This claim was energetically advocated by the agent of the United States, and the American commissioner held that, although a Government in time of war had a legal right to take possession of any property belonging to the inhabitants of the country, it was bound to pay for the same, and in accordance therewith indemnity was awarded to the claimants, just as it was to various others who had brought similar claims.
That of Mr. Gárate, No. 699, for damage done to the claimant’s house while occupied by troops during the bombardment and seige of Matamoras in 1861, and also for wearing-apparel and other articles taken by General Cortina for the use of his troops in 1865, during the war with the French. In this case judgment was rendered against Mexico, and Mr. Gyrate was indemnified, as were various other parties whose claims were similar to his.
That of Mr. Newton, No. 154; in this the United States asked for and secured an award against Mexico for a quantity of cotton rags taken from the claimant’s factory to be used in dressing the wounds of the soldiers that had been wounded during the siege of Guadalajara.
That of Mr. Benjamin Weil, No. 447, in which the United States Government asked for and secured an award against Mexico for the sum of $487,000 on account of the seizure of a train loaded with cotton, which the claimant had purchased within the Confederate lines in Texas and had taken across the frontier into Mexico, where it was captured by the Mexican authorities in 1864 while the war for secession was raging with unabated fury. A considerable portion of the amount of this claim was paid over to the claimants by the worthy predecessor of the honorable Secretary of State.
The Anglo-American Commission, which was organized in pursuance of the treaty of Washington, concluded in 1871, made a considerable number of awards in favor of British subjects, many of whom had resided or been engaged in business within the Confederate lines, on account [Page 1012] of property captured by the Union forces within the enemy’s lines and subsequently confiscated or appropriated to the use of the United States Government. That Government maintained the principle that persons domiciled within the enemy’s territory were to be considered as enemies. This principle was, it seems, accepted as part of the law of nations, but in view of the fact that the United States had granted compensation to their own citizens in similar cases, it was decided that neutral foreigners were entitled to the same kind of indemnity. (See documents relating to the treaty of Washington, vol. 6, pages 41–45.)
Many claims were laid before the commission on account of cotton seized by the United States Government. This Government objected thereto, on the ground that cotton was the product on which the enemy mainly depended for the purchase of provisions, and that it properly constituted an article contraband of war; that the abandoned and captured property act of March 12, 1863, was an act of grace and that no use could be made of it except on the terms therein specified, and that, consequently, compensation for seized cotton could not be obtained through the commission. This argument, however, was disregarded, and all the claims laid before the commission, that had not previously been taken before the Court of Claims, were examined and decided favorably on their own merits. (See vol. 6, pages 46–49.)
The same course was adopted by the French and American Cominission appointed in pursuance of the treaty for the settlement of claims, which was concluded in 1880, both in respect to cotton and to property in general. (See Boutwell’s report.)
In order that the honorable Secretary of State may be able properly to appreciate the merits of the claim of the firm of Maza & Larrache, the undersigned will cite a few similar cases which were favorably decided by the aforesaid commissions.
Among those of English claimants he will cite the following:
That of Henderson, No. 41; in this case the cotton was seized by General Banks within the enemy’s lines, in the course of active military operations in 1863, and was appropriated to the use of the United States. The agent of the United States Government maintained that the seizure was justified by the laws of war for strictly military purposes, inasmuch as the cotton was the enemy’s property, captured within the enemy’s territory, in which the claimant was domiciled.
That of Thompson, No. 237; the cotton was captured in 1863, within the Confederate lines; it was used in the construction of fortifications, and afterwards burned to prevent it from falling into the hands of the enemy.
That of O’Bryan, No. 298; the claimant was a resident of Charleston, S. C., and the cotton was seized during the occupation of that city by the United States troops in 1865, delivered to agents of the Treasury Department, taken to New Orleans, and sold there.
Among French claims he will cite the following:
That of Dupré, No. 67; the cotton was seized in Louisiana, in May, 1863, by a military expedition, and taken to New Orleans.
That of Brochard, No. 110; the cotton was captured within the enemy’s lines by gun-boats belonging to States Navy, during the Red River expedition, in 1864.
That of Prévöt, No. 172; the cotton was seized in May, 1863, by United States troops, according to the captured property act, and taken to New Orleans.
That of Jeannaud, No. 206; the Cotton was burned by United States troops during General Banks’s Red River expedition, in 1864.
[Page 1013]The commission unanimously expressed its opinion as follows:
This was an act of unnecessary destruction committed “by the soldiers in a moment of excitement on returning to their camp after gaining a victory over the Confederates.
That of Sardos, No. 157; the cotton was burned by United States troops during General Banks’s Red River expedition, in 1864, while the enemy was retreating. The owner was accused of having dealt with the enemy, and of having lent him assistance; his defense was that, being domiciled in the territory, he had a right to sell provisions to the Confederate army. The commission unanimously decided in the claimant’s favor.
That of Steyrie, No. 655; Mr. Steyrie resided in France during the war; the cotton was captured by a United States gun-boat at one of the sea islands, in South Carolina, while on board of a lighter, and about to be exported. A plantation belonging to the claimant was also occupied by a party of freedmen.
In all these cases the commission decided in favor of the claimants.
It thus appears that the United States Government has claimed and obtained from Mexico, in behalf of American citizens, indemnities for property destroyed during the active operations of war, and for provisions captured and appropriated to the use of the Mexican Army. The United States Government has gone still farther, since it has required payment from the Mexican Government of an indemnity to an American citizen who was domiciled in the territory of the Confederate States, and was engaged in business within the enemy’s lines, on account of cotton which the aforesaid American citizen had removed from the Confederate territory with the intention of shipping it to Europe, while the war of the rebellion was at its height.
Certainly if the Government of Mexico, under such circumstances, was obliged by international law to indemnify the claimant, the United States Goverment, which supported and enforced this claim, will not refuse to pay the claim of the Spanish firm of Maza & Larrache, which has been presented by the Spanish Government, for the cotton which, while quietly stored in Confederate territory awaiting the end of the conflict, was seized after the war was over and sold by the United States, the proceeds thereof being deposited in the National Treasury, where they still remain.
The undersigned appeals to the uprightness of the honorable Secretary of State, and feels confident that he will extend to the Government of Spain the same principle of compensation that the United States claimed and obtained from the Government of Mexico.
It has been abundantly shown that the United States Government has modified the recognized doctrine of international law stated by the honorable Secretary of State in his note of the 28th of June last, in that it has granted indemnities to its own citizens domiciled or owning property in the territory of the Confederate States on account of losses of or injuries to the same when the said Government took possession thereof for its own use and benefit.
It has also been shown that the article cotton has been included among those kinds of property for which the United States Government allowed the said indemnities; that foreigners who were domiciled or engaged in business or who owned property within belligerent territory have been indemnified in pursuance of decisions of United States courts, and that in those cases in which French or English claimants presented their claims diplomatically through their respective Governments [Page 1014] they were likewise indemnified for the losses which they had suffered.
After the explanation, furnished at the beginning of this note, concerning the character of the trade in which the claimants were engaged within the Confederate lines, and after the citations of awards for cotton captured and confiscated when the war was at its height, it is not to be presumed that the honorable Secretary of State will insist upon considering that trade as illicit so far as to refuse indemnity, which, under similar circumstances, has been conceded by the United States Government to subjects of other friendly nations. The undersigned can not admit that the firm of Maza & Larrache was engaged in a kind of trade that rendered its acts disloyal, by furnishing direct aid and military strength to the enemy. Even admitting, however, that the firm should be shown, by a new investigation, to have been guilty—even more guilty than was asserted in the note of June 28—yet even in this latter case it can not; be deprived of the right to indemnity for its cotton. The undersigned knows that the Supreme Court of the United States, in the case of a claim preferred by a British subject (Carlisle, 16 Wall, 147), who was proved to have been engaged in furnishing saltpeter to the Confederate military authorities for the manufacture of gunpowder, decided that the assistance rendered by the claimant to the rebellion did not justify a denial of his right to receive the proceeds of his property from the United States Treasury, in view of the proclamation of amnesty issued by the President on the 25th day of December, 1868. By that act of amnesty or pardon all offenses and acts of disloyalty were condoned, and those who had committed them were authorized to recover the proceeds of their cotton, provided that they furnished proof of ownership and of its capture.
The undersigned is perfectly well acquainted with the sentiments of impartiality and uprightness of the honorable Thomas F. Bayard, and he thinks that it would not be very respectful on his part to enter into further arguments to show that the respected Spanish firm of Maza & Larrache is entitled to receive from the United States the same measure of indemnity that has been granted to the subjects of other nations.
The honorable Mr. Bayard has been able to form a correct idea of the spirit of equity which has ever influenced the action of Spain in the ease of American claimants, and of which it has just given unmistakable evidence in a recent and notable instance. The undersigned therefore feels convinced that, after a second and more careful examination of the matter which forms the subject of this note, and after considering the facts therein stated, the honorable Secretary of State will be able to point out some means whereby an opportunity may be afforded to Messrs. Maza & Larrache, Spanish subjects, to determine the extent and amount of their losses, and to receive due compensation therefor. When it is remembered that a very large fund is now in the vaults of the United States Treasury which consists of the proceeds of the sale of cotton, and which consists, in part, of the proceeds of the sale of that which was taken from the firm of Maza & Larrache; when it is remembered that that firm has for many years been endeavoring to obtain compensation for its heavy losses, the undersigned can not do otherwise than feel confident that the honorable Secretary of State will make use of reciprocity towards the Government of Spain by complying with its just desires in the present case, in which it is deeply interested.
The undersigned, avails himself etc.,