Papers Relating to the Foreign Relations of the United States, For the Year 1887, Transmitted to Congress, With a Message of the President, June 26, 1888

No. 631.
Mr. Bayard to Mr. de Muruaga.

Department of State,
Washington, December 3, 1886.

Sir: I have the honor to acknowledge the receipt of your communication of August 13 last, a reply to which has unavoidably been delayed, and to which I have given the careful consideration it deserves. In view of the importance of the questions involved, and of the great respect felt for yourself and the Government you so worthily represent especial effort has been made to meet your views, and I now proceed to consider the arguments advanced in your communication.

In my note to you of June 28, 1886, the following positions are taken, which I now restate, because I fear I have not been so fortunate as to have my meaning understood.

During the year 1864 the agents Of Maza & Larrache purchased about 3,000 bales of cotton from the Confederate States Government, of which 1,369 bales, valued at $700,000 and stored at Shreveport, in Louisiana, Were seized by the United States Government, shipped to New Orleans, there sold, and the proceeds turned into the National Treasury, For this seizure the claimants now demand indemnity from the United States Government.’

This was a contract between the claimants and the Confederate States Government, a recognized belligerent, engaged in open rebellion and public war against the United States.

The commodity contracted for was, as the claimants well knew, especially used by the Confederate Government for warlike, purposes, and that government designed, by assuming absolute control of the entire cotton product, to exchange it for military stores, and by restricting its supply to foreign consumers to coerce thereby recognition as an independent nationality.

The cotton within the Confederate States was publicly recited in their obligations and bonds as a security for their payment; its exportation and sale controlled and regulated by statute, and it thus became officially and publicly classified among the war assets and supplies of that government, and its destruction was authorized, Wherever found whenever military exigencies rendered it advisable to avoid capture by, United States forces.

Being thus a munition of war, as much as arms or powder, there could be no question of the right, Under international law and usage, of the United States authorities to seize it as contraband whenever found within the theater of war.

Alien ownership of such property so found and seized does not exempt it from liability for confiscation, as has been decided by Spain in analogous cases.

War was flagrant at the time and in the place where the contract with the Confederate States Government was made by the claimant, and this status did not terminate until August 20, 1866, as has been judicially established.

This Department has held all merchants domiciled in belligerent territory to be belligerents, and the same rule will apply to aliens resident in the enemy’s country represented by agents there, and I have already referred you to many decisions as authority for the subjection of the property of such aliens to the chances Of war, and to confiscation by a successful belligerent when found in the enemy’s country.

In your note now before me you contest the fact that the cotton in question was purchased under “a contract with the Confederate Government,” admitting, however, that the statement that it was so purchased was made in the “claim as first presented.” You now call attention to an affidavit filed in the case to the effect that the cotton in question was purchased “from loyal citizens of the United States, that is to say, non-combatants,” and you proceed to maintain that “this apparent contradiction is easily reconciled and explained by the fact that the Confederate Government exercised strict surveillance over the transportation of all cotton within its territory, and that no purchase could be made except through its officers or with their approval.”

With great desire to recommend the claim here presented, if I can rightfully do so, I can not hold, even were I to consider the affidavit referred to as a competent denial of the claimants’ own sworn statements on file, that it presents a state of facts materially different from that on which I partly based my former conclusion. I do not regard “loyal citizens of the United States” and “non-combatants” as equivalent or convertible terms, nor, even if they were, do I conceive the statement that the cotton was purchased from “loyal citizens of the United States” in any way affects the pending issue. If, as it is conceded, the purchase was made when war was flagrant, with the co-operative approval of the Confederate States officials; and if the cotton was held under the shelter, and with the sanction of that Government, this must have been because the investment promised to be beneficial to the Confederacy and therefore necessarily prejudicial to the United States.

As the claimants well knew, cotton was the basis of value on which the belligerent power of the Confederacy chiefly rested, and purchased, as in the present case, with the agency and approval of the officials of that government, remained when within its military lines under its control.

The claimants knew this when making the purchase, and thus voluntarily aided in supplying an additional element of Confederate strength, and they thereby gave such aid and comfort to the Confederacy as bars them from maintaining their present claim.

The Federal Government had the right, by the law of nations, to seize the cotton in question in the summer of 1865. In support of this position I respectfully call your attention to the following language of Chief-Justice Waite in delivering judgment in the case of Young vs. United States, 97 U. S., 58, decided in 1877:

Beyond all doubt the late rebellion against the Government of the United States was a sectional civil war, and all persons interested in or affected by its operations are entitled to have their rights determined by the laws applicable to such a condition of affairs. It is equally beyond doubt that, during the war cotton found within the Confederate territory, though the private property of non-combatants, was a legitimate subject of capture by the national forces. We have many, times so decided, and always without dissent. (Mrs. Alexander’s cotton, 2 Wall, 404; United States vs. Padelford, 9 id., 531; Spratt vs. United States, 20 id., 459; Haycraft vs. United States, 22 id., 81; Lamar vs. Browne, 92 U. S. 187.)

The authority for the capture was not derived from any particular act of Congress, but from the character of the property, it being potentially-an auxiliary of the enemy, and constituting a means by which they hoped and expected to perpetuate their power. As was well said by the late Chief-Justice in Mrs. Alexander’s case (supra), when this question first arose:

“Being enemy’s property, the cotton was liable to capture and confiscation by the adverse party. It is true that this rule as to property on land has received very important qualifications from usage, from reasonings of enlightened publicists, and from judicial decisions. It may now be regarded as substantially restricted ‘to special cases dictated by the necessary,operations of the war’, and as excluding in general ‘the seizure of the private property of pacific persons for the sake of gain,’

“The commanding general may determine in what special cases its more stringent application is required by military emergencies; while considerations of public policy and positive provisions of law, and the general spirit of legislation, must indicate the cases in which its application may be properly denied to the property of non-combatant enemies. In the case before us the capture seems to have been justified by the peculiar character of the property, and by legislation. It is well known that cotton has constituted the chief reliance of the rebels for means to purchase the munitions of war in Europe. It is a matter of history that, rather than permit it to come into the possession of the national troops, the rebel government has everywhere devoted it, however owned, to destruction. The value of that destroyed at New Orleans just before its capture has been estimated at $80,000,000. * * * The rebels regard it as one of their main sinews of war; and no principle of equity or just policy required, when the national occupation was itself precarious, that it should be spared from capture, and allowed to remain, in case of the withdrawal of the Union troops, an element of strength to the rebellion.”

No better evidence can be found of the value of cotton as an element of strength to the insurgents than is contained in this record. It there appears that the chief requirement of the Confederate Government from abroad was warlike supplies, and that an outward cargo of cotton of one-fourth the carrying capacity of a vessel would pay for a full inward cargo of munitions of war, and leave a very large surplus to the credit of that government.

As war is necessarily a trial of strength between the belligerents, the ultimate object of each in every movement must be to lessen the strength of his adversary or add to his own. As a rule, whatever is necessary to accomplish this end is lawful; and, as between the belligerents, each determines for himself what is necessary. If in so doing he offends against the accepted laws of nations, he must answer in his political capacity to other nations for the wrong he does. If he oversteps the bounds which limit the power of belligerents in legitimate warfare, as understood by civilized nations, other nations may join his enemy and enter the conflict against him. If in the course of his operations he improperly interferes with the person or property of a non-combatant subject of a neutral power, that power may redress the wrongs of its subject. But an aggrieved enemy must look alone for his indemnity to the terms upon which he agrees to close the conflict.

All property within enemy territory is in law enemy property, just as all persons in the same territory are enemies. A neutral owning property within the enemy’s lines holds it as enemy property subject to the laws of war, and if it is hostile property, subject to capture.

It has never been doubted that arms and munitions of war, however owned, may be seized by the conquering belligerent upon conquered territory. The reason is that if left they may, upon a reverse of the fortunes of war, help to strengthen the adversary. To cripple him, therefore, they may be captured, if necessary, and whether necessary or not must be determined by the commanding general, unless restrained by the orders of his Government, which alone is his superior. The same rule applies to all hostile property.

The rightful capture of movable property on land transfers the title to the Government of the captor as soon as the capture is complete, and it is complete when reduced to “firm possession.” There is no necessity for judicial condemnation. In this respect captures on land differ from those at sea.

The statement is made by you, and considered by me with the gravity it calls for, that the assertion that cotton is contraband of war would “imply an extension of the list of articles contraband of war agreed upon by the treaty of Paris.”

If by the treaty of Paris is meant the treaty of amity and commerce of 1778, between the United States and France, I have to say that this treaty was annulled by the act of Congress of July 7, 1798; was treated subsequently by the French Government as having ceased to be in force, and at the utmost was simply a bilateral arrangement between France and the United States, which excluded by its specifications the assumption that it laid down a general rule, its object being to give special advantages to France. But if, on the other hand, by “.the treaty of Paris” is meant the declaration of Paris of 1856, it is unnecessary to remind you that to this declaration neither Spain nor the United States was a party. (See Hall’s International Law, section 180.)

But even supposing that this declaration gave an authoritative enumeration of contraband articles, which it does not, such specification could in no sense be regarded otherwise than as illustrative Of the rule that a belli gerent is authorized to regard as contraband whatever is materially conducive to his adversary’s strength. I apprehend it to be the settled rule of international law that the question of contraband is to be determined by the special circumstances of each ease. Horses, for example, would not ordinarily be spoken of as contraband, yet all authorities agree that they may be so regarded when their supply is so essential to a belligerent that he can; not carry on operations successfully without them. A fortiori is this the case with cotton and the late Confederacy. You mistake the position of the United States, you will permit me respectfully to say, when you suppose that it is proposed by us formally to insert cotton on the list of articles contraband of war; We do not so propose. All we say is that when cotton is the prime military engine or muniment of one belligerent then it may be seized and treated by the other belligerent as contraband of war.

I have not been unwilling to consider the case in its relations to contraband because, even on that ground, viewing the cotton tinder investigation as a publicly recognized element in the military strength of of the Confederacy, I do not see that the claimants have any right to redress. But the seizure by the Government of the United States in 1865 is not to be narrowed to a question of contraband. The distinctions as to contraband have grown up from seizures from neutral vessels at sea, when the presumption arising from the ordinary inviolability of a neutral vessel has to be overcome before the seizure can be sustained. Here the seizure was not on board a neutral vessel, or on neutral territory invaded on ground of necessity, but on soil over which the United States had rights of sovereignty, not merely by constitutional title, but by the law of nations and by the law of war. Aside, however, from such municipal sovereignty, a belligerent, equally by the law of nations and the law of war, can seize and confiscate whatever he finds on his enemy’s territory conducing to the strength of such enemy. It is not needful, nor do I, therefore, say whether cotton purchased in the Confederacy during the war would be liable to seizure as contraband if found on a neutral ship.

I propose to strictly construe belligerent rights on the high seas j but the cotton, which is the subject of the present claim, placed as it was by its owners, the present claimants, under what you properly state to be the “strict surveillance “of the Confederate authorities, was, to the eye of the United States Government when it sought to reclaim the region where such cotton was Stored, as much the proper subject of belligerent seizure as would have been a park of artillery. The very fact you have stated, that the land blockade on the boundary between the United States and Mexico was, from the nature of things? more easily eluded than a maritime blockade, serves to impress this cotton still more strongly with a belligerent stamp and though I am unable to accept your statement of the looseness of the land blockade to the extent to which you carry it, yet that this condition of things was supposed to exist at the time the cotton was purchased explains the reason for its purchase, and why it was stored so near the border. Just in proportion to the difficulty of absolutely sealing the vast southwestern frontier of the United States rose, to the eager vision of Speculators, the probability that the cotton there stored could be readily sent across the frontier and its product returned in the shape of munitions of war. I desire to make no definition, either expanded or contracted, of contraband, but only to make and enforce the proposition that a belligerent has, in time of war, a right to seize munitions of war Or military engines in his enemy’s territory, or material stored for the purpose of conversion into such military engines. And such, unquestionably, was the ease with the cotton in question during its storage under the Confederate States control.

You maintain, however, that when this seizure took place the war was over. Undoubtedly the Confederate army of the Transmississippi Department had surrendered; but I have yet to learn that a war in which the belligerents, as was the case with the late civil war, are persistent and determined, can be said to have closed until peace is conclusively established, either by treaty, when the war is foreign, or, when civil, by proclamation of the termination of hostilities on one side and the acceptance of such proclamation on the other. The surrender of the main armies of; one of the belligerents does not of itself work such termination; nor does such surrender, under the law of nations, of itself end the conqueror’s right to seize and sequestrate whatever property he may find which his antagonist could use for a renewal of hostilities. The seizure of such property, and eminently so when, as in the present case, it is notoriously part of the war capital of the defeated government, is an act not merely of policy and right, but of mercy, in proportion to the extent to which the party overthrown is composed of high-spirited men, who are ready to submit only when their military resources are wholly exhausted, and not until then. This, in the summer of 1865, was the condition of things in the Southern and Southwestern States of this nation. The period was one in which the maintenance of military rule, and the taking into the possession of the United States of all the property capable of use as military resources of those States was essential to the permanent restoration of order, peace, and a common municipal law. This was so from the nature of things, and such was the course of public action. It is in accordance with this principle that the Supreme Court of the United States has formally decided that the late civil war terminated in the particular sections of the United States at the periods designated in the proclamations of the President of the United States. (Brown vs. Hiatts, 15 Wall., 177; Adger vs. Alston, ibid. 555; Batesville Institute vs. Kauffman, 18 Wall., 151.) And by the President’s proclamation of April 2, 1866, “the insurrection which heretofore existed in the States of Georgia, South Carolina, Virginia, North Carolina, Tennessee, Alabama, Louisiana, Arkansas, Mississippi, and Florida is at an end, and is henceforth to be so regarded.” Up to and before that date the insurrection in those States was held to exist. After that date it was held to be at an end.

It may be said, however, that while the seizure of this cotton may have been justifiable, the claimants should be paid for its value. A party whose goods are confiscated as tainted with insurgency can not claim compensation if he was himself implicated in such insurgency. Nowhere has this rule been more inflexibly applied than by the Spanish Government in the various insurrections in Cuba in which citizens of the United States have been charged with complicity. The United States Government has always accepted the position that, if its citizens ventured their property in support of such an insurrection, they must submit to the consequences. This position was maintained by Mr. Webster in 1851, when, as Secretary of State, he was called upon by a resolution of the House of Representatives to report upon certain wrongs claimed to have been inflicted by Spanish authorities in Cuba on John S. Thrasher, a citizen of the United States.

“If in that [a foreign] country,” said Mr. Webster, “he [a citizen of the United States] engages in trade or business, he is considered by the law of nations as a merchant of that county;” and in this and other cases, ruled in this Department on this principle it was held that citizens of the United States who engaged in insurrectionary movements in Cuba thereby exposed their property to seizure by Cuban authorities, and had no claim on this Government to secure indemnity for them from Spain.

This large purchase certainly was not made for legitimate business purposes in the Confederate States. The only value cotton had there was for blockade running, and there was little or no manufacture. It was at so high a price as to be almost unpurchasable for mill purposes, and the demand there for such purposes was comparatively trivial. The reason for its high price was the existence of a cotton famine abroad, created by the blockade of Southern ports and the watch kept on the boundary separating Texas from Mexico. Cotton, then, was bought and stored for the purpose of blockade running; and on this sole ground was justly subject to confiscation.

But there is another and still stronger ground for confiscation, which makes It immaterial whether the cotton was bought from the Confederate States Government or not, although the claimants, having sworn positively to the fact, should be precluded from setting up now an affidavit of a witness in denial. The claimants well knew, when they purchased the cotton, that it was controlled by the Confederate States laws, and subject to be used by that Government in such way as best to promote its military ends. The Confederate Government, long before the seizure in question, “by public notice,” to quote the language used by Justice Field in Radich vs. Hutchins, 95 U. S., 212, “had prohibited the exportation of cotton from the State of Texas to Mexico, except upon condition that the exporter should sell to them an equal amount for the benefit of the Confederate Government.” “At this time also,” he proceeds to say, “it was the declared policy of the United States to prevent all intercourse between the insurgent States and loyal States, and also between them and foreign countries, and thus to cut off from the insurgents the means of prolonging the existing war. In pursuance of this policy, the ports and coasts of those States were blockaded, commerce with their inhabitants was prohibited except as specially authorized under regulations of the Treasury Department, and property which eluded the blockade was subject to seizure and condemnation. The attention of the authorities was specially directed to prevent the exportation of cotton, upon which the insurgents chiefly relied to obtain the means for the continuance of their struggle.”

For an alien or his agents, so it was held, to contribute towards investing in cotton subject to the control of the confederacy, was, under these circumstances, giving “aid and comfort to the enemy of the United States,” and therefore no suit could be maintained on such a cause of action.

It is no answer, therefore, even supposing such a case to have been made out, that the claimants were non-resident aliens, who were not personally present, engaged in furthering the Confederate cause.

A non-resident alien [so says Chief-Justice Waite in Young vs. United States, 97 U. S., 63] need not expose himself or his property to the dangers of a foreign war. He may trade with both belligerents, or with either. By so doing he commits no crime. His acts are lawful in the sense that they are not prohibited. So long as he confines his trade to property not hostile or contraband, and violates no blockade, he is secure both in his person and his property. If he is neutral in fact as well as in name, he runs no risk. But so soon as he steps outside of actual neutrality, and adds materially to the warlike strength of one belligerent, he makes himself correspondingly the enemy of the other. “To the extent of his acts of hostility and their legitimate consequences he submits himself to the risk of the war into whose presence he voluntarily comes. If he breaks a blockade or engages in contraband trade, he subjects himself to the chances of the capture and confiscation of his offending property. If he thrusts himself inside the enemy’s lines, and for the sake of gain acquires title to hostile property, he must take care that it is not lost to him by the fortune of war. While he may not have committed a crime for which he can be personally punished, his offending property may be treated by the adverse belligerent as enemy property. He has the legal right to carry, to sell, and to buy; but the conquering belligerent has a corresponding right to capture and condemn. He enters into a race of diligence with his adversary, and takes the chances of success. The rights of the two are in law equal. The one may hold if he can, and the other seize. Collie, having been a non-resident or alien, was not a traitor; but in his foreign home he seems to have done as much as any one private person could do to aid and assist the insurgents in their struggle for supremacy.

I have read with interest the citations furnished by you from proceedings on alien claims before certain international commissions, and have caused careful search to be made in the records of these commissions; and though, in the multitude of cases adjudicated by them, there are many rulings which are obscure, and some open to serious objection on ground of injustice, and as being in conflict with international law, yet the general purport of the cases cited by you is understood by me to be merely that a sovereign is liable to make compensation for property seized by his forces for their consumption; not, therefore, covering the cases of a seizure which is a legitimate means of disabling the enemy.

But, aside from this criticism, I must be allowed to remind you that decisions of international commissions are not to be regarded as establishing principles of international law. Such decisions are molded by the nature and terms of the treaty of arbitration, which often assumes certain rules, in themselves deviations from international law, for the government of the commission. Even when there are no such limitations, decisions of commissions have not heretofore been regarded as authoritative, except in the particular case decided. I am compelled, therefore, to exclude from consideration the rulings to which you refer, not merely because they do not sustain the position for which they are cited, but because, even if they could be construed as having that effect, they do not in any way bind the Government of the United States, except in those cases in which they were rendered. In no case cited by you was it held that an alien, implicated in an insurrection, could recover from the Government at which the insurrection was aimed the value of goods which that Government seized in the territory which was the theater of war as part of the military stength of that insurrection. And that the present claimants were so implicated is conclusively established by the circumstances to which I have called your attention.

The claimants, it should be remembered, had an ample and early opportunity given them to recover the proceeds of their captured cotton could they have cleared themselves from implication in the insurrection, as above stated.

By an act of Congress approved March 12, 1863 (12 Stats., 820, incorporated in Revised Statutes, section 1059), it was provided to adopt the summary of Chief Justice Waite in Young vs. United States (97 U. S., 61) that property seized by United States authority in the Confederate States “when captured should be sold, and the proceeds paid into the Treasury of the United States. That being done, any person claiming to have been the owner, might, at any time within two years after the close of the rebellion, bring suit in the Court of Claims for the proceeds 5 and, on proof of his ownership of said property, of his right to the proceeds thereof, and that he has [had] never given aid or comfort to the present rebellion, receive the residue of such proceeds, after the deduction of any purchase-money which may have been paid, together with the expense of transportation and sale of said property, and any other lawful expenses attending the disposition thereof. (12 Stats., 820.) As to all persons within the privileges of the act the proceeds were held in trust, but, as to all others, the title of the United States as captor was absolute. Whoever could bring himself within the terms of the trust might sue the United States and recover, but no one else.”

As under the principle of United States vs. O’Keefe, 11 Wall., 178, the claimants had access to the Court of Claims within the limit specified to purge themselves at a time when the evidence bearing on the question was fresh from the charge of aiding and comforting the Confederacy, it is impossible not to view their failure to avail themselves of that opportunity and their holding back their claim for twenty years as greatly strengthening that charge. I do not desire to insist, as I well might under the circumstances, that the claimants’ are barred by the limitations of the statute. Municipal limitations undoubtedly do not, as a general rule, bar an international claim. It may, however, be rightfully maintained, as has frequently been done by both this Government and that of Great Britain, that when a sovereign rests his administration, so far as concerns claims against himself, primarily on his judiciary, and when such tribunals are open to aliens for redress, to them aliens claiming to be aggrieved should at first resort. I do not desire, however, to confine myself to this position, but to maintain that when claimants on whom ostensibly rests the charge of aiding an insurrection against the United States decline to press their claim before a tribunal before which, when the evidence was on all sides attainable, the charge could have been judicially disposed of, and then wait twenty years before bringing the claim before this Department, which, by reason of its organization, has no means of taking testimony as to disputed facts, and which, even if it could, would at this late date find these facts obscured by the lapse of time, then such claimants can not, under that common system of ethical jurisprudence which is acknowledged by Spain, as well as by ourselves, be admitted to a hearing unless they produce a strong array of testimony to disprove their culpability, but also give satisfactory explanation for their delay in presenting their ease. The same presumption may be almost as strongly drawn from the delay in making application to this Department for redress.

Time [said a great modern jurist; following herein a still greater ancient moralist], while he carries in one hand a scythe by which he mows down vouchers, by which unjust claims can be disproved, carries in the other hand an hour-glass, which determines the period after which, for the sake of peace and in conformity with sound political philosophy, no claims whatever are permitted to be pressed.

The rule is sound in morals as well as in law, and applies with peculiar force to claims infected with taints which the claimants refuse to submit to judicial examination when the facts are attainable. I may be unwilling to set up against any foreign claim a municipal statute of limitations, even where such a statute is sustainable in international law.

But this claim was based upon transactions within the theater of an extensive armed insurrection against the United States, and necessarily connected with the insurrectionary government; and the first opportunity of a hearing should have been taken, either in this Department or in the Court of Claims, which was open to the claimants, to have shown they were not chargeable with complicity.

They never approached the Court of Claims at all, nor this Department until twenty years had elapsed.

In view, therefore, of all the circumstances of this case, and in deference to the acknowledged rules of jurisprudence of civilized nations, I am constrained to deny the liability of the Government of the United States to render the compensation asked for by you in behalf of Messrs. Larrache & Co., the claimants.

Accept, etc.,

T. F. Bayard.