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in the case of the United States vs. Klein, 13 Wall., p. 128. At page 136, the Chief Justice, delivering the opinion of the Court, declares in what cases and how property in the insurgent States was affected by the fact of the civil war. He divides the property in the insurgent States into four classes.
“1st. That which belonged to the hostile organizations or was employed in actual hostilities on land.
“2d. That which at sea became lawful subject of capture and prize.
“3d. That which became the subject of confiscation.
“ 4th. A peculiar description, known only in the recent war, called captured and abandoned property."
At page 137 he says: The Government recognized to the fullest extent the humane maxim of the modern law of nations, which exempts private property of non-combatant enemies from capture as booty of war. Even the law of confiscation was sparingly applied. The cases were few indeed in which the property of any not engaged in actual hostilities was subjected to seizure and sale.” And again, at page 142, he says: We conclude, therefore, that the title to the proceeds of the property which came to the possession of the Government by capture or abandoned, with the exceptions already noticed, was in no case divested out of the original owner.”
It is not easy to reconcile these doctrines with the grounds now taken for the United States in these cases, especially when we remember that they were laid down by the Supreme Court of the United States in a case where the plaintiff claimed the proceeds of the very species of property (cotton), the destruction of which is is the ground of reclamation here.
It would be superfluous, in view of such an exposition of the public law by the Supreme Court of the United States in such a case, to re-open the discussion.
I feel, therefore, authorized to assert, as fully recognized by the United States through its highest tribunal, two propositions :
1st. That it is a maxim of the modern law of nations that the private property of non-combatant enemies on land is exempt from capture as booty of war; and that this maxim was fully recognized, in theory at least, by the United States in the exercise of their belligerent rights in the late civil war,
2d. That the article of cotton, the property of non-combatants, was no exception to this general maxim; indeed, the great mass of property; the proceeds of which were allowed to be recovered by citizens suing in the Court of Claims, of this precise character.
Neither by the predicament of this property, therefore, (as being found in the enemy's country) nor by anything peculiar in
the nature of the property itself, did it cease to be the lawful subject of property in the hands of non-combatant inhabitants. And when Great Britain and the United States entered into the Treaty of Washington, and provided for the adjudication of claims of Her Majesty's subjects, arising out of acts against their property, it is undeniable that such property so situated was, and, in the nature of things, must have been within the contemplation of the parties. If it had been intended to except it, such exception would have been plainly expressed.
As to the citizens of the United States themselves, we have seen that no such exception was ever set up or pretended. Whether taken by the United States as captured or abandoned, the ownership of the loyal proprietor was admitted, and his right to the proceeds on proof thereof was never questioned. Upon what principle, therefore, can neutral aliens peaceably residing in the United States upon the faith of Treaties of amity and commerce be placed upon a less favorable footing? Can it be maintained for a single moment that the property of these was subject to depredation and destruction, while like property of the citizens of the country was recognized as entitled to protection ? Such a distinction can find no support either in reason or authority.
The cotton of these claimants, therefore, was British property within the protection of the Treaty, and whether it was seized and converted into money by the United States, or destroyed for the purpose of crippling the resources of the insurgents; in other words, to prevent its falling into their hands, can make no difference in principle. In both cases equally the property is taken and devoted to such uses as may be most beneficial to the belligerent seizing it, and in both cases is equally lost to the true owner,
In addition to the argument of the special Counsel in this case, and in support of the principles there maintained, we have laid before the Commission the report of the Committee on Claims of the Senate in the case of Dr. Best, as containing a review of all the authorities bearing upon the question whether the destruction of private property, in pursuance of a policy which regarded this as the best means of reducing the insurrectionists to submission was distinguishable in point of principle from the conversion of the same property into money, and thus putting it into the public treasury, or applying the property in kind to the public service.
The great demands upon the time, attention, and learning of the Counsel for the United States, have doubtless prevented him from comprehending the use which alone was sought to be made of this Report in the present case. Very slight attention, candidly given to the argument heretofore filed for the claim, will show that the Counsel has inadvertently, of course, perverted its meaning and intent. It is difficult to understand how any person could really believe that it was intended to maintain that an act done avowedly under a claim of belligerent rights was sought to be confounded with the exercise of what is called the eminent domain of
the sovereign. At p. 5 of the claimant's brief (the page cited by the Counsel for the United States), it plainly appears that no such confusion of ideas was attempted.
It is argued a fortiori, and upon principle that because in the exercise of the undeniable right of eminent domain, compensation is due under the Constitution of the United States itself, the same consequence must follow under this Treaty in the case of the private property of a British subject appropriated in the same manner in the alleged exercise of a supposed belligerent right. If the cotton in question was the property of Her Majesty's subjeets, and was taken and appropriated or destroyed by the United States for the public service, it is surely no example of “great ingenuity and greatly to be admired,” to extract from this Report authority to maintain the claims now under consideration, since it could hardly be denied that to show that citizens of the United States could maintain claims for indemnity against their own Government under like circumstances, tends promptly to support the assertion of similar rights by British Subjects under this Treaty. The fact that the cases cited in Mr. Howe's Report were, as alleged, all cases of destruction or appropriation of property of citizens of the United States within their own territory, does not seem to me to have any significance in the present question. Certainly this Commission must retrace its steps from the beginning if it now discovers that British subjects can have no claims here arising out of acts against their property, if that property was situate within the insurgent States. With very few, if any exceptions, such property was either situate within the insurgent States or found upon the high seas, and not within the military lines of the United States during the civil war.
If it be now held that the United States had the absolute right, without the liability for any indemnity entirely to destroy such property, it seems necessarily to follow that they are not responsible for any minor injury or appropriation.
The case of Mitchell v. Harmony, grew out of facts which occurred, not in the United States, but in Mexico, with which the United States were then engaged in war.
The effect of this case is not to be avoided by the assertion that the language of the Chief Justice is merely obiter dictum. In no just sense is it liable to such criticism. It was of the very essence of the question whether the destruction of the property in that case was in the public service or by an unwarrantable private trespass, and it was only because the Court held that the act complained of was not required by the public service, that the defendent was held to be personally responsible in that action. He had set up the ground in his defence that the Government and not he was liable; it became, therefore, necessary for the Court to consider and determine the effect of this defence and how far it applied to that case, and in determining that, the Court used the language which the Counsel for the United States characterizes as obiter dictum. Subsequently, however, the United States believing the officer to have acted bona fide, and for the public good, assumed the responsibility and paid the judgment which had been rendered against him.
The case of W. S. Grant, v. The United States, (1 Court of Claims, 41), heretofore cited, does certainly decide that property destroyed under the same military necessity as is here alleged by the United States, and to prevent its falling into the hands of the same belligerent in the same war, was property taken for public use. The language of the Constitution is simply that private property shall not be taken for public use without just compensation. We suppose it is to be admitted on all sides, and settled by repeated decisions of this Commission, that the property of Her Majesty's subjects in the United States, whether in the insurgent or loyal States, was not liable to be taken by the United States for public use without just compensation; and Grant's case is a direct and controlling authority to show that property destroyed as was that of these claimants, is property taken for the public use. But the opinion of the Court in that case is not based exclusively on the Constitution or laws of the United States. It proceeds upon the doctrines of the public law common to all civilized nations. The Court in that case, after citing authority from the publicists, said: “The limitation imposed on the Government of the United States in the exercise of its right of eminent domain by the fifth article of the Constitution is a solemn recognition of this settled and fundamental law of the States, and binds the Government to the observance of the principles of justice and right in its dealings with the citizen with the force of organic law.
It is plain, therefore, that these cases do not depend upon the doctrine of eminent domain, but rest upon the broader foundation of the public law and the principles of natural justice and equity.
(Signed) J. M. CARLISLE,
Her Britannic Majesty's Counsel.
APPENDIX No. 39..
The South Carolina Cases."
No. 33.-Brown and Sharp v. The United States.
No. 371.- Ernest Dronke v. The United States.
ARGUMENT FOR THE UNITED STATES ON FINAL SUBMISSION.
THESE twenty-four causes are all for damages for the alleged destruction of property by the United States forces in the States of South Carolina and Georgia. They turn mainly upon the same questions, and are, therefore, discussed together.
These questions have been heretofore, to some extent, discussed in the arguments filed by the undersigned in the case of Samuel Hall Haddon, No. 107, including the comments by the undersigned on the Report of Senator Howe, filed by Her Majesty's" counsel in that case as a further argument for the claimant, which arguments the undersigned begs may be considered in connection with this.
Some few questions pertinent to some of the individual cases above-named will be briefly alluded to separately in the conclusion of this argument.
No. 33 claims 1,4931. 6s. Od. the alleged value of 78 bales of cotton alleged to have been destroyed by the Federal troops, at Camden, South Carolina, on the 25th February, 1865.
No. 37 claims 15,837 dollars for a stock of painters' and gilders' goods, together with musical instruments, pictures, engravings, paintings, &c., including “one large oil painting by Tichen," valued at 4,000 dollars, alleged to have been destroyed by fire, at Columbia, South Carolina, on the occupation of that place by the Federal army, on the 17th and 18th February, 1865.
No. 39 claims 1,9077. 1s. Od., for 135 bales of cotton burned at Camden.
No. 103 claims 279,160 dols. 30 c. for cotton burned at Columbia, Camden, and Cheraw, and for damages on account of 773 bales of cotton seized by the Treasury Department, and subsequently released to the claimants.
No. 163 claims 5,105 dollars for household goods, library, &c., burned at Columbia.
No. 179 claims 6,710 dols. 80 c. for cotton and personal effects, and an interest in goods in a hardware store and warehouses burned at Camden.
No. 190 claims 800 dollars for watch, jewellery, &c., stolen by soldiers at Columbia, and household goods burned at the same place.
No. 193 claims 25,000 dollars for 63 bales of cotton alleged to have been burned at Covington, Georgia, on the 22nd July, 1864.