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but it was done to prevent the carrying on of the war, and to cripple the resources of the Confederate Government.."
In many of the cases in which evidence was taken on the destruction of Camden as above cited, the evidence is general, and to the effect that cotton, warehouses, &c., were burned by the Federal troops. The testimony of Messrs, Bell, Marks, and Gerald, above cited, shows conclusively that Captain Duncan executed his orders in a humane and temperate manner, avoiding all unnecessary destruction of property, and seeking simply to execute his orders with the utmost kindness and forbearance consistent with the duty he had to perform.
The evidence of acts of pillage by individual soldiers is no more than ordinarily in the best disciplined troops accompanies an invasion of a town by an army or detachment. Stragglers will of course escape from the ranks and perpetrate, to a greater or less degree, acts of lawlessness and pillage. Camp-followers, too, not belonging to the army, will be found hovering in the rear of every expedition and raid to avail themselves of every opportunity offered for plunder.
There is certainly nothing in the proof as to either of the claims alleging pillage of property at Camden which can can go to charge the United States with the consequences of such acts.
Graveley's wines are shown to have been consumed and destroyed by lawless soldiers who broke in at the rear of the store, and plainly not by authority or licence of any authorized officer. (See Depositions in No. 292, Book 1, pages 1 to 8.)
The evidence of the coloured witnesses, who pretend that high officers were present, is evidently utterly unworthy of credit.
John Carlos testifies (p. 8) that "one of the officers present was a major, another was a captain. He knows the distinction in their badges of rank.
A major has two stars on his shoulder-strap; a colonel three.
Bearing in mind that the expedition was under the command of a captain of cavalry, Duncan, and the utter worthlessness of this evidence is apparent. Captain Duncan's entire conduct, as shown by the witnesses above cited in relation to the destruction of cotton, was most considerate and temperate; and the proof demonstrates the unfounded character of the pretence that he and his soldiers were engaged in indiscriminate pillage.
The allegations in the memorial of Jacobs, No. 236, as to the destruction of his hotel furniture, are entirely unsustained by evidence: and the claimant, in his own deposition, (Book 2, pp. 25 to 44,) makes no reference to this claim nor pretence of its truth.
Conway Bell, who in his Memorial makes such distinct and specific averments that his private apartments were entered and his furniture and personal effects carried off by troops of the United States, and in the affidavit filed with the Memorial also alleges the breaking open of his store and the carrying off of his stock of hardware, (Memorial, p. 7.) when put upon the stand as a witness in his own behalf, entirely fails to support any such statements.
(See his evidence, Depositions for Claimant, pp. 1 to 5.) And no witness on his behalf testifies to any such acts of the soldiers in pillaging Bell's goods, as alleged in the Memorial, except Abram Marks, (p. 13,) who gives a marvellous item of testimony of the soldiers breaking into Bell's store on the day before the warehouses were burned, with axes, and "coming out with meat and other goods in bags." Considering that Mr. Bell makes no claim in respect to meat or any similar property, and that no one word appears elsewhere through all the cases of evidence to show any such acts of the soldiers on the day before the burning of the cotton, it is impossible to give the slightest weight to this testimony. That such acts were ever committed with the permission or knowledge of the officers in command, there is not the slightest evidence anywhere; and with the evidence before the Commission as the conduct of Captain Duncan and his command, in regard to the lawful destruction which he was sent to accomplish, certainly no such acts of pillage can be believed to have taken place by his permission or authority.
V. It is unnecessary to go over the remaining cases in detail. Many of them are, beyond question, greatly exaggerated, as in the case of Joseph J. Browne's 4,000 dollars' picture, “ by Titchen,” and in the enormous claims of David Jacobs, sustained only by his own oath.
Wood & Heyworth, No. 103, in addition to cotton destroyed, claim damages for the alleged wrongful taking and detention of 773 bales of other cotton seized by Treasury agents at various places in South Carolina, “ upon the suppression of the rebellion,” and subsequently surrendered by the Treasury Department to their agent Gibbes, but as they allege, after having suffered depreciation by loss of markets, abstraction of cotton from the bales, and expenses paid; amounting in all to 56,000 dollars and upwards. The Memorial does not allege the date of the seizure. The amended Memorial impliedly shows it to have been after 3d January, 1866, and the deposition of Gibbes (Book 4) distinctly shows that the cotton was not seized until after that date, he having been arrested on that day by order of Mr. Callicott, and compelled to disclose the names of the owners of his cotton.
Of course, this claim being out of Treaty time, this Commission will dismiss it from further consideration. But it may be noted, that no word of evidence is given to sustain the claims for the abstraction of cotton; and the evidence filed for the defence (Proofs for Defence, pp. 2 to 6) shows that the cotton was delivered to Gibbes, the agent of the claimants, on his express discharge of all claim for detention, certificate that it was seized on probable cause, and indemnification of the United States against all claims in respect of the cotton. The act of the agent was, of course, the act of his principals, and they certainly cannot avail themselves of the release given by the United States to him and repudiate at the same time his discharge of claims.
In the cases of Alexander Collie, No. 376, and Theodore
Andreae, No. 459, the proofs filed for defence in their cases respectively from the rebel archives show these men actively and efficiently engaged in the support of the rebellion. The testimony of Andreae, which was taken in the case of Alexander Collie, No. 376, in that of George Collie, No. 458, and in his own case, No. 459, fully sustains the evidence furnished from the archives.
In the case of Cowlam Graveley, No. 292, the claim for the ships “Sarah Starr" and the “ Aigburth was, as we have seen, disallowed by the Commission some time since. A reference to the proofs in the Prize Court, filed here as proofs for claimant, in Graveley's case, would abundantly show the condemnation fully sustained by the facts of the case. And as proofs for defence there is filed in his case a letter from him to the Confederate Secretary of the Treasury, saying that he was engaged in running the blockade in the interest and for the benefit of the Confederate Government, and tendering the services of his blockade-running vessels to them.
In the case of Scott, Bell & Co., No. 392, the proofs show that they were never the owners of the cotton claimed by them.
In Depositions for Claimants (Book 1, p. 12,) appears the contract by Gibbes to these claimants to sell to them 250,000 pounds of cotton, “to be delivered in good merchantable condition at the port of Charleston, Savannah, or Mobile, as may be preferred, and as soon after the opening of the ports of the Confederates States as possible.” To mark the character of the contract more strongly, it recites the deposit of 50,000 dollars in Confederate bonds to secure the delivery; authorizes the claimants to reimburse themselves in case of failure of delivery out of those bonds; and contains the further provision that, if the claimants shall prefer, Gibbes, in place of the delivery of the cotton, will pay the amount advanced (6,0001.) with legal interest, and a commission of ten per
the advance. Here is certainly no sale of cotton and no passing of title to the same.
It was a contract for the delivery of cotton ou the opening of the ports of the Confederate States, unless the claimants should elect to take their money instead ; in which case, they were entitled to take the money. It was, in effect, a mere loan of money by the claimants to Gibbes, coupled with a provision for payment in cotton at a fixed rate, or in cash, as they themselves might elect.
Gibbes says, (Book 2, p. 3,) that he sold the cotton, in London, in February, 1863, and that, on his return from Europe, the cotton was marked by him and registered with the British Consul at Charleston; but it is plain that this did not transfer the title of the cotton. Scott and Bell were not to receive it until the Confederate ports were opened ; then it was to be delivered at one of the ports named, and it was to depend upon their election whether they would themselves take cotton or money. If they should elect to take cotton, any cotton which conformed to the terms of the contract would pay them; and Gibbes, setting apart certain bales, which he caused to be marked S. B. & Co., and registered by the
British Consul, certainly did not make one step towards passing title of that property to them. It was undoubtedly done solely with a view of covering it with the pretence of British ownership, while the case shows conclusively that no such ownership in fact existed.
It will be borne in mind that Bell himself testifies (Book 1, p. 5) that, after the execution of the contract, they had no communication whatever with Mr. Gibbes.
(Signed) ROB. S. HALE,
Agent and Counsel of the United States, &c. Dated July 30, 1873.
APPENDIX No. 40.
No. 33.-Brown and Sharp v. The United States.
To be used in the South Carolina Cases."
Remarks of Her Britannic Majesty's Counsel upon the Principles of
the Law of Nations, involved in the discussion of these cases, by way of Rejoinder to the Argument filed for the United States.
THE defence in these cases, which has been authoritatively presented to this Commission, deliberately plants its foundation on the extreme rights of war laid down by some of the older publicists, but which are condemned uniformly by those of later date, and by the more enlightened and humane sentiment of all the civilized nations of the world at the present day.
The learned Counsel for the United States, in the paper which we are now considering, lays down in the name of his Government, a series of propositions which seem to belong to an earlier age of the world and a condition of the family of nations, which has happily long since given place to a more enlightened and humane
His first proposition is, in effect, that the modern law of nations recognizes the right of belligerents indiscriminately to ravage and lay waste the enemy's country. His own words are :
“A belligerent in the enemy's country may lawfully destroy any property, the possession or control of which may in any degree contribute to sustain his enemy and strengthen him in his ability to carry on the war.”
In order that his meaning may not be misunderstood, he is careful to say a few lines below : “This rule of course includes the private property of individual enemies, or persons domiciled in the enemy's country, or which, by its situation or character, is liable to the treatment of enemy's property. Indeed, it is in respect of such private property that the rule is ordinarily applied.”
For this monstrous claim of right the learned Counsel confidently
vouches the authority of Vattel (p. 364, sec. 161; pp. 366 and 367, sec. 166). But it is only necessary for the Commissioners to read the paragraphs cited and the immediate contexts to see that he preaches no such doctrine as that of the learned Counsel. In section 161 the author is undoubtedly speaking of the public property of an enemy; and in section 166 he refers to the destroying of provisions and forage, that the enemy may not find subsistence there, the sinking of ships, &c., and adds : "All this tends to promote the main object of the war; but such measures are only to be pursued with moderation, and according to the exigency of the case.
The second proposition of the brief for the United States is, that “a belligerent may also, by way of punishment, ravage the country of an enemy, &c." For this proposition the learned Counsel again cites Vattel (sections 162 to 173). In section 167 this author speaks of such acts as "dreadful extremities, even when we are forced into them ; savage and monstrous excesses when committed without necessity !” He then proceeds to give two reasons which may authorize them, viz. : (1) The necessity of chastising an unjust and barbarous nation for the purpose of checking her brutality;" and (2) The ravaging of a country to make it serve as a barrier against an enemy“ whose incursions we are unable to check by any other means." These are the cases in which we may be forced into these "dreadful extremities ;" these are the only circumstances which Vattel says constitute necessity. It cannot be pretended that there is any analogy between such cases and those now before the Commission.
Indeed, whatever deductions may be hastily drawn from occasional passages of Vattel, it is undeniable that his work, taken as a whole, breathes the spirit of moderation and justice between nations, and condemns all such acts as those out of which these claims arise. Within the limits of the citation made by the learned Counsel, Vattel thus expresses himself (sec. 13).
“The pillage and destruction of towns, the devastation of the open country, ravaging, setting fire to houses, are measures no less odious and detestable on every occasion, when they are put in practice without absolute necessity, or at least very cogent reasons. But as the perpetrators of such outrageous deeds might attempt to palliate them under pretext of deservedly punishing the enemy, be it here observed that the natural and voluntary law of nations does not allow us to inflict such punishments, except for enormous offences against the law of nations; and even then it is glorious to listen to the voice of humanity and clemency, when rigour is not absolutely necessary. Cicero condemns the conduct of his countrymen in destroying Corinth to avenge the unworthy treatment offered to the Roman Ambassadors, because Rome was able to assert the dignity of her Ministers without proceeding to such extreme rigour.”
Since Vattel published his treatise (1758) the writings of succeeding publicists, and the authoritative declarations of enlightened Governments, have concurred in more distinct utterances