Nations sometimes do grant relief even for ravages of war, not as a tions, but having held her to her constitutional obligations, and having insisted that their political relations with foreign powers were in no wise affected by the insurrection in the Southern States, and that the Government of the United States was rightfully supreme in Louisiana and the other States in rebellion, and having finally maintained its authority over those States, its liability to Great Britain for violation of these treaties by those respective States remained precisely as if there had been no insurrection or civil war.

Her Majesty's counsel further contended that, as a principle of international law, if the rightful government of a country be displaced and the usurping government becomes liable for wrongs done, such liability remains, and devolves on the rightful government when restored; that this principle equally applied when the usupation was only partial; that the restored and loyal government of Louisiana was liable for wrongs done by the insurrectionary government of the same State; and that it was only by the provisions of the Constitution of the United States that the State of Louisiana was prevented from being compelled to discharge that liability toward foreign govern ments, and that on this ground the Government of the United States must be held responsible for the acts of the State of Louisiana.

He cited in support of these propositions the treaties of 1815 and 1827 between the United States and Great Britain, (8 Stat., p. 228, art. 1; id., 361, art. 1 ;) Phillimore, vol. 1, pp. 86, 94, 139; Wheaton, p. 77; Constitution of the United States, art, 1, sec. 10; Works of Daniel Webster, vol. 3, p. 321; id., vol. 6, pp. 209, 253, 265; U.S. Att. Gen. Op., vol. 1, p. 392; The United States vs. Palmer, 3 Wheat. Sup. Ct. R., 210; The Collector vs. Day, 11 id., 113, 124 to 126; The Prize Cases, 2 Black, 636; the treaty between the United States and Great Britain of August 9, 1842, (8 Stat., 575, art. 5;) and the acts of Congress of December 22, 1869, (16 Stat., 59, 60,) and of April 20, 1871, (17 id., 13 to 15.)

The argument on behalf of the United States was summed up as follows:

"First. That whatever may be the relations of the separate States of the Union to the Government of the United States, it is manifest that no responsibility can attach to the United States for the destruction of the claimant's property under color of the authority of the State of Louisiana, because its destruction was not authorized by any officials representing or authorized to represent or act for the State of Louisiana under the Constitution and laws of the United States. There can be no legitimate officers of a State to constitute its government, except such as have taken an oath to support the Constitution of the United States. All others are usurpers and pretenders. But, further, a State of the Union has no political existence which can be or has been recognized by Great Britain, except as a part of the United States, in subordination to the National Government. The rebels, who, by usurpation, undertook to act for the State of Louisiana, declared their action to be in behalf of the State, which they claimed as a component part of another and hostile nation

"Secondly. The destruction of the claimant's cotton was done under the order of the commander of a military force engaged in hostilities against the United States, and whose acts Great Britain had recognized as those of a lawful belligerent, having all the rights of war against the United States that any foreign invader could have had. The men professing to act, as the local authorities, in concurring in the order of destruction, acted as the assistants and allies of the hostile and belligerent power, and subject to its control. It is as absurd to hold the United States responsible in the case of Hanna, as it would be to hold France responsible for the destruction of the property of a British subject in the part of France held by the German armies in the late war, on the ground that a French official, at the head of some arrondissement or commune, might have joined in the order of the German forces for its being done, he having been put in office or retained there by the German forces for the very purpose, and having first renounced his allegiance to France and taken an oath of allegiance to Germany."

The commission unanimously sustained the demurrer in the following award:

"The claim is made for the loss sustained by the destruction of cotton belonging to the claiment by men who are described by the claimant as rebels in arms against the Government of the United States.

"The commissioners are of opinion that the United States cannot be held liable for injuries caused by the acts of rebels over whom they could exercise no control, and which acts they had no power to prevent.

"Upon this ground, and without giving any opinion upon the other points raised in the case, which will be considered hereafter in other cases, the claim of John Holmes Hanna is, therefore, disallowed."

Mr. Commissioner Frazer read an opinion, which will be found in the appendix H. This was among the earliest of the decisions of the commission, and it is understood that in consequence of it a large number of claims of similar character awaiting presentation were never presented to the commission.

matter of strict right by principles of international law, but as a gratuitous act of benignity.118

Opinion of Mr. Commissioner Frazer, in the case of John H. Hanna vs. The United States No. 2, (See p. 58, ante.)

This is a claim for the destruction of 819 bales of cotton belonging to the claimant by rebels in arms against the United States. The property was destroyed in Louisiana and Mississippi in 1862 by the confederate forces, with the concurrence of the rebel authorities of Louisiana, one of the Confederate States so called. Her Britannic Majesty had recognized the co-called Confederate States as a belligerent, and the contest of arus then prevailing as a public war. After such recognition by the sovereign, the subject of such sovereign cannot, in his character as such subject, aver that the fact was not The act of his government in that regard is conclusive upon him.

so.

Aside from this recognition by Her Majesty, it is public history, of which this commission will take notice without averment or proof, that the confederate forces were engaged at the time in a formidable rebellion against the Government of the United States. It may not be important to the question in hand, therefore, that Her Majesty had taken the action already stated.

It should be further observed that the particular "State of Louisiana" which coucurred and participated in the destruction of the claimant's property was a rebel organization, existing and acting as much in hostility to the Government of the United States as was the Confederate States so called. It was in form and fact a creature unknown to the Constitution of the United States, and acting in hostility to it. It was an instrumentality of the rebellion. Its agency, therefore, in the spoliation of this cotton cannot be likened to the act of a State of the American Union claiming to exist under the Constitution; and any argument tending to show that under international law the National Government is liable to answer for wrongs committed by such a State upon the subjects of a foreign power, can have no application to the matter now under consideration. The question presented is simply whether the Government of the United States is liable to answer to a neutral for the acts of those in rebellion against it, under the circumstances stated, who never succeeded in establishing a government. It is not deemed necessary in this case to inquire whether the claimant, having a commercial domicile in Louisiana at the time, is to be deemed a British "subject of Her Britannic Majesty" in the sense of Article XII of the treaty which creates this commission. That question is argued by counsel, but it is thought better to meet the question above stated for the reason that the case will thereby be determined more distinctly upon its

merits.

The statement of the question would seem to render it unnecessary to discuss it. It is not the case of a government established de facto displacing the government de jure; but it is the case merely of an unsuccessful effort in that direction, which, for the time being, interrupted the course of lawful government without the fault of the latter. Its acts were lawless and criminal, and could result in no liability on the part of the Government of the United States.

118 Senator Howe, in Senate Report No. 412, third session Forty-second Congress, February 7, 1873, said:

"In September, 1871, immediately upon the close of the Franco-German war, France, although defeated and subjected to the payment of a fine of 3,000,000,000 of francs to her conquerors, did not ask to avoid the obligation of making compensation to her despoiled subjects. Accordingly, the national assembly provided not only for the payment of all private damages inflicted by the French authorities, but also provided for the repayment of all exactions made upon French subjects in the name of taxes by the German authorities. The same decree appropriated 100,000,000 of francs, to be placed at once in the hands of the ministers of the interior and of finance, to be apportioned between the most necessitous victims of the war, and appropriated a further sum of 6,000,000 of francs to be distributed by the same ministers among those who suffered the most in the operations attending the attack made by the French army to gain entrance into Paris.' A translation of the whole decree is appended to this report."

[Official journal of the French republic, Versailles, September 11, 1871.] The National Assembly has adopted-the President of the French Republic promulgates the law, the tenor of which is as follows:

Considering that, during the late war, the portion of the territory invaded by the enemy bore exactions and suffered devastations without number; that the sense of patriotism which animates the heart of the French people enjoins upon the government the duty of indemnifying those who have, in the common conflict, undergone these exceptional privations, the National Assembly, without intending to depart from the principles laid down in the law of July 10, 1791, and the decree of August 10, 1853, decree:

In the discussions which preceded the "Provisional Articles" of November 30, 1782, (8 Stat., 54,) and the "definitive treaty of peace," ARTICLE 1. An indemnification will be allowed to all those who have borne, during the invasion, the contributions of war-requisitions, either in money or in kind, fines, and material damages.

ART. 2. These contributions, requisitions, fines, and damages will be verified and estimated by the cantonal commissions who act for the time being under the direction of the minister of the interior. A departmental commission will revise the labor of the cantonal commissions and fix the definite sum-total of the losses proven. This commission will be composed of the prefét, president, four counsellors-general, designated by the council-general, and of four representatives of the ministers of the interior and finances.

ART. 3. When the extent of the losses shall have been thus verified, a law will fix the sum the state of the public treasury will permit to be appropriated for their indemnification, and determine the distribution of the same.

A sum of one hundred millions will be immediately placed at the disposition of the minister of the interior and of the minister of finances, and apportioned between the departments pro rata, according to the losses respectively proven, to be distributed by the prefét, assisted by a commission appointed by the council-general and taken from its number, between the most necessitous victims of the war, and the communes the most involved in debt. This first allowance will be part of the sum-total assigned to each department to be distributed among all the claimants.

ART. 4. A sum of six million francs is placed equally at the disposition of the ministers of the finances and of the interior, to be, without further legislative enactment, distributed among those who suffered the most in the operations attending the attack made by the French army to gain re-entrance into Paris.

ART. 5. Independently of the preceding provisions the contributions in money collected under the title of taxes by the German authorities will be settled as follows: SECTION 1. The communes that have paid any sums under the title of taxes will be re-imbursed their advances by the treasury.

SEC. 2. The tax-payers who will prove payment of any sum under the same title, either into the hands of the Germans or to the French municipal authorities, will be permitted to apply the whole sum on account of their contributions for 1870 and 1871. They will be required to produce their vouchers within the period of a mouth. SEC. 3. The settlement specified above will comprise:

1. The whole sum of the French direct tax.

2. The double of that tax, as showing the indirect taxes levied by the Prussians. All that which in the payments will exceed the direct tax doubled will be considered as simple contribution of war, and governed by the principles laid down in the preceding article.

Deliberated in public sessions, at Versailles, July 3, August 8, and September 6, 1871. President:

Secretaries:

President of the republic:

Minister of the interior :

JULES GREVY.

PAUL BETHMONT.

VISCOMPTE DE MEAUX.

PAUL DE RÉMUSAT.

BARON DE BARANTE.

MARQUIS DE CASTELLANA.
N. JOHNSTON.

A. THIERS.

F. LAMBRECHT.

By the act of March 30, 1862, 2 Stat., 143, the United States, subject to certain limitations, “guarantee to the party injured an eventual indemnification in respect to ” certain property "taken, stolen, or destroyed" by Indians, under certain circumstances. The act of June 30, 1834, 4 Stat., 731, does the same. But these look to reclamation from Indian tribes. (S. Rep. of Committee of Claims, No. 12, 1st session 43d Cong., January 19, 1874.

And see act February 28, 1859, sec. 8, 11 Stat., 401; joint resolution June 25, 1860, 12 Stat., 120; act July 15, 1870, sec. 4, 16 Stat., 360; act May 29, 1872, sec. 7, 17 Stat., 190; and see as to Indians H. Rep. No. 780, 1st session 43d Cong., Committee on Indian Affairs on claim of Fletcher.

Certain other statutes secure compensation for damage done by the enemy: Act April 9, 1816, 3 Stat., 263, sec. 9. (See as to this American State Papers, Claims, 486, Report December 17, 1816.) Act March 3, 1817, 3 Stat., 397, sec. 1, injury to military de

of September 3, 1783, (8 Stat., 80,) between Great Britain and the United States, the subject of indemnity for war-damages was considered.

posits. Act March 3, 1849, ch. 129, sec. 2, 9 Stat., 414, loss or destruction of property in service by contract or impressment.

The argument on behalf of Frederick City, in H. Rep., Committee on War-Claims, 1st session 43d Cong., June 22, 1874, says:

"Among other instances in which compensation for injuries inflicted by the public enemy has been granted by Congress, without specially distinguishing the particular case in exercising its bounty, we would mention the following acts, the body of which we quote, and which, it will be seen, suggest no reasons for affording the relief but the bare statement of the loss sustained. Possibly, the evidence on which these acts were based may have disclosed some grounds of discrimination; but as these are omitted in the laws themselves, while in other acts of a kindred character they have been expressed, it would seem that, in the cases in question, Congress did not consider itself bound to confine its generosity within limitations suggestive of legal responsibility, and thus indicated the policy of extending relief whenever a citizen had been subjected to a greatly disproportionate share of loss in a common struggle, even at the hands of those with whom we are at war."

The precedents indicated are as follows: Act of 1822, chap. 65: William Henderson compensated" for value of his property destroyed by the enemy during the late war, at Monday's Point, Virginia;" act of 1832, chap. 271: John Brunson, "for house and store in the village of Buffalo, N. Y., destroyed by the enemy;" act of 1832, chap. 292: Augustine Taney, "for destruction by fire of buildings on Soller's Point, near Baltimore, by the enemy during the late war;" act of 1836, chap. 33: Legal representatives of Thomas Beacham, "for the value of a barn in Northumberland County, Virginia, burned by the British in the late war;" act of 1836, chap. 241: Heirs of William Forbes, "for certain houses which were destroyed at Kinsella, Virginia, by the enemy in the late war with Great Britain;" act of 1836, chap. 307: Charles Cattell, "for tobacco destroyed by British or American troops in Maryland;" act of 1838, chap. 43: James Pattison, "for his house and property on the Patuxent, destroyed by British troops;" act of 1838, chap. 49: William Eadres, "for his house burned by the British at Sodus, New York;" act of 1842, chap. 212: John King, "for dwelling-house burned by the British in Richmond County, Virginia, during the late war."

This list might be extended, but is probably sufficient for illustration. These cases, with many similar ones, may be found in United States Statutes at Large, vol. 6, Private Laws, to which reference is made.

Act June 25, 1864, 13 Stat., 182, horses of military persons surrendered by order of superior officers. See Senate Rep. 137, 1st sess. 34th Cong., April 18, 1856, in favor of paying for personal property destroyed by the enemy in the war of 1812. The committee held that where property was used by the Government, and the enemy destroyed it in consequence of that use, it should be paid for. it should be paid for. Congress did not pass the bill recom

mended by the committee.

The legislature of Ohio, by act of March 30, 1864, (61 Ohio Laws, 85,) provided for a commission “to examine claims of citizens of this State for property taken, destroyed, or injured by rebels or Union forces within this State during the Morgan raid in 1863." This act makes three classes of claims:

1. For property taken, destroyed, or injured by rebels.

2. By Union forces under command of United States officers.

3. By Union forces not under command of United States officers.

On the 15th December, 1864, the commissioners made their report to the governor, showing claims made, $678,915.03, on which was allowed $576,225. This consisted of "damages by the rebels," $428,168; "damages by Union forces under command of United States officers," $141,855; and "damages by Union forces not under command of United States officers," $6,202. The report does not distinguish between property taken and that damaged or destroyed.

The act of April 27, 1872, (69 Laws, 176,) authorized a re-examination of these claims. The act of May 5, 1873, appropriates $11,539.56 to pay claims under class three, as classified under the act of April 27, 1872, (70 Laws, 260.) The same act (p. 265) requires the governor to appoint a commissioner to proceed to Washington to urge upon the proper officers of the Government or Congress the payment of all just claims of the people of Ohio growing out of the Morgan raid.

The legislature of Pennsylvania also made provision for indemnifying citizens of Chambersburgh for property destroyed by the rebel invasion.

See act approved April 9, 1868, No. 39, laws of 1868, p. 74. This act provides for the appointment of commissioners to investigate claims of citizens in counties invaded by rebel forces "for the amount of their losses in the late war."

The preamble to this act recites that "during the late war to suppress the rebellion several of the southern counties of this State were several times invaded by the rebels in great force," and that "there was occasioned great destruction, devastation, and

There is a brief account of these in "The works of John Adams, second President of the United States, with a life of the author, notes and illustrations by his grandson, Charles Francis Adams. Vol. 1. Boston: Little, Brown & Co., 1856;" The writer says, (page 387, &c.:)

One other obstacle had been in the way, the more difficult to remove, that it rested on a point of honor in the British heart. Those individuals who had taken the side of the mother country in the colonies, and who, for doing so, had been subjected to the mortification, disasters, and personal losses consequent upon a failure to re-establish her authority, naturally looked to her to protect their rights, in any and every attempt that might be made at accommodation. And this was a valid claim on her, in spite of the fact of the difficulties into which the mother country had fallen were mainly owing to the interested misrepresentations made by leading persons of this class in America. On this point, the instructions to obtain an acknowledgment of their claims to indemnity had been most positive. But the American commissioners, on their side well knowing the impossibility of reconciling their countrymen to the acknowledgment of such odious pretensions, and little disposed themselves to recognize their validity, manifested no inclination to concede anything beyond what the strict rule of justice would demand. Here Dr. Franklin took the lead; finding that the British were about to urge their views on this subject and the fisheries together, he prepared an article, making, by way of set-off, a counter-claim of compensation for the severe and not unfrequently wanton injuries inflicted upon the patriots by the British troops. Neither did this lose force by its reference to the voluntary acts of those very adherents to the British cause, whose pretensions were set up for consideration. The fact that this contest had, in many of its parts, been marked with the most painful characteristics of civil convulsion, in the course of which the parties had suffered shocking outrages from each other, was too well known to be denied; and the wounds were too fresh to permit the supposition that the victorious side would be prepared at once to replace in their former position those of their brethren who had not only forfeited their confidence by joining the oppressor, but had been guilty of the greatest barbarities in conducting the struggle. The earnest and strenuous resistance of Dr. Franklin, re-inforced by the representations of the other commissioners, at last produced an effect in convincing the British envoys that further urgency in their behalf was useless. To prolong the war a single day only for their sakes, without prospect of a better result, was obviously a waste of means, which might be better employed in supplying the very remuneration which was now in agitation. The good sense of Mr. Fitzherbert, confirming that of Mr. Oswald, prevailed, and this troublesome discussion was finally terminated by the preparation of two articles to which all agreed, providing that further hostilities to the tories should cease, and that Congress should earnestly recommend to the States the restitution of their estates to such persons as could be proved to be real British subjects, and such Americans as had not borne arms against the United States.

loss of property of citizens," and "these losses were sustained in the common cause, and for the general welfare of the whole people of this Commonwealth, and it is reasonable and proper that citizens who have thus suffered should receive generous consideration and active relief from this great Commonwealth," &c.

The governor of Pennsylvania has furnished the following:

Commission to re-examine and re-adjudicate was raised under act of May 22, 1871. (P. L. 1871, p. 272.)

It will be seen that this act does not put the claims upon the ground of a legal right to demand compensation, but on the ground of generosity.