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By the treaty of January 15, 1880, the Government of France is bound to compensate citizens of the United States for losses of a specified character sustained by such citizens, and arising out of acts committed by the French civil or military authorities," at the times and under the conditions mentioned; and the corresponding obligation of the United States is to compensate citizens of France for losses of a speified character sustained by such citizens and "arising out of acts committed

by the civil or military authorities of the Government of the United States upon the high seas or within the territorial jurisdiction of the United States," and within the time named in the treaty.

I submit with great confidence that it is not within the legal capacity of this Commission to enlarge that authority in the least. The language is clear, it is explicit, there is no ambiguity in it; and if there were ambiguity or doubt, that ambiguity or doubt must be so solved, under the authority of President Woolsey, as to relieve the Government, which otherwise would have been charged. This is the extent of the obligation resting upon France. The corresponding obligation of the United States is to compensate citizens of France for losses of a specified character sustained by such citizens, and arising out of acts committed by the civil or military authorities of the United States upon the high seas or within the territorial jurisdiction of the United States and within the time named in the treaty.

It is to be observed that in this first article of the treaty is the phrase “territorial jurisdiction." The word "territorial" was introduced undoubtedly for some purpose. If the phrase had been, as it might have been, "within the jurisdiction of the United States," there would then have been a doubt as to the meaning of the single word “jurisdiction."

It has been asserted or recognized by the Supreme Court of the United States, by the Executive Department of the United States, and by the Legislative Department of the United States, that while we maintained from the first our legal jurisdiction over all the territory that had been within the recognized limits of the United States, we also admitted that during the war our actual territorial jurisdiction was limited by the line of our bayonets. The Supreme Court, in the prizes cases, said (2 Black, 635; 4 Miller, 876 ):

"It is no loose, unorganized insurrection, having no defined boundary or possession. It has a boundary marked by lines of bayonets, and which can be crossed only by force-south of this line is enemies' territory, because it is claimed and held in possession by an organized, hostile, and belligerent power." (2 Black, 674).

By the declarations and acts of the Confederate authorities the United States was dispossessed of a portion of territory to which its lawful jurisdiction extended.

For the ordinary and peaceful purposes of government that territory had ceased to be of the territory of the United States. As a theater of war, and until a regular and peaceful administration of law, either civil or military, was established, the Government of the United States was in no proper sense responsible for what occurred in violation of human rights, whether of property or of person.

When the jurisdiction of the United States was re-established over the rebellious districts and States, and tribunals for the due administration of law had been instituted under the authority of the United States, then, bu not until then, did the United States become responsible as the protector of person and property.

On the theater of war flagrant neither the contending armies nor the Governments that they represent can be held responsible for the losses and injuries that fall upon private persons.

In the case of the United States r. Rice, reported in 4 Wheaton, 246, the Supreme Court admit and assert the loss of territory and of territorial jurisdiction. A portion of the State of Maine, including the town and port of Castine, was conquered and for a time was held by the forces of Great Britain.

Upon the recovery of the territory the revenue officers demanded the payment by Rice of duties upon goods imported into Castine during its occupation by Great Britain.

The court denied the validity of the claim, and said "Castine was therefore, during this period, so far as respected our revenue laws, to be deemed a foreign port; and goods imported into it by the inhabitants were subject to such duties only as the British Government chose to require. Such goods were, in no correct sense, imported into the United States."

Whenever it is alleged in a memorial that the property for which compensation is claimed was taken or destroyed within the States or parts of States declared to be in insurrection by the proclamation of President Lincoln of August 16, 1861 (U. S. Stat., vol. 12, p. 262), the burden of proof is upon the claimant to show that the property so taken or destroyed was at a place which had been recovered from the possession of the enemies of the United States, and that it was then within the territorial jurisdiction of the United States.

The twelfth article of the treaty of Washington (Hale's Report, p. 415), under which the British and American Mixed Claims Commission was constituted, does not

contain any language, as far as I observe, that is equivalent in its restrictive character to the phrase "territorial jurisdiction," which is found in the treaty with France. But notwithstanding the absence of that limitation, the Commission gave that interpretation to the British treaty for which I now contend. The action of the commissioners is reported by Hale (pages 52, 53, and 54). The practical result was (p.54) that all the claims for cotton destroyed in the enemy's country, with the single exception of that of A. R. McDonald, No. 42, were disallowed by the unanimous vote of the Commission. The question was discussed, and numerous authorities were cited, and notwithstanding the power of the Commission was not limited to the extent that the powers of this Commission are limited, the result was such as I now invoke at your hands.

Mr. Lincoln, by his proclamation of August 16, 1861, declared that the inhabitants of Georgia, South Carolina, Virginia, North Carolina, Tennessee, Alabama, Louisiana, Texas, Arkansas, Mississippi, and Florida, (except the inhabitants of that part of the State of Virginia west of the Alleghany Mountains, and of such other parts of that State and the other States hereinbefore nained as may maintain a loyal adhesion to the Union and Constitution, or may be from time to time occupied and controlled by forces of the United States engaged in the dispersion of said insurgents), are in a state of insurrection against the United States, and that all commercial intercourse between the same and the inhabitants thereof, with the exception aforesaid, and the citizens of other States and other parts of the United States is unlawful and will remain unlawful until such insurrection shall cease or has been suppressed."

As early as the 13th day of May, 1861, the Government of Great Britain, by proclamation, recognized the belligerent character of the so-called Confederate States. By that act Great Britain accepted the facts which were afterwards set forth in Mr. Lincoln's proclamation, that the territory which was then inimical, and for the time was under the control of the so-called Confederate States Government, was not then within the territorial jurisdiction of the United States.

The proclamation by Great Britain was followed June 10, 1861, by a proclamation of the Emperor of France, in which he enjoined upon the citizens and subjects of that country strict neutrality between the Government of the United States and the government of the so-called Confederate States. I refer to these three anthorities, the proclamation of the President of the United States, the proclamation of the Government of Great Britain, and the proclamation of the Emperor of France, for the purpose of satisfying your minds that at that time the States and parts of States named were not within the territorial jurisdiction of the United States. To be sure, they were within the legal jurisdiction of the United States, and therefore the Supreme Court said that the inhabitants of those districts were at the same time citizens and enemies. They could be pursued as enemies, and they could be dealt with by the civil law as citizens. But the condition of war was recognized, and territorial jurisdiction was, by the proclamation of the President, absolutely abandoned, and except for the loss of territorial jurisdiction by the United States the recognition of belligerent rights in the so-called Confederate States by Great Britain in May, 1861, and by France in the month of June following, would have been offenses of the gravest national character.

I refer again to the prize cases, as they are called, reported in Black (p. 635), where the doctrine is fully set forth that the inhabitants of the rebellious districts were at the same time citizens of the United States and enemies thereof.

Of property taken within the territorial jurisdiction of the United States it is to be said:

(1) That no presumption arises that a person in the military service of the United States is thereby authorized to do an act that is injurious to another, unless such act is done in the actual conflict of arms. Hence if any property was taken by soldiers the presumption does not arise that they had authority for the act. If they had authority it must be set forth and it must be proved.

(2) Proof that property taken or destroyed within the territorial jurisdiction of the United States was taken by the military authorities must be made by evidence that an officer, duly authorized thereto, issued an order, general or special, therefor, or by evidence that the property so taken was essential to the subsistence or safety of the army, and that is was so used with the knowledge and consent of the commanding officer present at the place of use

By that I mean to say that if property was taken, even though the party claiming compensation therefor should not be able to show that an order was actually issued, yet if that property was of such a sort that it was useful to the army, and was so used, and with the knowledge and consent of the officer in command, then such use, with such knowledge and consent, may very fairly be construed as the equivalent of an original order for the taking. This is a liberal view of the rights of claimants before this Commission.

(3) Or it must appear that the property taken was taken in furtherance of a duly

authorized public policy, and by a duly qualified agent of the Government, as in the case of cotton when the captors were acting under the orders of a military commander, or of the President, or by virtue of a permit from the Secretary of the Treasury. If a claim is made for cotton, for example, it most be shown that it was taken by a duly qualified agent of the Government.

Finally, Mr. President and gentlemen of the Commission, with these observations I invite your concurrence to two propositions, and, submitting them, I leave the subject:

1. The Government of the United States is not liable for losses arising from depredations committed in places where the armies were present, whether such depredations were by the soldiery or by camp-followers, inasmuch as the acts were not only without authority, either civil or military, but were in violation of the rules and articles of war, and of the orders of the military commanders.

2. The Government of the United States is not liable for a loss of property if the property, at the time the loss occurred, was not within the territorial jurisdiction of the United States.

The following views were submitted by the assistant counsel for the Republic of France, Mr. Morse:

With all deference to the counsel for the United States, the attempt to distinguish the "legal" jurisdiction from the "territorial" jurisdiction of the United States mentioned in the treaty is a refinement. All the claims paid through the action of the Southern Claims Commission to the citizens of the United States arose in States or parts of States at one time or another proclaimed as in insurrection against the United States; but alien residents could not go before that Commission, which was confined to loyal citizens, and hence the convention by which this honorable Commission was established. No claims arose outside of the insurrectionary States provided for in this treaty, except those arising upon the high seas. Can it be supposed for one moment that it was the intention of the high contracting parties to enter into a treaty to adjust all claims of their respective citizens, and then by the terms of the treaty to exclude the only claims that could possibly arise? The proposition is too absurd to require serious argument. And yet this must be the logical and inevitable outcome of the doctrine laid down by counsel for the United States. It would reduce the treaty to the level of a bargain or dicker between highwaymen; it would make it an instrument to deceive and disappoint the just expectations of honest claimants. But, worse than that, it would cover with reproach and disgrace two great and proud States. The language of the treaty clearly meant the territory of the United States as known and claimed. It had no reference to the temporary occupancy of the Confederates; all the claims arose in the Southern States. They were the results of the conflict to a certain extent, for without it they would not have arisen; and they arose under an infinitely varied condition of affairs; some of them the inevitable accidents of warthe property was sometimes destroyed by actual conflict; the bursting shell fired the house or consumed the contents of the gin or sugar refinery.

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If, however, counsel for the United States is in error, and counsel for the French Republic is correct in the views herein expressed in reference to the status of French citizens living in Louisiana during the late civil war, there are some counter propositions which may be properly advanced, and which should be adopted by this Commission, either in terms or substantially. And in response to the concluding arguments of the counsel for the United States, I beg to submit the following propositions on behalf of the French Republic:

1. Under international law, as well as by provisions of successive treaties between the United States and France, and particularly by provisions of the Treaty of January 15, 1880, the United States is liable to France for injuries to the persons of citizens of France, or on account of appropriation of property belonging to the citizens of France, being neutral, by officers and soldiers of the United States, if committed between the 13th of April, 1861, and the 20th of August, 1866, upon the high seas or within the territory of the United States.

"2. The United States is liable to France for acts committed against the persons and property of citizens of France, being neutral, by agents and employés of the United States, if committed between the 13th of April, 1861, and the 20th of August, 1866, upon the high seas or within the territory of the United States."

The majority of the Commission, Baron de Arinos and Mr. Commissioner Aldis, rendered a decision in these words:

In this case, upon the facts before us, we are not prepared to hold that, at the time of the burning of the cotton, the place was within the territorial jurisdiction of the United States, and therefore the claim is disallowed.

Thereupon the counsel for the French Republic entered the following motion:

And now comes the counsel for the French Republic, who moves this honorable Commission to reconsider its decision in the above-entitled case, for the following reasons, that is to say:

1. That the ground on which it was rendered is that the Commission was "not prepared to hold that at the time of the burning of the cotton the place was within the territorial jurisdiction of the United States," and that the question thus raised rests on the construction of part of Article I of the convention.

2. That the words "territorial jurisdiction of the United States" are construed in such a way as to conflict with the meaning of the word "territoire," used in the French text of the convention.

3. That no decision can be rendered in this individual case until the high contracting parties shall have determined the meaning of the words "territorial jurisdiction" "territoire," as used in the English and in the French text of the convention of January 15, 1880.

He then asked the Commission to make an order in the form following:

Whereas the counsel for the United States has submitted to this honorable Commission, on behalf of the United States, a certain contruction of the words "territory and "territorial jurisdiction," used in Article I of the convention of January 15, 1880, between France and the United States;

And whereas the counsel for the French Republic has opposed said intended construction as contrary to the true intent and meaning of the convention of January 15, 1880, and on the ground that it limits the jurisdiction granted to this Commission; and also on the further ground that the words "territorial jurisdiction of the United States" are construed as conflicting with the word "territoire," used in the French text of the convention:

It is ordered that the whole question thus raised by the counsel for the United States be referred to the high contracting parties for the determination of the issues thus presented; and that, until their decision has been received by this Commission, no case in which the construction of the words thus used in the treaty is necessary to its determination shall be considered and adjudicated by this Commission.

In support of these motions the Marquis de Chambrun said:

I do not propose to speak on these motions. I will confine myself to the reading of the following statement:

"The undersigned, counsel for the French Republic, respectfully submits to this honorable Commission the following points in support of his motion:

"1. The decision rendered in the case of Joseph Choureau, No. 43, tends to establish a certain jurisprudence in regard to the meaning of the words 'territorial jurisdiction of the United States' as used in Article I of the treaty, which conflicts with the sense in which said words are used in public law.

"2. It also conflicts with the French text of the convention of January 15, 1880, which contains the words territoire des Etats Unis.'

"3. The arguments of the counsel for the United States in the cases of Anna Vidal v. The United States, No. 24, of Pierre Petrequin v. The United States, No. 38, and of Baptiste Lauga v. The United States, No. 39, are founded in part on the above-quoted decision, and they contain general propositions which are intended to be drawn by way of deduction from the said decision, to wit, "that the Government of the United States is not liable for a loss of property, if the property at the time the loss occurred was not within the territorial jurisdiction of the United States.'

"4. That if this decision shall prevail, the claims which it was intended by the high contracting parties should be disposed of through the instrumentality of this Commission would remain in abeyance, and a large majority of said claims would be thrown out.

"5. That the practical result of the adoption of the proposition presented by the counsel for the United States would actually reverse the views of the high contracting parties as laid down in the convention of January 15, 1880.

6. That this honorable Commission has allowed the counsel for the United States to submit his views as far as applicable to certain cases now submitted to this Commission.

"7. That arguments have been also submitted by counsel for the French Republic. "For these several reasons, and also for additional reasons to be stated hereafter, if required, the undersigned most respectfully requests this honorable Commission to grant his motion."

These motions having been granted, and the subject having been referred to the two Governments, correspondence took place between the Secretary of State of the United States and the minister of the French Republic resident at Washington, the result of which was contained in the letter of the Secretary of State to Mr. Outrey, dated May 9, 1882, as follows:

SIR: I have the honor to acknowledge the receipt of your note of the 8th May, 1882, in relation to the interpretation of the treaty between the United States and France, concluded January 15, 1880, which was referred to the two Governments by the Commission.

Without assenting to the inference which possibly might be drawn from some non-essential observation of your note, I find that we are in substance agreed as to the correct interpretation of that portion of the treaty to which this correspondence relates and which was the subject of our conversation.

I am glad, in compliance with your request, to state the understanding arrived at between us. The examination which I have made of the negotiations preliminary to the treaty, and of each text, convinces me that the words "territorial jurisdiction," when used in the first article of the treaty, were intended to have, the force of the word "territory," which is in fact used in the French text. So far as the decision in the Chourreau case was in conflict with this definition of the words territorial jurisdiction, as being synonymous with the word territoire in the French text, it failed to carry out the purposes of the two Governments, and should be corrected.

I desire, however, in order that it may be a complete understanding on this point, to state that I do not express any opinion as to the validity of claims which arose in that part of the territory of the United States which was in rebellion at the time the claims are alleged to have arisen, but leave such claims to be decided in each case by the Commission in accordance with the rules of public law, of justice, and of equity, the interpretation now given to the treaty not adding force to claims which, measured by those rules, may be invalid.

Accept, sir, the renewed assurance of my highest consideration.

Mr. MAXIME OUTREY, &c.

FRED'K T. FRELINGHUYSEN.

The question of territorial jurisdiction and liability having thus been disposed of, the case of Chourrean was considered upon its merits and an award was made in the sum of $970.

VIDAL v. THE UNITED STATES, No. 24.

The memorialist presented a claim, as widow of Bonaventure Vidal and as administratrix of his estate, for the appropriation of a quantity of growing vegetables, valued at $5,885. The deceased was a gardener, engaged in raising vegetables for the New Orleans market. The evi dence showed that the losses sustained by Vidal were due to unauthorized acts of pillage by soldiers of the United States Army.

It was claimed by the counsel for the memorialist that the Government of the United States was liable for the acts of the troops, whether specific authority could be shown or not.

On the part of the United States it was claimed that the Government was not liable unless the authority for the taking was clearly proved. The claim was disallowed by a majority of the Commission, Baron de Arinos and Mr. Commissioner Aldis. They say:

In this case we are not able to find the facts proved as claimed by the memorialist. The claim does not arise from acts committed by the civil or military authorities of the United States, and the acts committed must be considered as mere acts of pillage.

It was understood that the majority of the Commission held that specific authority for the taking must be shown, or it must appear from the evidence that the articles taken were appropriated to the use of the army, and that they were such as were necessary for the support of the army.

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