BERTRAND V. THE UNITED STATES, No. 345.

The claimant's memorial contained a schedule of articles alleged to have been taken or destroyed by the army of the United States in April, 1864, at his residence, in the parish of Natchitoches, Louisiana.

It was claimed by the counsel for the United States that, as the property was destroyed upon the theater of war and while hostilities were flagrant, the Government of the United States was not liable for the damages sustained by the memorialist.

The Commission made an award in favor of the claimant in the sum of $4,800, which was understood to be in compensation for a quantity of cotton that was destroyed by order of the officers of the army, and through fear that, if not destroyed, it would fall into the hands of the Confederate authorities.

The Commissioner for the United States assented to the award upon the ground that the rule established in the case of Chourreau justified and required the allowance to Bertrand.

OSCAR BERCIER AND FRANÇOIS LABORDE v. THE UNITED STATES, No. 56.

It was stated in the memorial, or shown by the proofs, that the claimants were the owners of 107 bales of lint cotton, of the value in the aggregate of $14,029.63; that said cotton was in the city of Mobile, in the State of Alabama, and that 42 bales thereof were stored in the "City Warehouse," 25 bales at the "Okalona Press," and 40 bales at the "Union Press," and that in consequence of an explosion of fixed ammunition which occurred in that city May 25, 1865, the said warehouses and their contents were destroyed by fire.

The testimony in the case showed that upon the fall of Mobile, which took place April 12, 1865, the commander of the United States Army placed guards around certain warehouses in which cotton was stored. The owners were excluded from the warehouses in which the cotton was stored, and they had no opportunity either to protect it or to remove it. The warehouse-keeper, in his testimony, said:

There were guards of soldiers put over all the warehouses of cotton in the city of Mobile, acting under the authorities of the Government of the United States Army, then in possession of the city.

Of the cotton so held more than 9,000 bales were destroyed by the explosion which took place the 25th of May, 1865, and the cotton of the claimants was a part of the cotton so destroyed. The evidence showed that the cause of the explosion was the accidental dropping of a shell by a soldier, which exploded and set fire to the buildings in the neighborhood.

Upon the same state of facts the same question was raised in the case of Phillippi v. The United States, No. 129. In the argument of that case the counsel for the United States presented the following views to the Commission:

The testimony shows that upon the fall of Mobile, which took place April 12, 1865, the commander of the United States Army placed guards around certain warehouses in which, as was understood, cotton was stored. It does not appear that possession was ever taken of the cotton by any examination of it, or by assuming the custody of it in the sense of taking the keys of the warehouses or displacing the warehousekeepers who may have had the warehouses in charge. As far as the record discloses the transaction, the commanding general did only that in reference to the warehouses that officers of the Army were accustomed to do upon the theater of war-protect as far as they were able private property from depredation by the mob or by soldiers, and from the accidents and casualties of war.

It is to be considered that at that time the war was flagrant, peace not having then been declared nor established. The order of General Canby of the 21st of April, 1865 (No. 30), shows conclusively that it was the policy of the Government to respect private property and to transfer the question of ownership to the civil authorities.

In contemplation of law there was no seizure of the Phillippi cotton. In the case of Pelham v. Rose (9 Wall., p. 106) the court say:

"By the seizure of a thing is meant the taking of a thing into possession, the manner of which, and whether actual or constructive, depending upon the nature of the thing seized; as applied to subjects capable of manual delivery the term means caption-the physical taking into custody."

And they say further:

"In the case at bar a visible thing capable of physical possession is the subject of the libel."

In the case of Phillippi the cotton was a visible thing capable of physical possession and manifestly the subject of caption, which in law means the actual taking, as the seizure of a person. In order to make the Government of the United States liable in the case at bar two things must appear: (1) That an order was issued by the officer commanding at Mobile, or by some officer duly authorized in the premises, directing an actual seizure in the sense in which the word is defined by the Supreme Court in the case mentioned, and (2) an execution of that order by the actual taking of the property in the same sense.

Upon the evidence neither of these two conditions is found to exist. There is no evidence that any order was issued by General Canby, or by any other officer duly authorized thereto, to make caption of the cotton; and, secondly, there is not only no evidence tending to show that caption of the property was made, but the evidence is conclusive that no act touching the condition of the cotton was performed by any officer or soldier of the Army of the United States.

Inasmuch as this claimant chose to make an investment in that species of property which was employed by the Confederate authorities in sustaining its credit abroad and maintaining its armies at home, and inasmuch as she was within the jurisdiction of the United States, and therefore had legal knowledge of the laws and regulations for the conduct of the war, and inasmuch as she chose to mix that property with other property of the same kind, belonging either to the Confederate government or to persons citizens of the United States, and then subject to its authority, she cannot now complain that the Army of the United States was employed to guard and protect that property in mass, for the twofold purpose of preserving it from destruction and of securing to the Government of the United States whatever rights of property might ultimately, upon investigation, be established in its behalf. The destruction of the warehouses and cotton was an accident, and one of the incidents of war by which property was lost, and the loss must rest where it fell. The Government of the United States never attempted to appropriate this property to its own use, but only to guard and protect it for the time being.

In this view of the case the counsel for the United States maintains that even if it should be the judgment of the Commission that the claimant is a French citizen, it is yet true that the Government of the United States is not liable under the treaty for the loss, it not having arisen from any act of the civil or military authorities of the Governinent of the United States, but, on the contrary, from an accident and an incident of war over which neither the civil nor military authorities of the Government of the United States had any control, and which, indeed, they were powerless to prevent.

In the Phillippi case the special counsel for the claimant submitted in reply the following argument:

Upon the express terms of the treaty we maintain that the property of this nonresident neutral was protected by the principle of "public law, justice, and equity." The property was lawfully acquired by her. She was in full possession of it in a warehouse which pro hoc rice was hers. She was dispossessed by the military authority on 12th of April, and excluded from all control over it, and this continued to 25th of May, when the explosion took place which destroyed it. In all this time, seeing the danger to which the property was exposed, she may have made such disposition of it by removal or sale as would have avoided loss to her. It is no answer to say that it is uncertain she may have done either.

The seizure of all the warehouses, containing 17,073 bales of cotton, was of advantage to the Government, as it enabled it to secure such portions as belonged to the hostile organization and to those who sustained it. All that was not destroyed was delivered by the provost-marshal to Capt. Samuel Lappin, and by him transferred, as the law directed, to the special agents of the Treasury.

If we are right in the contention that the property of the claimant was protected by the principles of "public law, justice, and equity" applicable to the case,

H. Ex. 235--8

then, upon undisputed law, the depriving her of the custody and control of it charges the Government with the responsibility of restoring the property, or accounting for its value.

It is of no consequence to the claimant that the loss has been occasioned by one cause or by another. If her cotton had been part of that testified to have been shipped, and had been lost by the perils of the sea, or if, after delivery to the Treasury agent, he had sold it and converted the proceeds to his own use, in either case it would be no answer to say the Government has not received any benefit from the seizure.

It is on this view of the case we have not deemed it essential to go into the investigation of the facts attending the great explosion, by which so much property was destroyed and so many lives lost, for the purpose of demonstrating that it resulted from the grossest negligence.

The claim now made is for cotton, but it stands on the same ground under the treaty, and must therefore be regarded in the same manner as if it were for so many bushels of corn or of wheat.

Neither the abandoned nor captured property act, nor any other act of Congress, differs cotton from any other product.

We conclude by saying that if by "the humane maxims of the modern law of nations the private property of non combatants is exempt from capture as booty of war," it needs no argument for the position that a fortiori such exemption must be extended to the property of a non-resident neutral.

The counsel in the case of Bercier and Laborde claimed that

From the day of the capture of Mobile said cotton has been treated by all parties as captured cotton-by the general in command, by his quartermaster, by the quartermaster in New York, to whom General Canby gave notice that he had ordered all cotton captured in Mobile to be sent, by the Secretary of War, when he ordered General Van Vliet to turn it over to the Treasury agent, and finally by the Court of Claims in ordering the proceeds to be paid over to the claimants, and by the Secretary of the Treasury when he reported to Congress on the subject. In giving the above judgments of the Court of Claims the Secretary says to Congress, "Statement C contains a list of awards of the United States Court of Claims for the proceeds of captured or abandoned property, under the act of March 12, 1863, presented to and paid by the Treasury Department up to June 30, 1876."

In both the cases mentioned the claim of the memorialist was disallowed, and upon the ground, as it was understood, that the Govern ment of the United States was not liable for the pecuniary losses caused by the explosion of the 25th of May, 1865.

ETIENNE DERBEC v. THE UNITED STATES, No. 339.

This memorialist was the publisher and editor of two newspapersone printed in the French language and called "L'Echo du Pacifique,” the other in the Spanish language and called "El Eco del Pacifico," and both printed at San Francisco, California. The day following the night of the assassination of President Lincoln a mob surrounded the office of Derbec and threatened destruction to the establishment; but the cause of the public hostility to Derbec was not made known clearly by the testimony. It appeared, however, to be due to an impression that he had been unfriendly to the cause of the Union, or that he had favored the occupation of Mexico by Maximilian, or that he had entertained views upon both subjects contrary to the public sentiment of the masses of the people in San Francisco. In his memorial the claimant says that—

When the news of the assassination of President Lincoln reached San Francisco, a profound feeling of regret was excited in the population of the city, which was inflamed in the minds of a large mass of turbulent persons into a desire for riot and destruction, and which speedily broke out in the attack of a mob upon several newspaper establishments whose publications were in English, and finally led to an assault upon the establishment of your memorialist, when a large mass of excited men appeared suddenly before the printing and publication office of your memorialist's newspapers, the "Echo du Pacifique" and the "Eco del Pacifico," avowing loudly the determination to sack and destroy it, threatening the life of your memorialist, which for several hours was thus placed in imminent peril.

He also states, what appeared from the testimony, that for the protection of the memorialist and his property the premises were taken possession of by a force of United State troops under command of MajorGeneral McDowell. The record showed that the troops retained possession of the premises uutil the 4th day of the following May, when they were restored to Derbec. Upon the restoration of the premises the types were in confusion, the property had been wasted in various ways, and its value diminished. Derbec, in his testimony used before the Commission, stated that the mob made no entry of the premises, and that no damage was done by them; but that the injury to his property was by the neglect and misconduct of the officers and soldiers of the Army of the United States, who had possession of the premises from the middle of April to the 4th day of May.

The 27th day of March, 1868, an act was passed by the legislature of the State of California, which provided:

Whenever any building or other real or personal property shall be or shall have been destroyed or injured in consequence of any mob or riot, the city or county in which such property was situated shall be liable, in an action by or in behalf of the party whose property was thus destroyed or injured, for the damages sustained by reason thereof.

After the passage of this act Derbec brought suit against the city of San Francisco. His bill of complaint set forth, first, the destruction of the property; second, the destruction of his industry-or, in other words, the value of his subscription list-and generally his grounds of complaint. At the trial the court ruled that evidence could not be introduced for the purpose of showing the value of the subscription-list, or the business of Derbec with reference to the loss of profits in consequence of the destruction of his papers, and that recovery could be had only for the value of property destroyed. The jury found for the plaintiff in the sum of $7,500. The bill of complaint was signed by Derbec, and under oath, and in that bill of complaint he said:

That on the 15th day of April, 1865, aforesaid, and while the said plaintiff was occupied and engaged in editing, printing, and publishing said newspapers, the Echo du Pacifique and Eco del Pacifico, a large number of riotous and disorderly persons assembled and gathered together and formed a mob or a riot; that said persons, when so formed into a mob or riot, with force and arms, forced themselves into the premises and printing establishment of said plaintiff, occupied by him and described as aforesaid, injured, scattered about, mixed up, and destroyed all the types used for the printing and publishing of said newspapers, the Echo du Pacifique and Eco del Pacifico, and also injured and destroyed much of the printing materials used for the purposes aforesaid, which said types and printing materials this plaintiff had been constantly engaged in collecting for the space of thirteen years.

The claim of Derbec was stated in the memorial in these words: "By the loss consequent upon the destruction of his business as proprietor and publisher of the two newspapers, sixty thousand dollars." For the value of the property he made no claim, as he had received full compensation therefor under the verdict of the jury.

Upon the facts thus disclosed it was contended by the counsel for the United States that the Government was not liable, and upon three grounds: (1) That it appears from the testimony given by Derbec in the equity proceedings under the statute of the State of California that the destruction of his property was by the mob; (2) that he had received compensation for the loss of property, and that his claim was of the class that had been disposed of judicially, and was therefore excluded from the jurisdiction of the Commission by the second article of the treaty; and (3) that the Government of the United States, if liable for the value of the property destroyed, would not be liable for the good

will of the business in which Derbec was engaged at the time of the destruction.

The claim was disallowed by the judgment of Baron de Arinos and Mr. Commissioner Aldis. The reasons for the decision were not assigned by the Commission, and thereupon the counsel for the French Government made an application to the Commission "to state the grounds of the disallowance of the claim." That request was complied with, and the majority of the Commission made the following statement:

I. International commissions do not usually give the reasons for their decisions, except when the decision stands upon some principle of law which they think ought to be made known.

Most of the cases submitted involve only questions of fact, in which the commissioners weigh the evidence, consider the circumstances, the credibility of witnesses, and so decide upon the claim.

We reserve to ourselves in the most ample manner the right exercised by all international commissions of deciding for ourselves whether to give reasons or not for our decisions, and in the exercise of the right shall regard what is due to the Governments, the claimants, and to the proper dispatch of the business of the Commission. II. In this case Mr. Derbec says that he is charged with perjury, wishes to know the grounds of our decision, so as to ascertain whether the decision sustains that accusation.

We rejected his claim upon the ground that the acts were committed by a mob in a riot, and not by the authorities of the United States.

In his suit against the city of San Francisco he swore that a mob entered his printing establishment and "defaced, injured, scattered about, mixed up, and destroyed his types and much of the printing materials, and that in consequence of said malicious act of said mob his newspapers ceased, to exist, and the valuable contract with Mr. Murphy for printing paper was lost to him." (See pp. 164 and 165 of the record.) We thought the evidence and all the probabilities sustained and established the same facts. This was a question of fact, not of law; it depended upon the evidence, and, therefore, we deemed it unnecessary to give our reasons.

VIRGINIE DUTRIEUX v. THE UNITED STATES, No. 524.

This claimant was the owner of two houses, situated in the city of Charleston, South Carolina. During the bombardment of that city by the forces of the United States these houses were struck by shells and either destroyed or injured materially, for which the memorialist claimed compensation in the sum of $6,000.

Upon this statement of facts in the memorial the counsel for the United States interposed a demurrer, and upon the ground that "the injuries complained of were the result of the ordinary operations of war and the bombardment of an enemy's town."

*

It was admitted in the opening brief of the counsel for the claimant that, "viewed from the standpoint of international law, * there was no remedy for the destruction by a belligerent, through the ordinary operations of war, of the property of a loyal citizen or an alien lying within the field of the war."

By the Fourth Article of the convention between the United States and France the Commissioners were required to make solemn declaration that they would "impartially and carefully examine and decide, to the best of their judgment and according to public law, justice, and equity, without fear, favor, or affection, all claims within the description and true meaning of Articles I and II, which shall be laid before them on the part of the Governments of the United States and of France, respectively."

It was claimed by the counsel for the memorialist that the phrase "public law" was distinguishable from "international law," and that it was the intention of the two Governments that all equitable claims on