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parts of the United States is unlawful, and will remain unlawful until such insurree. tion shall cease or has been suppressed."
That proclamation, declaring these States to be in a state of insurrection against the Government of the United States, was to operate until the insurrection was suppressed; and the insurrection was not suppressed until the month of April, 1863, when tbe forces of General Lee surrendered to General Grant at Appomattox CoortHouse, in the State of Virginia. By that proclamation Louisiana was in a state of insurrection until the suppression of the rebellion in 1865, and during all that period it was enemy territory by the act of the Government of the United States, enemy territory by the proclamation of the Government of Great Britain, enemy territory by the proclamation of the Emperor of France."
In reply, and in support of the position taken by the counsel for the claimant, Mr. Morse, assistant counsel for the French Republic, made the following statement to the Commission :
A few months after the commencement of the war Fort St. Philip and Fort Jackson, which commanded the entrance to the mouth of the Mississippi River, below New Orleans, about a distance of 100 miles, were captured by the Federal fleet under Admiral Farragut, and the city of New Orleans fell into possession of the Federal Gov. ernment, and remained so until the close of the war. With the fall of New Orleans, practically all that portion of the Mississippi River not commanded by very formidable forts fell also into the possession of the Federal Government, and the gunboats and transports of the Federal Government bad free passage up to a point called Port Hudson, which is about 70 miles above Donaldson ville, and on the east or left bank of the river, wbere there was a formidable fort, garrisoned by Confederate troops, which for many months successfully resisted the Federal fleet and army of occupation. But from Donaldson ville to New Orleans all the country on the right and left banks of the river, which was immediately commanded by the guns of the Federal fleet, was in absolute possession and control of the Federal Government. Occasionally, however, partisan rangers or detached bodies of armed men, alleged to be Confederate soldiers, would come from the interior of the country, and, striking the roads which followed the Mississippi River just inside of the levee, would make aitacks sometimes on the steamboats and sometimes on the transports. Some time after the Federal occupation of the Lower Mississippi by the United States, an earthwork was thrown up on the environs of Donaldson ville, at the confluence of the bayou and the river. This was “Fort Barrow," which was erected on the west bank of the bayon and river, and was sometime occupied by a small body of Federal troops. The location of this earthwork, which is shown on maps filed in these cases, was outside of the village of Donaldsonville. This fortification was at one time named “Fort Butler."
The capture of New Orleans occurred late in April, 1862, and the occurrences ont of which this claim originated took place on the 9th of August of the same year. The formidable Federal Heet bad been for several months in undisputed possession of this portion of the river, and of course of the territory immediately contiguous, and all this portion of Louisiana (referring to the map! had been declared by President Lincoln as exempt from the insurrectionary districts. Proclamations August 16, 1861 (12 Stats., p. 1262), and July 1, 1862 (12 Stats., p. 1:276). When the war was commenced the whole State was declared in insurrection, but with the capture of New Orleans and the restoration of Federal jurisdiction in certain portions of the territory, notably Ascension Parish, and other parishes on both sides of the river, those localities were declared by the proclamation of President Lincoln not to be within the insurrectionary districts, and therefore not liable to be treated as “enemy territory.” As a matter of fact, trade was uninterrupted between Donaldsonville and the city of New Orleans. But at the same time the transports and sometimes steamboats had been, as alleged by the United States, fired upon with small arms from points above and below and near Donaldsonville; and the United States has also introduced evidence that there was a baby cannon at one time at Donaldsonville, which was discharged at a transport or a Federal steamboat; and occasionally detachments of armed men would appear on horseback and discharge a volley from small-arms at a passing transport or Federal steamer. I don t believe there is any charge or proof that anybody was killed on steamer or transport by the guns discharged either near Donaldson ville or in the vicinity. I do not think there is any evidence on this point, at least as far as I have read the testimony.
An opinion was given by a majority of the Commission, Baron de Arinos and Mr. Commissioner Aldis, disallowing the claim, in these words:
WASHINGTOx, Norember 2, 1883. All the property described in the memorial, except item 13, for three horses, saddles, and bridles, was destroyed or burnt by the bombardment or burning of Donaldsonville by Admiral Farragut, on the 9th of August, 1862.
The question whether the Government of the United States is bound to make compensation to the claimant for his property so destroyed or burnt has been very fully discussed by counsel and carefully considered by the Commission.
We deem it unnecessary to go into a detail of the facts which we consider as proved by the evidence, or of our views of the principles of international law and of the laws of war applicable to the facts, and which determine our decision.
We deem it sufficient to say that the acts of bombardment and burning by Admiral Farragut were lawful and justifiable acts of war, cansed by the firing of the Confederate military forces, with the complicity of the inhabitants of Donaldson ville, upon the transports of the United States passing upon the river, and that the Government of the United States is not bound to make compensation for the damage caused by such burning and bombardment.
As to the item 13, for the horses, saddles, and bridles, the only evidence to provo the taking by the United States military authorities is the statement of the claimant (p. 17). He is asked: “What became of the horses ?” He answers: “The soldiers took them ; the same soldiers.” As these soldiers came from and returned to the ship in a skiff, it is difficult to believe that they took the horses. The proof of the taking or the horses is not sufficient to justify an allowance.
A dissenting opinion by Mr. Lefaivre, the commissioner on the part the French Republic, will be found in the appendix, marked Exhibit I.
REMY JARDEL v. THE UNITED STATES, No. 333.
The claimant was a French citizen, resident at Donaldson ville, La., in the month of June, 1863. He claimed compensation for a dwelling: bouse and bakery, all of the value of $3,000, which were destroyed by fire set to certain buildings in the town of Donaldsonville, by order of Major Bullen, the 29th day of June in that year. After the attack upon the transports of the United States which gave rise to the destruction of property in Donaldsonville, in the month of August, 1862, by order of Admiral Farragut, as reported in the case of Dr. Meng, the military authorities in Louisiana caused a small fort to be erected above Donaldsonville, at the junction of the Bayou La Fourche with the Mississippi river. The object appears to have been the protection of the transports on the river against attacks from Donaldson ville. In the month of June, 1863, the fort was occupied by a force of about 180 effective men, com: manded by Major Bullen, of the Twenty-eighth Regiment of Maine Vol. unteers. At about 1 o'clock in the morning of the 28th of June the fort was attacked by a body of Confederate troops, estimated at 2,000 in one statement and 5,000 in other statements. The principal attack was from the open country on the west and northwest sides of the fort, but the firing was commenced from behind buildings in Donaldsonville, on the opposite side of the Bayou La Fourche. The contest for the possession of the fort continued until daylight, while the attacking party retired to a distance beyond the reach of the guns in the fort. Major Bullen, apprebending a second attack sent notice to the inhabitants of Donald sonville that he should destroy all the buildings in the town within range of the fort, and on the morning of the 29th a party was sent across the bayou to set fire to buildings in the vicinity. A large number were destroyed, and among them the dwelling-house and bakery of the memorialist.
It was claimed by the counsel for the United States that the destruction of the property was a justifiable act of war; that it took place upon the theater of war and in the territory of the enemy. The counsel for the United States made the following proposition as the true rule of liability, namely: Where two nations are at war, and the theater of war is upon the territory of one of the belligerents, and the belligerent upon the defensive, in actual battle, withont having given special authority for the destruction of the particular property, either by specifying that property or by specifying a class to which it belongs, destroys the property of its own citizens or of alien residents, that government is not liable for the destruction; but if, in preparation for the battle, it orders the destruction of a class of property, in which is the property of A, or it orders the destruction of the property of A, whether it be a month before a battle or a day before a battle, or if, during the battle, it orders for any particular purpose the destruction of particular property of its own citizens, it is liable for the value of the property so destroyed. If, however, an army is engaged in operations upon the territory of the belligerent no liability of that sort arises. Everybody in that country is an enemy, and whether the occupying army destroys property by specific declaration, or whether it destroys property in actual hostilities, it is alike free from all liability.
It was claimed by the counsel for the French Republic, in reply, that the conclusiou reached by the diplomatic agents of the two Governments in the Chourreau case excluded all consideration of the question whether Donaldsonville was within the enemy's territory or not, and that the destruction of the property of the inhabitants of Donaldsonville after the battle was an unjustifiable act, and that the Government of the United States became thereby responsible.
The majority of the Commission, Baron de Arinos and Mr. Commis. sioner Aldis, gave an opinion, as follows:
WASHINGTON, November 2, 1883. Without considering in detail the evidence in this and the similar cases and the facts proved thereby, or stating the principles of international law and of the laws of war applicable to such facts and which determine our decision, we deem it sufficient to say: That the destruction and burning of the dwelling-house, bakery, and outbuildings of the claimant in Donaldsonville on or about the 28th of June, A. D. 1863, by the United States military forces under Major Bullen, then in command of Fort Butler, was a lawful and justifiablo act of war; and that the Government of the United $ ates is not bo ind to make compensation for the damage caused thereby. The claim is ther.fore disallowed.
Mr. Commissioner Lefaivre dissented, and stated the grounds of his dissent in the following opinion:
This destruction took place after the battle of the 27th and 28th of June (night of the 27th ảnd morning of the 28th), during which Fort Butler's garrison victoriously repulsed an attack of the Confederates. So this property was not destroyed under the pressure and for the immediate necessities of actual battle. It was but a strategic measure, taken deliberately and in a period of relative tranquillity; it was an extension of the military zone for the purpose of facilitating the accuracy of the firing, or in order to be able to discover more easily a future atrack of the enemy. According to the unanimous opinion of international writers and congresses, and to the jurisprudence adopted by the Commission itself, such a measure creates for the injured proprietors not participating in the battle (“for the innocent sufferers") a right to indemnity.
In order to refuse Jardel the benefit of this principle, it should be shown that the inhabitants of Donaldsonville took part in the battle of the 27th of June, and thus justified the retaliation of the garrison, or that his house (Jardel's) was completely destroyed during the battle, either by the bombardment of the fort or by fire. None of these points appear in the evidence or testimony.
1. The only cause of grievance of the officers and soldiers of Fort Butler against the inhabitants of Donaldsonville were their sympathies for the cause of the Confederates and the insulting remarks, uttered principally by women, when the patrol passed by. But none of them were proved to have taken an active part in the battle. This view can be established with entire certainty.
2. The testimony of many Federal soldiers and officers shows that no house in Donaldsonville was destroyed during the battle prior to the systematic destruction of the 29th of June. “It was existing houses and not ruins which were destroyed.” Admitting even the fact that a certain number may have been damaged by projectiles during the batıle, this partial destruction gives the military authorities by no means the right to afterwards destroy a lot of buildings without indemnity. The amount of these previous losses has not even been estimated. We can only guess at their
amount, and, in absence of positive proofs, it seems strange that the benefit of the uncertainty should enure to those who destroyed the property rather than to the inDocent victims of the war. A contrary tendency prevails to-day in international settlements. The commissioner on behalf of the French Government regrets that the Commission, by its decision, did not agree to this progressive tendency of international rights.
G. A. LE MORE & Co. v. THE UNITED STATES, No. 211.
The claimants, citizens of France, demanded compensation for 830 bales of cotton, alleged to have been of the value of $350,726.46. This cotton had been the subject of controversy in the district court of tho United States for the southern district of Illinois, sitting as a prize court. The cotton was condemned as lawful prize, and upon an appeal the de. cree of condemnation was affirmed by the Supreme Court of the United States.
In the case of Isaac Taylor v. The Republic of France, No. 1—which was a claim for compensation for a quantity of petroleum alleged to have been shipped by said Taylor, a citizen of the United States, on board a German vessel bound for a German port, which was seized by a French cruiser and the property condemperl as prize—it was agreed by the Secretary of State of the United States, Hon. James G. Blaine, and Mr. Outrey, the representative of the Republic of France at Washington, that the claim was barred by the second article of the treaty. It was understood that all claims against the United States of a like character should be withdrawn from the jurisdiction of the Commission, and the claims of
R. M. A. de Perdreauville, No. 18; Thomas C. Payan, assignee, No. 28; Jules Perrodin, No. 90, as to 13 bales of cotton ; Bazile Laplace, No. 365; Marie Amelie Laplante, widow, and heirs, No. 674, were so withdrawn.. The counsel for the United States demanded the withdrawal of the case of G. A. Le More & Co., No. 211. The agent and counsel for the Republic of France refused to accede to this demand, and upon the ground that the district court for the southern district of Illinois had not jurisdiction of cases in prize, and that the decision rendered by that court was not by competent judicial authority. The counsel for the United States, maintaining that the Commission had not jurisdiction of the claim in presence of the diplomatic arrangement made in the Taylor case, refused to recognize the Commission as authorized to act, and he therefore declined to submit an argument upon the questions involved. A hearing was had by the Commission, and arguments were submitted by the counsel for the French Republic.
A decision was rendered by a majority of the Commission, consisting of Baron de Arinos and Mr. Commissioner Aldis, as follows:
WASHINGTON, March 26, 1884. By the second article of the convention all those cases are excepted from our jurisdiction which have been already diplomatically, judicially, or otherwise by coinpotent authorities heretofore dis;,osed of by either Government."
The cotton claimed by the claimants was libeled in the United States district court of Illinois, was taken possession of by the marshal, and sold under the order of the court, and the proceeds deposited and held to await the final judgment of the court.
At this point in the proceedings the claimants and Withenbury & Doyle, citizens of Ohio, and the New Orleans Bank intervened, each claiming to own the cotton.
The first question, of course, was whether either of these three parties owned the cotton. If they were not the owners then they had no right to intervene, and whether the cotton was taken on the bigh seas or on the land, and was or was not lawful prize, was nothing to them. This preliminary question was tried by the court, much
evidence was taken, and, upon a hearing, the district court decided that neither of the three intervening parties owned the cotton. Thereupon the claimants and the two other parties appealed to the United States Supreme Court. The case was beard in the Supreme Court, and the court held that peither of the three intervening parties owned the cotton, and thereupon the decree of the district court was affirmed.
The claimants moved for a rehearing of the case upon the ground that a part of the evidence given by Queyrouze was withheld from the Supreme Court, but the motion was denied. We refer to the case, the Ouachita Cotton, 6 Wallace Rep., 521.
That the United States district court and the Supreme Court of the United States were competent authorities to decide the question whether the claimants were the owners of the cotton does not seem to us doubtful. They are prize courts, baving full jurisdiction of all questions as to prizes-indeed, under the laws of the United States (by which alone these questions were to be deterwined) they were and are the ooly courts having jurisdiction of prize cases.
Under the decision which the two Governments have adopted in the Isaac Taylor case, this pending case has been disposed of by competent authorities.
The distinction insisted upon by the claimants' counsel-that the cotton was taken npon land, and therefore that the court has no jurisdiction, and its judgments must be void-does not seem to us a tenable ground for holding that the decision that the claimants were not the owners of the cotton was void also.
The case was sent back to the district court.
It is sufficient as to these claimants that competent authority has decided that they are not the owners of the cotton, and have no right to intervene.
The claim is dismissed upon the ground that it “has been judicially or otherwise disposed of,” under the second article of the convention, and is therefore one of those cases wbich are excepted from our jurisdiction.
A dissenting opinion was filed by Mr. Commissioner Lefaivre in these words:
The 830 bales of cotton to which this claim relates, and which were seized on April 8, 1864, at the Simmons plantation, on the Ouachita River, in Louisiana, by the Federal authorities, were undoubtedly the property of G. A. Le More & Co., of Havre, France. It is immaterial whether the cotton was acquired by them from the Confederate Government or from Léon Queyrouze, or whether the consideration given by them for the cotton was cloth or money. The claimants were neutral French citizens and merchants. As such they bad a perfect right to buy cotton from the Confederate Government with cloth or money. Léon Queyrouze was a Frencbman who had been naturalized as an American citizen, but was residing at Matamoros, Mexico, and engaged in business there at the time when the cotton in question was sold to him as principal, or as agent of G. A. Le More & Co. The non-intercourse act of the United States could not and did not apply to him, because that act could have no extraterritorial effect.
The 830 bales of cotton belonging to the claimants were sold on June 22, 1864, by the United States authorities for the sum of $350,726.46. (Record, pp. 113 and 288.) From this gross amount there was deducted the sum of $41,566 for “cost and expenses” (Record, p. 288), leaving as the net proceeds of the cotton, deposited in the United States Treasury, the sum of $309, 160.46. This sum, with interest from June 22, 1864, the claimants are entitled to recover of the United States. The honor and good faith of the United States Government, in view of promises heretofore made by the State Department, imperatively demand the settlement of this claim.
ELISE LEBRET v. THE UNITED STATES, No. 173.
The case of Elise Lebret v. The United States, No. 173, involved questions that were exceptional in the history of the Commission. She set forth in her memorial that she was born at Metz, Department of Moselle, France, the 24th day of March, 1809; that her husband was an American citizen ; that the United States forces, under the command of Major-General Banks, appropriated or destroyed property belonging to herself and her husband in community, of the value of $41,760; that she was the owner in her own right of one-half of the property so appropriated or destroyed, and that there was due to her as principal and interest the sum of $36,540.
Upon this statement of facts, as set forth, the counsel for the United States interposed a demurrer, upon the ground that it appeared on the