ten the Union Army and cause, and a Confederate army was within a few miles of Washington; when the rebels were greatly elated and expected a speedy triumph and to soon retake New Orleans; when the Confederate General Jeff. Thompson wrote to General Butler "that they would have New Orleans in a few days." (Parton, p. 474.) That was a bad time to sneer at "the invincibility of the Union 'arms, and that they were the terror of the entire world; that France and England would be but a mouthful to them." Such insulting language, published in New Orleans, among an excitable and bitter population of rebels, was well calculated to give "aid and comfort" to the rebellion, and at that moment to stir the públic mind to violence and insurrection. Martial law was obliged to be prompt and severe, to nip the offense in the bud, and to punish the offender, not ouly for his misconduct, but to make an example of him. To what extreme he or others might have gone, and what deplorable consequences have followed, if not instantly repressed, no one can now tell. If Mr. Dubos had observed the obligations imposed on him by the laws of neutrality, and the proclamation of the Emperor of France, enjoining strict neutrality on all French citizens, he would not have meddled with American politics in the midst of a civil war. His conduct was imprudent and highly irritating. It endangered the public peace. He saw fit "to scatter firebrands," and when arrested to plead, "Am not I in sport?" It is a plea that cannot be allowed when the materials for a conflagration are lying around everywhere and ready to catch fire. If when arrested he had made such expressions of regret and such promises of good conduct in the future as he ought to have made, and could have made with honor, he would doubtless have been relieved from punishment. This is probable, for on the previous day (September 5) General Butler had permitted the Estafette du Sud to resume publication upon the pledge of such assurances. His order of September 5, 1862, is as follows: "It having been made to appear that the suppression of the 'Estafette du Sud,' French newspaper, will work distress among the employés of the office, who are faultless, and the proprietors having assured the United States authorities that nothing shall be published that is offensive or inimical, or in any way reflecting upon the United States or its authorities, the publication upon this pledge is permitted to be resumed at the instance of the acting French consul, M. Fauconnet." (See Parton's "Butler in New Orleans," p. 434.) IX. It is alleged that Dubos received "inhuman treatment" while in custody, and for this reason it is sought to increase the damages. 1. Mr. Dubos does not say he was treated “ 'inhumanly." While at the customhouse he "was in a room with eight or nine other persons." (P. 8.) But he does not pretend that they were convicts or felons. (P. 10.) He gives the names of three of them-Mr. Stith, Mr. Leefe, and Dr. Delmeux-all believed to be respectable per sons. "I lost all my bedding and had nothing to sleep on for five or six days." He does not say that it was lost by the fault of the Government or that the Government could have furnished him with bedding "for five or six days." Such hardship could not be called "inhuman," even if it were proved to be the act of the Government. His next grievance was not a great one, and his allusion to it shows that he really had no great grievance to complain of. "The mosquitoes were very bad, and I had no mosquito bar to protect me." (P.9.) He then says his eyesight was affected by the glare of the sun on the white sand, and he suffered much pain from that cause. Dr. Batchelor, a Confederate prisoner with him, and who treated him at the time for the affection of his eyes, says: "Having liberty to go around the house and in shady places on the outside of the house, there was no necessity of his exposing himself to the glare of the sun so as to have it operate injuriously on his eyes. He had the option of exposing himself or not, and if he did so it was his own fault." (P. 15.) In sitting in the shade with a bank of sand opposite it would be uncomfortable for the eye, but it would be very easy for him to turn his eyes from it." (P. 15.) The room in which Dubos and others were confined was "from 30 to 40 feet long and about 16 or 18 wide. It was dry; had two windows." Mr. Gillis says: "Our room was well ventilated. We were treated with kindness and courtesy by the officers." (P. 17.) "Dubos received the same treatment we did. Mr. Dubos could have remained inside the building during the day or have seated himself outside in the shade." (P. 17.) Mr. Walker, a prisoner there, says (p. 48): “The treatment was very good; we were well fed; were allowed to bathe under guard; the rations abundant." And on page 49: "It was pleasant, so far as climate was concerned; the bathing was fine; better than at the lakeside places; the food abundant and good; the sleeping apartments good, and the expense little, only for extras and luxuries." The injury to his eyes was but temporary. "I now work a great deal during the night by gaslight." (Dubos, pp. 20 and 21.) It is not pretended that either General Butler or President Lincoln were moved by evil intention to oppress Mr. Dubos or to gratify a spirit of malice or revenge. On the contrary, it is plain that they acted from a sense of duty, and treated him with all the mildness that was possible under the circumstances, and with all the forbearance his perversity and foolhardiness would allow. Nor was there any harsh or inhuman treatment. Nothing whatever should be allowed him for damages. X. Mr. Dubos "gave aid and comfort to the rebels." Such publications as his, by influencing the minds of the French population to resistance against the Government, were a more serious injury to the cause of the United States than if he had made a speech at a public meeting-more practically injurious than if he had taken arms and joined the rebel army; and both in intent and in effect gave "aid and comfort to the enemy." For this reason alone he is, in my judgment, barred from any compensation. EXHIBIT I. Dissenting opinion of Monsieur Lefaivre, Commissioner of the French Republic. The Commissioner for France regrets not to be able to join in the decision of his colleagues in the case of Denis Meng. He bases his dissenting opinion upon the following reasons: The destruction of property situated at Donaldsonville, on the banks of the Mississippi River, was ordered on the 9th of August, 1862, by Admiral Farragut, as appears from his own declarations, in view of securing his transports against the firing from the opposite side, which was attributed (and all inquiries seem to justify this imputation) to Texan guerrillas. Arguments and briefs have been submitted to the Commission for the purpose of justifying the destruction ordered by Admiral Farragut, and the Commission readily recognized in this officer the right of securing his communications by all means consecrated by custom and the immemorial traditions of war. Having disclaimed any appreciation or censure respecting this measure in itself, the majority of the Commission also admitted the following principle: "That the destruction of Donaldsonville might have been caused by military necessities, without the United States Government being exempted from liability for ulterior indemnities to the victims, that is, to the injured property-owners, provided the destruction of their dwellings could not be considered as an act of retaliation prompted by their complicity in attacks upon the Federal transports." The question being thus reduced to these terms, it remained only to consider whether the proofs and testimony showed with sufficient clearness an active participation of the population of Donaldsonville in the incriminated acts of hostility. In the judgment of the Commissioner for France, not only the few inhabitants left by the war at Donaldsonville had not taken any part in the attacks incriminated by Admiral Farragut, but, on the contrary, it is proved that they made the most meritorious efforts with the Confederate officers and the Confederate governor of the State of Louisiana to prevent the continuance of the attacks, and even appealed to Admiral Farragut for effective aid and protection against the excursions of the guerrillas. Inasmuch as the French Commissioner differs so fundamentally from this decision of the Commission, he considers it useless to enter into a hypothetical discussion as to how Dr. Meng's horses were taken from him. In the judgment of the French Commissioner the majority have not substantiated their charge of complicity by the testimony of a single witness, and he has sought in vain through the voluminous records of the Donaldsonville cases for any proof in support of this grave accusation, which is brought forward as the justification of the deliberate burning of the houses of unoffending foreign citizens. The principal witnesses who have testified in these cases on behalf of the United States and of the claimants, are Reynaud, Collin, Bercegeay, Rodrigue, Guigon, Février, Billon, Rougeau, and Claverie. They all declare, from personal knowledge, that the citizens of Donaldsonville took no part whatsoever in the firing upon the Federal transports. It appears from their testimony in claims numbered 112, 184, 331, 496, and 567, among others, that the firing was done exclusively by a band of Texas guer rillas, who were encamped several miles away from the town; that Commodore Far ragnt's threat to burn the town caused great anxiety and consternation; that he was appealed to for protection by the mayor and the few remaining inhabitants, who told him that they could not control the guerrillas, though they would do what they could to prevent them from continuing these attacks (p. 112 of No. 496; 41, 49, 116, and 129 of No. 331; 29 of No. 112; 43 of No. 35; 51 of No. 567); that the captain of the guerrillas and the governor of Louisiana were successively implored to take into consideration their danger and defenseless situation, and to cause the firing from the banks of the Mississippi to be stopped. In a word, it is clear beyond controversy that everything that could possibly be done by the few male adults of Donaldsonville, who appear to have been mostly old men and foreigners, exempt from Confederate conscription, was honestly and in good faith done by them to put a stop to the hostile acts of the Texas guerrillas, and to demonstrate their innocence and their noncomplicity in these acts. The people of Donaldsonville were completely at the mercy of Commodore Farragut and the vessels of his fleet. The town lay between New Orleans and Baton Rouge, at both of which places the Federals had a large military force. No confederate troops were in the vicinity, except Captain McWhorter's handful of Texas guerrillas. The business relations of the town were with New Orleans, and the inhabitants had every motive of interest and reason to placate the Federal authorities. Is it reasonable to suppose that they deliberately invited the destruction of their houses by futile attempts to retard the advance of the Federal fleet? Could there be anything more ludicrous and pitiful than this attempt to picture to us a handful of decrepit Louisianians and foreign tradesmen arming themselves with rusty shot-guns and muskets and marching down in solid array to the river front to repel, at the risk of the destruction of their town if they failed, the advance of the man-of-war " Brooklyn," a screw steamer of 2,070 registered tonnage, carrying twenty-six guns, and one of the largest vessels of the United States Navy? A. LEFAIVRE. No. 43. Judge Aldis to Mr. Blaine. WASHINGTON,. June 4, 1881. SIR: The work of the French and American Claims Commission has so increased of late that I think another clerk is needed for the necessary despatch of business. Mr. Peddrick has shown me the letter which he has addressed to you on the subject. His statements in regard to the necessity of a clerk are quite correct. I should be pleased if an additional clerk could be appointed at once. I am, &c., No. 44. A. O. ALDIS. Mr. Aldis to Mr. Blaine. JULY 8, 1881. DEAR MR. SECRETARY: My colleague, Mr. Geofroy, still desires to have the Commission adjourn until October without deciding the question which I presented to you at the last time that I saw you, and I told him that I could not agree to so adjourn the decision of the question without some instructions or suggestions from you. I see no advantage in so adjourning the question, but think it might lead to serious inconvenience to the claimants and involve them in trouble, expense, and even the loss of their claims by being misled as to our opinion on that point. I think that my colleague, Baron de Arinos, prefers to have the decision made before we adjourn. Will you be so kind as to say to me whether you feel inclined to give any instructions or make any suggestions upon the point. Very respectfully, yours, A. O. ALDIS. No. 45. Mr. Blaine to Mr. Aldis. DEPARTMENT OF STATE, SIR Referring to your letter of this date requesting instructions as to the propriety of rendering a decision upon certain cases pending before the French and American Claims Commission, I beg to state that as the Commission was organized under a treaty with France and is by the terms of said treaty entirely independent of the Department of State, so far as any judicial functions may extend, I do not deem it proper to express an opinion upon any matter connected with the Commission. The responsibility of all decisions and judgments must rest exclusively with the commissioners and the umpire. I am, &c., J. G. BLAINE. No. 46. Baron de Arinos and Mr. Aldis to the Secretary of State. FRENCH AND AMERICAN CLAIMS COMMISSION, 1518 H STREET, Washington, July 11, 1881. SIR: We have just received from Mr. de Geofroy, the commissioner appointed by the French Republic under the convention of January 15, 1880, between the United States of America and the French Republic, the communication which we herewith inclose. You will perceive that he retires from the Commission and ceases his functions as commissioner. We respectfully call your attention to the second paragraph of arti cle 8 of the convention as to the effect of such retirement in interrupting the proceedings of the Commission. We have adjourned the Commission to the second Wednesday (the 11th day) of October, within which time we hope that the French Republic may appoint a commissioner. In the mean time all the proceedings in regard to the business of the Commission which may properly be transacted in the absence of the French commissioner so retiring will still go on. We have, &c., BARON DE ARINOS, A. O. ALDIS, Commissioner on part of United States. COMMISSION DES RÉCLAMATIONS FRANCO-AMÉRICAINES, Washington, le 11 juillet de 1881. MONSIEUR LE PRÉSIDENT: J'ai l'honneur de vous faire savoir qu'ayant reçu un congé de mon Gouvernement je cesse à la date de ce jour mes fonctions de Commissaire de France. Agréez, Monsieur le Président, avec tous mes regrets de me séparer de vous et de notre collègue d'Amérique, les assurances de ma haute considération. Le Commissaire du Gouvernement de la République Française: L. DE GEOFROY. No. 47. Mr. Aldis to the Secretary of State. FRENCH AND AMERICAN CLAIMS COMMISSION, 1518 H STREET, Washington, April 15, 1882. SIR: I have the honor to transmit to you herewith a memorandum in regard to the question which has arisen in the French and American Claims Commission as to the meaning of the terms "territory" and "territorial jurisdiction," as used in the first article of the convention. The arguments of counsel to which I refer seem to suggest all the reasons to be given for the one or the other construction. The action of the Commission in referring the question to the two Governments for their consideration has doubtless been communicated to you by our secretaries. If I can render you any further service in examining and deciding the matter I shall be happy to do so. I am, &c., A. O. ALDIS, Commissioner on the part of the United States. MEMORANDUM FOR THE SECRETARY OF STATE. Duplicate copies of the convention were signed, I suppose, one in English, the other in French, and both are of equal authority. There is a difference in the text of the convention. In the first article of the English copy the jurisdiction extends to claims arising out of acts committed against the persons or property of citizens of France "upon the high seas or within the territorial jurisdiction of the United States." In the French copy the same passage reads thus: "En haute mer ou sur le territoire des États-Unis." If the words "territorial jurisdiction" mean the same thing as territory," " then there is no substantial difference. The counsel for the United States contends that they do not mean the same thing; that "territorial jurisdiction" means that part of the rightful territory of the United States over which the United States had actual jurisdiction; and the words were used with intent to exclude that part of their rightful territory over which they had no actual jurisdiction. Two reasons are given for this construction: 1. That is the natural meaning of the words; territorial jurisdiction is different from legal jurisdiction. Legal jurisdiction extended over all the territory of the United States. The rebellion interrupted the exercise of this legal right in all that part of the United States which was not reclaimed from the Confederacy, but did not destroy it. Hence the legal jurisdiction was for the time being suspended in all part of the territory in which the Confederacy bore sway; and the actual or "territorial jurisdiction" was confined to that part of their territory which was in the actual possession and control of the United States. Such is the argument of the counsel of the United States upon the natural and ordinary meaning of the words. |