2. It is further urged that the United States ought not to be responsible for acts committed within territory over which they have no jurisdiction.

I beg to refer to the printed argument of the counsel for the United States, which will better show his views. It is aunexed.

The argument on the French side is:

1. The word "territorial" qualifies the term "jurisdiction," and means "jurisdiction" limited by and coextensive with territory, and not jurisdiction limited by and coextensive with actual possession; that actual jurisdiction qualifies jurisdiction by limiting it to actual possession and to something less than "territorial jurisdiction;" while territorial jurisdiction carries jurisdiction as far as territory extends, and is therefore equivalent to "territory."

The French counsel further contends that the word "territoire" or "territory" is susceptible of only one meaning and embraces all the territory of the United States; and that if the words "territorial jurisdiction" are susceptible of two meanings, that meaning should be adopted which barmonizes with the word "territoire," and so gives the two texts a common and harmonious and not an inconsistent and contradictory sense.

2. The French counsel further insists that in that part of the English text which describes the claims of American citizens against France, in the preceding part of Article I, the words used are "acts committed upon the high seas or within the territory of France," thus embracing "all the territory of France," although at the time the city of Paris and a part of the territory of France was not within the actual jurisdiction of the French Government.

As therefore the French Government is responsible for acts committed within the territory of France, though not within territory subject to its actual control, so by fair intendment and by just reciprocity the United States should be and was intended to be made responsible for acts committed within the territory of the United States, though such territory was not subject to its actual control.

3. That the real object of the convention is to give just compensation to French citizens for property taken or injuries committed against them by the authorities of the United States; that it is the act of depriving a citizen or neutral alien of his property for public use that constitutes the right to compensation, and that so long as the military authorities had sufficient control or jurisdiction of any place to take property and convert it to their use, they are bound in justice to make compensation.

That it makes no difference as to the just right of the citizen where the property was taken (so it was in the United States) nor how transient the possession of the place by the military authorities might be when it was taken, so it was actually taken by the Government for its use.

That it makes no difference with the moral obligation of the United States to pay for private property taken for public use that it was taken within the Confederate lines, so long as the fact is proved that it was so taken and so converted to the army use by United States military authorities.

That these just rights of French citizens would be defeated in a great many cases, and the objects of the convention be frustrated by the construction asked for by the United States counsel.

4. That the United States in establishing the Southern Claims Commission, and in allowing compensation to its loyal citizens through that tribunal, recognized and acted upon the principle that the loyal citizen was entitled to compensation for private property taken for army use, whether it was taken within the Confederate lines or not; that the right to compensation stood upon the basis that private property was taken for public use, and the place where it was taken was wholly immaterial, and that for these claims of French citizens the same rule should be adopted, as the claims were of precisely the same kind as those examined and settled by the Southern Claims Commission.

That the United States Government in establishing this Commission did not intend to give to French citizens any different or any less compensation for their property taken for public use than that which they gave to their own citizens by the Southern Claims Commission.

I beg to refer to the arguments of M. de Chambrun and his assistant counsel, Mr. Morse, for a better elucidation of their views.

We have decided to suspend action in all cases depending upon the construction to be given to this clause in the convention till we hear whether the two Governments can come to some understanding upon the subject, or shall decide to leave it to us for our judicial decision.

The term of the Commission is so short, and the work to be done by them is so great, that we venture respectfully to suggest that an early decision of the question is desirable.

I am, &c.,

A. O. ALDIS, United States Commissioner.

ARGUMENT OF THE COUNSEL FOR THE UNITED STATES IN SUPPORT OF CERTAIN PROPOSITIONS APPLICABLE TO MANY CASES BEFORE THE COMMISSIONS, AND PARTIALLY TO CLAIMS NOS. 24, 38, 39, and 100 vs. THE UNITED STATES, KNOWN AS THE GARDEN CASES."

Mr. BOUTWELL said:

WASHINGTON, March 14, 1882.

Mr. President and gentlemen of the Commission, it is agreed by the counsel for the two Governments that they will now submit to the Commission the following cases: No. 24. Anna and John Vidal vs. The United States.

No. 38. Pierre Petrequin rs. The United States.
No. 39. Baptiste Lauga vs. The United States.

No. 100. Jean Odend'hal rs. The United States.

These four cases are by the counsel for the United States to be substantially of the same character. They are claims for losses alleged to have been suffered from the depredations of the soldiery of the United States during the late civil war. Of course the main question is whether the Government of the United States, under the treaty, is to be made responsible for the damages thus sustained by the parties claimant. The counsel for the United States have discussed that question in their briefs, and especially in the brief in the case of Vidal, No. 24, where, at some length, we have attempted to support the supposition, upon the facts shown, that that was a case of pillage, and, being a case of pillage, that by the treaty the Government of the United States is not bound to respond in damages. In the other three cases our briefs show the argument upon the facts, differing, as they do somewhat, and in each one reference is made to the brief in the Vidal case.

I do not intend that the remarks that I now make shall be accepted by the Commission as a substitute for the briefs filed, but I shall necessarily, in the course of my observations, repeat some of the doctrines laid down in those briefs, and very likely refer to some of the authorities therein cited. I wish to place myself in such a position that it may not be necessary hereafter to repeat the argument upon the several propositions that I am now to consider; and, therefore, much of what I may say will not bear directly upon the single question involved in the cases now submitted. I think it is proper for the counsel for the Government of the United States, at some moment of time, and at an early moment, to express his opinion upon questions of law that are to arise in the various cases upon the docket of the Commission.

My first proposition, which has only a remote bearing upon the business of the Commission, is this:

I.

By the rules and practice of modern nations in time of war an invading army may seize and appropriate or destroy all munitions of war, and all stores of provisions and clothing that may have been gathered for, or that may be made useful to, the enemy. I cite in support of that proposition President Woolsey in his work on International Law, fifth edition, paragraph 137, where he says:

"The rule is now pretty well established, that while all military stores and buildings are lawful plunder, and while every edifice in the way of military movements, whether, indeed, public or private, may be destroyed, whatever does not contribute to the uses of war ought to remain intact."

The exception which he makes, "whatever does not contribute to the uses of war ought to remain intact," is also excepted out of my proposition, which is that all munitions of war and all stores of provisions and clothing that may have been gathered for or may be made useful to the enemy, may be either seized or destroyed.

Mr. William Whiting, who many years ago wrote a very valuable work on the war powers of the United States under the Constitution, but based also on public law, and treating largely of the war powers that pertain to every government, said:

"Property of persons residing in the enemy's country is deemned in law hostile, and subject to condemnation without any evidence as to the opinions or predilections of the owner. If he is the subject of a neutral, or a citizen of one of the belligerent states, and has expressed no disloyal sentiments towards his country, still his residence in the enemy's country impresses upon his property, engaged in commerce and found on the ocean, a hostile character, and subjects it to condemnation. This familiar principle of law is sanctioned in the highest courts of England and of the United States, and has been decided to apply to cases of civil as well as of foreign war.

Thus personal property of every kind, ammunition, provision, contraband, or slaves, may be lawfully seized, whether of loyal or disloyal citizens, and is by law presumed hostile and liable to condemnation if captured within rebellious districts. This right of seizure and condemnation is harsh, as all the proceedings of war are harsh in the extreme; but it is nevertheless lawful. It would be harsh to kill in battle a loyal citizen, who, having been impressed into the ranks of the rebels, is made to fight

against his country; yet it is lawful to do so." (War powers under the Constitution, pp. 56-57, 43d ed.)

In the case of Mrs. Alexander's cotton (2 Wallace, pages 418 and 419), the same doctrine, substantially, is laid down, as follows:

"These facts present the question, Was this cotton lawful maritime prize, subject to the prize jurisdiction of the courts of the United States?

"There can be no doubt, we think, that it was enemies' property. The military occupation by the national military forces was too limited, too imperfect, too brief, and too precarious to change the enemy relation created for the country and its inhabitants by three years of continuous rebellion; interrupted at last for a few weeks, but immediately renewed, and ever since maintained. The parish of Avoyelles, which included the cotton plantation of Mrs. Alexander, included also Fort De Russy constructed in part by labor from the plantation. The rebels reoccupied the fort as soon as it was evacuated by the Union troops, and have since kept possession.

"It is said that though remainingin rebel territory, Mrs. Alexander has no personal sympathy with the rebel cause, and that her property therefore cannot be regarded as enemy property; but this court cannot inquire into the personal character and dispositions of individual inhabitants of enemy territory. We must be governed by the principle of public law, so often announced from the bench as applicable alike to civil and international wars, that all the people of each state or district in insurrection against the United States must be regarded as enemies, until by the action of the legislature and executive, or otherwise, that relation is thoroughly and permanently changed."

I have only to add upon this point that if the doctrine were not admitted and acted upon, then the necessary and natural and proper objects of war could never be accomplished. In the nature of things it is within the lawful powers of an invading army to destroy the ammunition of the enemy and to capture the clothing and provisions and whatever else might be made specially useful to the enemy in the prosecution of the war.

II.

By the same rules and practice an invading army is justified in taking and appropriating to its own use all the property found in the enemy's country, whether movable or immovable, that may be necessary for its subsistence or defense.

On this point President Woolsey has stated a proposition that I have no doubt is justified by the principles of public law.

In paragraph No. 136 he says:

"The property, movable as well as immovable, of private persons in an invaded country is to remain uninjured. If the wants of the hostile army require, it may be taken by authorized persons at a fair value; but marauding must be checked by discipline and penalties." (Woolsey's International Law, 5th ed.)

Wheaton says (International Law, p. 434, 6th ed.):

"As to personal property or movables, the title is, in general, considered as lost to the former proprietor as soon as the enemy has acquired a firm possession; which as a general rule is considered as taking place after the lapse of twenty-four hours, or after the booty has been carried into a place of safety, infra præsidia of the captor." The rule in regard to the appropriation of property taken for the purpose of an army is as broad as the necessities of the army, reaching in its application not only to those persons who are subject to the government that is prosecuting the war, but it applies with equal force to aliens and strangers who are dwelling in the country. Even if they are strangers, who may have come into the country subsequent to the commencement of the war, they are nevertheless to be treated as enemies. Burlamaqui says (quoted in the case of the Venus, 8 Cranch, 292):

"As to strangers, those who settle in the enemy's country after a war is begun, of which they had previous notice, may justly be looked upon as enemies and treated as such. But in regard to such as went thither before the war, justice and humanity require that we should give them a reasonable time to retire, and if they neglect that opportunity, they are accounted as enemies."

III.

A government in prosecuting war may also take and appropriate or destroy all property found in the enemy's country that may be especially useful to the enemy in the prosecution of the war.

This doctrine is involved in the first proposition; but, nevertheless, there may be other articles than clothing, provisions, and munitions of war that may be the subject of seizure and destruction. In our civil war we declare cotton to be of that nature, and the doctrine of contraband of war rests upon this proposition. If the proposition be not true, then nothing can be contraband of war except the munitions only.

IV.

As the acts enumerated are among the rights of belligerents, there is neither remedy nor redress by public or municipal law.

This proposition is of consequence in the cases pending before us, The rule applies, of course, to aliens who have remained neutral, and those whose sympathies are with the government represented by the invading army, as well as to persons engaged in actual hostilities.

It is not necessary to quote law authorities in support of this proposition. The fact that in our own case, in order to provide a remedy, we have instituted three great measures for the relief of sufferers by the operations of our armies in the late civil war, is conclusive that there was no existing remedy for the losses sustained. In the first place, the Southern Claims Commission was created for the purpose of liquidating the claims of loyal citizens of the United States. Then there was the British and American Mixed Claims Commission, and at last the French and American Claims Commissions. These commissions would have been unnecessary if there had been any remedy or redress by municipal law or by general public law. Therefore, if government is not bound by general public law, and, as far as I know, there is no such law, and if the Government of the United States by municipal law was not bound to compensate persons whose property had been taken by civil or military authority, we are justified in advancing one step further.

V.

With stronger reason it is a recognized rule of war that a government is not answerable for losses incident to the presence of the army, and which arise from the unau thorized acts of the soldiery or the depredations of camp followers.

What has been true of every invading army was true in an unusual degree of our armies operating in the South during the late civil war. The movements of those armies were not only marked by the presence of the organized soldiery, but were amenable to the laws of war and subject to strict discipline, and under the eye of commanders, but the armies were attended by hordes of men called camp followers. During the progress of the war there was gathered at the headquarters of every army operating in the disloyal States a large number of white men (refugees) who had been loyal to the Constitution, and who were obliged to flee from their homes. Next, the headquarters of every commander were beseiged by a body of emancipated slaves, who rushed to the army for protection, succor, and support. While it would be an extreme hardship probably upon any Government to be compelled to contribute to the persons who might suffer losses from the presence of an army, yet in the case of the United States it would be inconceivably greater than in the case of any other Government carrying on war in modern times. I have no idea that any other armies, certainly not on the continent of Europe, if you can believe what history relates, have been attended by such a multitude of persons seeking protection and support as attended the operations of the armies of the United States during the late war for the suppression of the rebellion. Therefore we maintain that unless the Government of the United States has agreed to compensate those who suffered loss from the presence of the Army, it is not within (to say nothing of equity) the principles of justice that the Government of the United States should be called upon to respond in damages.

The doctrine I now advance was held by the British and American Mixed Commission. I refer to Hale's Report. (Papers relating to the treaty of Washington, vol. 6.) On page 44 he says in reference to claims for property alleged to have been taken and appropriated by the United States forces within the enemy's country, not appearing to have been taken under any regular requisition or order for military use, or by command of any authorized officer:

"These claims were numerous and of great variety in regard to the circumstances of the alleged taking. It is somewhat difficult to draw the precise line of distinction by which the majority of the Commission were guided in their decisions. It may perhaps be said generally that the Commission (Mr. Commissioner Frazer dissenting) made awards in favor of the claimant whenever it appeared by satisfactory evidence that the property so taken was a legitimate subject of military use and was actually applied to military uses, even though such application was not made through the regular and ordinary channels. On the other hand, where the property was in its nature not a proper subject of military use, or, being such, was not applied to military use, or where the taking appeared to be mere acts of unauthorized pillage or marauding, the claims were disallowed."

Then, on the following pages, he cites several of the cases.

In our brief in the case of Vidal (page 12) we have made some quotations from authorities more ancient than Hale in support of the same proposition.

But I come now to say that the acts of pillaging, even though they are proved to

have been committed by soldiers of the Army, were not only not authorized by the officers of the Army, but they were in violation of general orders, and of special orders, and of the Rules and Articles of War. In our brief in the Vidal case we have cited the Rules and Articles of War; and I have also copies of the special orders issued by General Butler when he was in command at New Orleans. His military jurisdiction covered finally a large part of the ground which was the theatre of the operations where the losses occurred for which claims are now made. His orders apply to most of the cases before this Commission. On the 1st day of May, 1862, which was shortly after the capture of New Orleans, and before the troops actually entered the city, he issued a proclamation announcing the surrender of the city to the forces of the United States. In that proclamation he said:

"All persons well disposed towards the Government of the United States, who shall renew their oath of allegiance, will receive the safeguard and protection in their persons and property of the armies of the United States, the violation of which by any person is punishable by death. All foreigners not naturalized and claiming allegiance to their respective Governments, and not having made oath of allegiance to the supposed government of the Confederate States, will be protected in their persons and property as heretofore under the laws of the United States."

Again:

"All rights of property of whatever kind will be held inviolate, subject only to the laws of the United States."

And further:

"The armies of the United States came here not to destroy, but to make good, to restore order out of chaos, and the government of laws in the place of the passions of men. To this end, therefore, the efforts of all well-disposed persons are invited to have every species of disorder quelled; and if any soldier of the United States should so far forget his duty or his flag as to commit any outrage upon any person or property, the commanding general requests that his name be instantly reported to the provost guard, so that he may be punished and his wrongful act redressed."

On the same day, by General Order No. 15, he recapitulated the doctrines, and he says in item 3 of that order:

"III. The commanders of regiments and companies will be hold responsible for the strict execution of these orders, and that the offenders are brought to punishment.” May 27, 1862, he says in General Order No. 32:

"No officer or soldier is permitted to take the property of any citizen, to shut up any house or place of business without a special order from the provost judge, provost marshal, quartermaster, military commandant, or from these headquarters. Any citizen whose property is taken, or annoyed in his property, or arrested by any officer or soldier in contravention to this order, will at once report to these headquarters, where he will have redress. All taking of property by officers or soldiers for their private use is plunder, and will be punished as such."

By General Order No. 74, dated September 19, 1862, all seizures of property by the soldiers were denounced in the terms following:

"I. It having been made to appear to the commanding general that upon marches and expeditions soldiers of the United States Army have entered houses and taken therefrom private property and appropriated the same to their own use: It is therefore ordered that a copy of General Orders No. 107, current series, from the War Department, be distributed to every commissioned officer of the command, and that the same be read, together with this order, to each company in this department three several times at different company roll-calls.

"II. It is fu ther ordered that all complaints that private property has been taken from peaceable citizens in contravention of said General Orders No. 107 be submitted to a board of survey, and that the amount of damage determined shall be deducted from the pay of the officers commanding the troops committing the outrage in proportion to their rank."

The general order of the War Department No. 107 contained the following inhibitions and penalties:

"The fifty-second Article of War authorizes the penalty of death for pillage or plundering, and other articles authorize severe punishments for any officer or soldier who shall sell, embezzle, misapply, or waste military stores, or who shall permit the waste or misapplication of any such public property. The penalty is the same whether the offense be committed in our own or in an enemy's territory.

"All property, public or private, taken from alleged enemies must be inventoried and duly accounted for. If the property taken be claimed as private, receipts must be given to such claimants or their agents. Officers will be held strictly accountable for all property taken by them or by their authority, and it must be returned for the same as any other public property.

"Where foraging parties are sent out for provisions or other stores the commanding officer of such party will be held accountable for the conduct of his command, and will make a true copy of all property taken.