Harmony and Mitchell's case.

1. The jury found for Harmony on the grounds that he was not trading with the enemy, that his goods and property were seized and part of them converted to the public use, without the plea of urgent or immediate necessity, and that Harmony never resumed possession after the seizure.

2. The property of Harmony was left in Chihuahua when the place was evacuated by the Americans, (the goods having been unsalable during their occupation,) and were confiscated by the Mexicans on their return, and wholly lost to Harmony.

3. The seizure in this case took place at San Eleasario, in the province of Chihuahua, at which place Harmony (having determined to proceed no further) was compelled by Colonel Mitchell to remain with and accompany the troops.

Kerford and Jenkin's case.

1. In the case of Messrs. Kerford & Jenkins there was no seizure, nor has any been alleged; their avowed object was to go forward for the purpose of trading with the enemy, and they continued all along in the possession of their goods.

2. The property of Messrs. Kerford & Jenkin was safely conducted to Chihuahua, and realized a very large sum, $260,000, by claimants' statement.

3. The complaint of Messrs. Kerford & Jenkin, is not that they were not allowed to leave the army and proceed no further, but that they were not allowed to precede the army of the United States to the place which they were going to attack.

The question, therefore, in this case resolves itself into one of detention. The commander of the United States forces had undertaken an expedition against the city to which Messrs. Kerford & Jenkin's caravan was bound. The arrival of the caravan would certainly have put the inhabitants of Chihuahua in a more favorable position for frustrating the expedition; indeed, it is admitted in the plea put in on behalf of the claimants, that the arrival of the caravan was anxiously expected, on account of the duties payable to the governor of the place. The enemy would have derived a further advantage in ob

taining information respecting the strength and resources of the invading force, and part of the men employed to conduct the caravan were Mexicans.

These circumstances are surely a sufficient justification of the control exercised by Colonel Doniphan over the movements of Messrs. Kerford's caravan. Similar control was exercised over other traders, citizens of the United States, without complaint on their part.

It is contended that, as neutrals, Messrs. Kerford stood in a better position, and could not properly be impeded in carrying on their trade; but, admitting, for argument sake that they were neutrals, this does not alter the case. It must be remembered that the trade in question had been stopped, and was only allowed under special circumstances, and with a special reserve. It was not an open road on which a friendly power had a right to travel freely and without question.

The case of Harmony v. Mitchell, has been relied on as a precedent, but the following passage from the "opinion of the court," delivered by Mr. Chief Justice Taney, is conclusive in favor of the right of detention, for he says that, "up to the period at which the trespass is alleged to have been committed at San Eleasario, in the province of Chihuahua, it is conceded that no control was exercised over the property of the plaintiff, that is not perfectly justifiable in a state of war."

This seizure took place on 10th February, 1847, at which time Harmony's property must have been detained for a longer period than that of Messrs. Kerford & Jenkin. On the whole review of the case it appears:

1. That no engagement was entered into by the United States government, which can be construed into a license to trade with the enemy, or to pursue a course calculated to interfere with the military operations of the United States forces.

2. That the detention by which the alleged losses were occasioned arose out of the state of war, and was a contingency incident to any trading adventure undertaken under such circumstances; and that there is, therefore, no fair claim for compensation against the government of the United States.

THE ALBION.

A British vessel was seized for cutting timber and trading with the Indians in the Oregon Territory without license. Application was made to the government at Washington, requesting, as a measure of clemency, that the vessel might be released. Answer was sent that she might be released, if there had been no legal condemnation of the vessel; the answer did not arrive seasonably, and the vessel was condemned and sold. Allowance was made to place the claimant in a situation as favorable as if the instructions of the government had been seasonably received.

The Albion left London with a cargo of merchandise for trade with the Indians on the northwest coast of America, designing to return with a load of spars for the British navy. She had a license from the British government to engage in trade with the Indians, provided she did not deal in furs; and to cut timber within the British territories on that coast.

She had also a license from the Hudson's Bay Company to cut timber, on certain specified terms, on Vancouver's Island; and the master of the vessel was authorized to arrange for and cut timber on the American side of the straits, opposite the island, if he could obtain authority for this purpose.

The vessel arrived out in 1850 at Vancouver's Island; and, not being able to obtain timber conveniently by arrangement with the Hudson's Bay Company, proceeded to the American coast in Oregon Territory; and, finding no person to contract with, commenced trade with the Indians, and the cutting and felling of timber there.

Information was communicated to Astoria of her proceedings, and Mr. Adair, the collector of that port, ordered her seizure for entering the United States territory, felling timber, and trading with the Indians in violation of law.

She was seized in April, 1850, at Dungeness, having cut forty-two spars, from sixty to ninety-six feet in length, and from eighteen to

twenty-six inches square at the but, part of which were on board the vessel, and the others were lying by her side.

The officers report that she had some clothing, hardware, blankets, &c., on board, but the larger portion of her cargo had been sold to Indians or settlers. The vessel was libelled and condemned, and was sold in the fall of 1850.

After the seizure, application was made at Washington, beseeching the clemency of the United States government, so far as it might be extended; and, on January 11, 1851, Mr. Corwin, the Secretary of the Treasury, gave conditional instructions to the prosecuting officer of the government, "to release the Albion in case there had been not legal condemnation of the vessel at the date on which he should receive the instructions of the department, and on payment of the costs. attending the seizure."

The vessel had been condemned and sold some two months prior to the date of these instructions, so that they could not be carried out. HANNEN, agent and counsel of Great Britain.

THOMAS, agent and counsel of United States.

UPHAM, United States Commissioner :

The facts in this case have been briefly, but fully, recited; and the question arises how far, if at all, this commission can interpose the clemency of the government to relieve the claimant from the loss sustained by him.

It should be borne in mind that we have but one side of the case. Since the filing of the claim before us, it has been impossible to obtain evidence from officers in Oregon on the subject; and the case has been submitted, both at Washington and here, solely on the memorial of the claimant and such evidence as he has furnished.

It appears that the Albion left England fully instructed as to the necessity of obtaining licenses to trade with the Indians, and to cut timber within the British possessions, or within those of the Hudson's Bay Company. This would seem to indicate to the owner and master of the vessel, pretty clearly, that similar authority would be required to do such acts within the American Territory of Oregon, where we had then a duly organized government.

The timber obtained was felled on the coast opposite the Island of Vancouver. The master of the vessel was probably induced to go there, because he could obtain timber on the coast, of as good quality as in Vancouver's Island, free of expense; while it appears, from the papers in the case, it could not be had from Vancouver's Island without the payment of compensation to the agents of the Hudson's Bay Company, who had a trading post and establishment there. He could also carry on trade with the Indians within the American territories without any restriction as to dealing in furs.

The timber was cut at a point on the coast 180 miles by land from Astoria, the capital of Oregon, but a much further distance from it by water. Intelligence was received at Astoria of this trespass upon the territory of the United States and violation of its laws, and the vessel was ordered to be seized, and the proceedings were had which have caused the hardship complained of.

When the officers of the government heard of this encroachment on the Territory, what was to be done? It was probably not the first trespass of the kind, nor likely to be the last, unless prompt measures were taken for redress. It would hardly have answered to have warned off the Albion, and permitted the matter to pass in this manner; and