FOREIGNERS NOT ENTITLED TO INDEMNITY.

355

He can claim of this government no indemnity for wounds received in battle, or for loss of time or suffering by being captured and imprisoned. It can make no difference whether his acts of hostility to the United States are committed openly under a rebel flag, or secretly in the loyal States, where his enmity is most dangerous. If it be said that he has violated no municipal law, and therefore ought not to be deprived of liberty without indemnity, it must be remembered that if he has violated any of the laws of war, he may have thereby committed an offence more dangerous to the country, and more destructive in its results, than any crime defined in statutes."

"If a person detained in custody in consequence of having violated the laws of war, and for the purpose of preventing hostilities, be liberated from confinement without having been indicted by a grand jury, it does not follow therefrom that he has committed no crime. He may have been guilty of grave offences, while the government may not have deemed it necessary to prosecute him. Clemency and forbearance are not a just foundation for a claim of indemnity. An offender may not have been indicted, because the crime committed, being purely a military crime, or a crime against martial law, may not have come within the jurisdiction of civil tribunals. In such a case, the arrest and imprisonment, founded on martial law, justified by military necessity, cannot be adjudicated by civil tribunals. If the person so arrested is the subject of a foreign power, and claims exemption from arrest and custody for that reason, he can have no right to indemnity under any circumstances by reason of being an alien, until the fact of his alienage is made known to the government.

His claim to indemnity thereafter will depend on a just application of the principles already stated."*

When a claim of a foreigner is presented for examination, it may be found useful to make investigation upon the following questions :

1. What is the proof that the claimant is, in fact, an alien?

2. Was the injury complained of caused by the warlike operations of the Union army or navy?

3. Whether he has given any aid and comfort to the enemy?

4. Whether he has been naturalized, or has taken the initial steps for that purpose? +

5. Whether he has exercised the elective franchise in any State, or in the United States?

6. Whether he has acquired a domicile in the Confederate States?

7. If not, whether he had a temporary residence there, and whether he withdrew himself and his property, or attempted to do so, within reasonable time? And if he failed to do so, whether his failure was caused by the act of the United States, or of those acting by authority thereof?

8. Whether he had a mercantile domicile, or a house of trade, in the enemy's country?

9. Whether the property claimed was the produce of land owned by the claimant in the hostile districts?

* Military Arrests, pp. 211, 212, 10th edition. See Opinion, No. 357, in the case of Captain Sherwin, a subject of England, p. 365. Ibid., No. 362, in the case of Theodore Moreau, a subject of France, p. 368.

By proclamation 8 May, 1863 President Lincoln disallowed the plea of alienage to all foreigners who were enrolled among the military forces of the United States, if they were of lawful age for such service, and had made the usual preliminary oaths for naturalization, and who should be found within the States after sixty days, or had exercised any political franchise under our laws.

10. Has the claimant violated any law of the United States, having reference to his own conduct, or to the property in question?

11. Is there any treaty between the United States and the country to which the claimant owes allegiance, whereby the claimant's rights are excepted from the general law of nations and of war?

12. Is there any statute of the United States authorizing compensation to aliens for the injury complained of?

13. Is there any appropriation of money applicable by law to the satisfaction of the claim proposed ?

OPINIONS.

[THE following opinions, prepared by the author while Solicitor of the War Department, have been extracted from the records of his office, and are now added as illustrations of the application of some of the principles stated in the essay on War Claims.]

[No. 36.]

HARSBERG & STEIFEL,

Claimants for the value of 400 barrels of flour captured by our troops at Fredericksburg, and alleged to belong to that firm.

OPINION.

Military supplies, provisions, &c., have been frequently captured by our troops in insurrectionary districts, and used for the support of the army. Such supplies, whether the property of loyal men or of the enemy, are contraband of war, and are subject to lawful capture.

Whether the claimants, if loyal, are entitled to indemnity or not is not now material, because, no appropriation having been made by Congress for payment of such indemnity, this Department has no authority to allow or pay the same.

(Signed)

April 20, 1863.

WILLIAM WHITING, Solicitor of the War Department.

[No. 55.]

J. W. SEAVER,

Petitioner for an order allowing him to collect a debt of $32,000 from L. N. Lane, of New Orleans, a registered enemy of the United States.

OPINION.

The owner of the property comes within the provisions of the 6th and 7th sections of the Act of July 17, 1862, ch. 195.

(358)

In this case, it is the duty of the President to seize such property, and by proceedings in rem to have it converted into money and paid over to the Treasurer of the United States.

There is no provision in the Act saving the rights of creditors; but all conveyances made against the express provisions of this Act are void in law. A conveyance such as is requested would be void. The Secretary has no power to set aside an Act of Congress, and cannot sanction such conveyance, however strong the equity of the case may be.

The precedent would be a dangerous one, even if the law would sanction it, as the door would be open to innumerable frauds and evasions of the confiscation laws.

The remedy of the petitioner is by application to Congress.

(Signed)

March 6, 1863.

WILLIAM WHITING, Solicitor of the War Department.

[No. 88.]

A. KERNAHAN.

The Hon. Secretary of State enclosed letter of Lord Lyons relative to the claim of A. Kernahan, a British subject, for property seized by order of General Butler.

MEMORANDUM.

Kernahan appears to have aided and abetted the enemy in several ways, and to have forfeited all claim to be treated as a neutral British subject. W. W.

(Signed)

[No. 95.]

Claim against Confiscated Property.

W. & C. K. HERRICK.

Claimants against the confiscated property of Bloomfield & Steel, of New

Orleans.

OPINION.

I am not aware of any provision of the Statutes of the United States which would authorize you, as creditors of Bloomfield & Steel, to recover your claims from the United States out of the proceeds of the property of such debtors after it has been lawfully confiscated.

WILLIAM WHITING,

Solicitor of the War Department.

(Signed)

April 18, 1863.

See letter to Herrick of April 18.