States by referring claims arising out of the conduct of our military operations, to a tribunal which, being totally disconnected from, and independent of the War Department, cannot have such knowledge of facts or of the means of obtaining them, as will be absolutely necessary to protect the interests of the United States in controversies of this character. Claims will be brought before these commissioners whose sessions may be in places remote from Washington. The War Department may have no knowledge of such claims, and, having no responsibility, will have no occasion to require them to be investigated by its officers; so that vast amounts may be awarded against the government, by default of proofs, and the facts in defence may be known only to those military officers who took part in making the seizures complained of. These and other similar objections will, I doubt not, be weighed by you and by the Secretary of State. I have thought it proper merely to call attention to them. April 18, 1864. (Signed) WILLIAM WHITING, Solicitor of the War Department. [The draft of the bill above referred to was presented in the Senate, and referred to a committee; but its action upon the subject was designedly postponed.] [No. 528.] Liability of Navy Agents, &c., to Trial by Courts-Martial. The Secretary of the Navy, by G. V. Fox, his Assistant, submits to the Solicitor of the War Department the following question: Whether navy agents, naval storekeepers, and the clerks of naval storekeepers, “ delivering certificate vouchers, or receipts, without having full knowledge of the truth of the facts stated therein, and with intent to cheat, defraud, or injure the United States," are subject under the Act (of March 2, 1863), or any other act, to the rules and regulations made for the government of the military and naval forces, and whether they are subject to trial by courts-martial OPINION. The first section of the Act passed March 2, 1863, refers to persons in the land or naval forces of the United States, or in the "militia in actual service." The navy agents, storekeepers, and their clerks, belong to, or are classed with the civil establishment at the navy yards and stations, having specific duties assigned them of a clerical or administrative nature, to be performed on land, under instructions from the Secretary of the Navy, as prescribed by statutes; and being without rank or command over enlisted men, and not being enlisted as in the naval service, are not held by law as part of the naval forces, and therefore are not, under the Act of 1863 referred to, or under any other statute known to me, liable to trial by a court-martial for the offences specified. (Signed) April 22, 1864. WILLIAM WHITING, Solicitor of the War Department. [No. 531.] Coin on the Person of a Public Enemy on Land, its Liability to Capture. William Price, Esq., United States District Attorney, Baltimore, writes to Mr. Whiting, enclosing an opinion of Judge Giles, upon the right of the government to condemn money as enemy's property, when taken from the person of an enemy on land, in our own territory. The Judge decides against the right. Mr. Price asks whether he shall take an appeal. OPINION. I have received your letter of the 22d instant, enclosing a copy of the decision of Judge Giles in the case of the United States vs. "A Canoe and certain Merchandise and Money," libelled in the District Court. It appears that the specie found upon the person of the captured rebel is not regarded by Judge Giles as liable to condemnation, because the statutes referred to as those upon which the libel was brought, viz., the Acts of July 13, 1861, and May 20, 1862, do not provide for or authorize the seizure or confiscation of money, but only of merchandise, goods and chattels, and the vehicles conveying them. The Act of July 17, 1862, is referred to by Judge Giles; but he says that the captured rebel is not "shown to have been engaged in armed rebellion," and that the present is not a proceeding under that Act. The facts in the case are but briefly stated by Judge Giles; but enough, I think, appears, or may be fairly presumed from what is admitted, to make it advisable to institute some new proceeding, based upon the sixth and seventh sections of the Act of July 17, 1862, chapter 195, and also upon the 4th section of the Act of March 12, 1863, chapter 120. That the owner of this gold was "aiding and abetting the rebellion," even if he was not actually "engaged in armed rebellion," can hardly be doubted when the facts connected with his capture are fairly considered; and this brings him within the terms of the Act of 1862. It may be found, upon inquiry, that this gold was brought from one of the States declared in insurrection, into Maryland; and it is certain that the owner was not a Treasury agent, who alone under the statute of 1863, is authorized to bring such property across the lines, without a lawful clearance, and it is also certain that he had no such clearance. If, therefore, property," as the term is used in the statute, includes specie, and if the gold in question was brought from Virginia, as may be presumed from the residence of the owner, if no evidence to the contrary be adduced, it is liable to condemnation under section 4 of the statute of 1863, chapter 120. If these positions appear to you to be maintainable, and the money is still where Judge Giles ordered it to be placed, or where it can be reached by process, I would suggest the inquiry, whether it would not be well to take such course as will enable you to obtain the judgment of the court upon this view of the facts and law, either by filing a new libel, or otherwise, as you may find practicable and expedient. (Signed) April 30, 1864. WILLIAM WHITING, Solicitor of the War Department. [No. 532.] Payment of Creditors' Claims out of Proceeds of Confiscated Property. Messrs. McGraw and Wills, attorneys for the creditors of C. C. Spaulding, request payment of their claims out of the proceeds of property confiscated on account of his having been engaged in illegal traffic with the enemy. OPINION. When the property of public enemies, or of one who has given aid and comfort to public enemies, by engaging in illegal commerce with them, has been vested in the United States by capture, forfeiture, confiscation, or other process, military or judicial, there is no provision of martial or of municipal law by which the government is required or allowed to distribute the proceeds of that property among those who may have pecuniary claims against such enemies or such delinquents. The law requires such proceeds to be otherwise appropriated. I therefore recommend the Secretary of War to decline action on the petition. May 4, 1864. (Signed) WILLIAM WHITING, Solicitor of the War Department. [See also, on the same subject, the case of Tracy Irwin & Co. No. 1437.] [No. 535.] JAMES SHEPPARD Claims restoration of cotton and other property seized upon his two plantations near Pine Bluff, on the Arkansas River, by the forces of the United States as abandoned property, alleging that he has taken the oath of amnesty, and has always been a Union man, and that his plantations in Arkansas were not abandoned. OPINION. The application of James Sheppard, lately resident in Henrico County, Va., for the restoration of certain bales of cotton claimed by him as the produce of his plantations in Arkansas, with indorsements filed by him in support of his claim, and also the application of W. P. Grace, heretofore referred to me, claiming the same cotton by purchase, are now returned, upon the application of the parties, for the reason that the property is now said to be in the possession of an agent of the Treasury, and one of the claimants wishes that it may be sold, and that his claims to the proceeds may be considered by the Treasury Department. To this course I see no objection, and recommend that these applications, and the accompanying documents, be accordingly transmitted to the proper officers of the Treasury. In this, as in some similar cases, I have hesitated to express a definite opinion, in advance of the promulgation of some general rule or the adoption of some uniform policy on the part of the government of the United States in relation to property captured, destroyed or damaged in the States in rebellion, not wishing, on the one hand, to discourage persons who might be thought to have some equitable claims to a liberal or lenient treatment, if such should seem good to the general government, or, on the other hand, to put any obstacle, however slight, in the way of the exercise of the legal rights of the United States against their enemies, if the condition of the country during the war, or after its close, should render it advisable to insist upon the strict enforcement of those rights. (Signed) August 5, 1864. WILLIAM WHITING, Solicitor of the War Department. [No. 707.] CLAIM FOR DAMAGE TO PROPERTY. The Secretary of State encloses a copy of a communication from the British Minister, presenting the claim of Mr. Timothy Dowling, for damages. done to his property in Vicksburg, Mississippi, by persons in the United States service. OPINION. I concur in the opinion of the Military Commission, which examined the case, that the government is not responsible for the damages claimed, though for reasons widely different from those stated by the Commission; I do not admit that, as an alien permanently resident in the United States, the complainant has any claim for indemnity for property used or injured in the prosecution of the war. Whether a private claim exists against Major General Ord, and the officers under his command, as assumed in the finding of the Commission, it is not deemed proper to express an opinion. July 25, 1864. (Signed) WILLIAM WHITING, Solicitor of the War Department. [No. 713.] OATH REQUIRED OF ALIENS. The Hon. Secretary of State encloses a copy of a communication from the British Minister, relative to an objectionable oath exacted from foreigners in the Department of the Gulf. OPINION. The oath required of alien British subjects imposes, upon those who take it, a moral obligation to observe in good faith Her Majesty's proclamation of neutrality, and to do nothing directly or indirectly to aid and comfort the enemies of the United States, so long as Great Britain and the United States shall remain at peace. To open to foreign commerce the port of New Orleans, during the progress of the civil war, was an act of national courtesy, which might lawfully have been withheld or refused. Those who avail themselves of the act may justly be required to give to this government assurance of the sincerity of their neutrality; and they ought not to avail themselves of a privilege without abandoning any intention to use that privilege against the government which grants it. Those aliens who intend to become enemies of the United States, in violation of Her Majesty's proclamation, and of the laws of nations, ought not to be permitted to enter any port of the United States while the war lasts. Those who take the oath do not forfeit thereby any right guaranteed by the laws of England or by the laws of nations. In any event, the privilege of commercial intercourse may, by the law of nations, be restricted in time of war by the United States, in such manner as public safety requires, and the required oath may be deemed one of those restrictions. (Signed) July 26, 1864. WILLIAM WHITING, Solicitor of the War Department. [No. 714.] ROMAIN DUPRE. The Hon. Secretary of State transmits a copy of a note from the Chargé d'Affaires of France, presenting the claim of Romain Dupré for six bales of cotton seized on his plantation in Placquemine, Louisiana, by Major Hamilton, of the One Hundred and Tenth New York Volunteers. |