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his money. This was forwarded through Maj. Gen. C. C. Washburne, then in command of the United States forces at Memphis, with his indorsement thereon as follows, viz:
HEADQUARTERS DISTRICT WEST TENNESSEE,
Memphis, Tenn., May 27, 1865. Respectfully forwarded to the Secretary of War, with the remark that the facts in the within paper are accurately stated so far as I can ascertain. The gold taken was taken a short time before I took command at Memphis in April, 1864, and went into the hands of General Hurlbut, by whom it was taken away when he was relieved. I found Kenofsky in prison and in irons when I took command, and soon after released him and sent him out of the lines that he might return to Grenada, Miss. Federal officers who were in Grenada in 1863 assure me that he showed our officers and men great attention, and officers now occupying the post of Grenada assure me that it is known that he was always a friend to our Government. I think he was roughly handled, probably more so than the facts would justify.
C. C. WASHBURNE,
Major-General. With this indorsement the petition of Kenofsky reached Secretary of War Stanton, and was by him referred to Lieutenant-General Grant, with direction for him to require of General Hurlbut an explanation of the subject and a statement of the whereabouts of the gold.
In due course of official routine the following statement was received from General Hurlbut, viz:
NEW ORLEANS, June 22, 1865. I have the honor to report on the within case, principally from memory, as the records of the Sixteenth Corps are not accessible to me.
Some time in March, 1864, a Jew cotton and gold dealer and smuggler was arrested by the provost-marshal's force at Memphis in the act of passing the lines south with a quantity of gold.
This was contrary to Treasury regulations, the orders of General Grant, and my own orders.
The case was reported to me by Capt. George A. Williams, first lieutenant, United States Infantry, then provost-marshal at Memphis. I directed the man to be imprisoned and tried, and ordered the gold to be confiscated to the use of the United States, all of which appears upon the records of the Sixteenth Army Corps.
The gold, the amount of which I can not now give, was sent, under my direction, by Captain Williams, to St. Louis or Chicago and converted into paper currency at proper preniums.
My headquarters were removed to Cairo. At that place the messenger in charge reported to me the amount of United States notes the produce of the exchange, $8,861.
This amount was taken up by me and has been lawfully used in the secret seryice of the United States, for which I am at all times ready to account and display proper vouchers.
The annexed account will show the statement of this particular fund up to the 4th May, 1864, when I ceased to command the Sixteenth Army Corps.
The amount of $5,001, charged to Lieut. Col. W. H. Thurston, assistant inspector-general Sixteenth Army Corps, was left with him for use of my successor in command of the corps. No successor was appointed, and that sum was paid back to me by him and expended in the Department of the Gulf.
I am satisfied that this man has no claim on the United States, but request that a report be required from Capt. George A. Williams, First United States Infantry, as to his merits. I am, very respectfully,
S. A. HURLBUT,
Major-General Volunteers. The Treasury regulation in force at the date of the arrest of Kenofsky having relation to gold coin is as follows, viz:
All transportation of coin or bullion to any State or section heretofore declared to be in insurrection is absolutely prohibited, except for military purposes, and under military orders, or under the special license of the President, and no payment of gold or silver or foreign bills of exchange shall be made for cotton or other merchandise within any such State or section. All cotton or other merchandise purchased in any such State or section to be paid for therein, directly or indirectly, in gold or silver or foreign bills of exchange shall be forfeited to the United States. (Reg. XXII, Trade Regulations, September 11, 1863.)
This regulation was issued under and by virtue of the authority given to the Secretary of the Treasury by section 3 of the act of May 20, 1863.
But the same act, in section 4, provides:
That the proceedings for the penalties and forfeitures accruing under this act may be pursued, and the same may be mitigated or remitted by the Secretary of the Treasury in the modes prescribed by the eighth and ninth sections of the act of July 13, 1861, to which this act is supplementary.
Section 9 of the act referred to declared:
That proceedings on seizures for forfeitures under this act may be pursued in the courts of the United States in any district into which the property so seized may be taken and proceedings instituted; and such courts shall have and entertain as full jurisdiction over the same as if the seizure was made in that district.
The following order was issued by the Secretary of War to the officers and soldiers of the Army in aid of the enforcement of the Treasury regulations:
September 11, 1863. The attention of all officers and soldiers of the Army of the United States, whether volunteer or regular, is specially directed to the revised regulations of the Secretary of the Treasury, approved by the President, dated September 11, 1863, and they will in all respects observe General Order of this Department No. 88. and dated March 31, 1863, in regard to said revised regulations, as if the same had been originally framed and promulgated with reference to them.
EDWIN M. STANTON,
Secretary of War. General Order 88, here referred to, provided, among other things, that
All other property abandoned or captured or seized as aforesaid shall be delivered to the agent appointed by the Secretary of the Treasury.
Kenofsky's gold came within this provision, and the disposition made of it was contrary to both the law and the Treasury regulations.
The claimant was diligent in pursuing his remedy. He commenced in May, 1865, and followed it in all the ways open to him until the date of his death, which occurred in the city of New Orleans, September 29, 1880. After his death his widow presented her petition to Congress for relief. She died on or about February 7, 1881, leaving seven children in destitution. The lawfully appointed tutor of the children and many citizens of New Orleans then petitioned on behalf of the orphans (who, it is represented, were, at the date of the said petition now before your committee, being supported by the Widows and Orphans' Home of said city) for relief and the repayment to the estate of Kenofsky of the money taken from him as hereinbefore stated.
The United States seems to have received the use and benefit of said money, but not through the methods provided by law. It therefore seems to your committee just that the amount for which said gold was sold, to wit, the sum of $8,861, should be paid to the legal representatives of the said Martin Kenofsky, and to that end report herewith a bill with a recommendation that it do pass.
March 12, 1884.
(Senate Report No. 310.) Mr. Sherman, from the Committee on Foreign Relations, submitted the following report:
The committee, having considered S. Res. 46, being a “Joint resolution relative to an accepted draft in the Department of State, referred to them by the Senate January 23, 1884, beg leave to report as follows:
The draft referred to bears date “New York, August 19, 1859," and was drawn by Santiago Vidaurri, governor of Nuevo Leon and Coahuila, by Ignacio Galindo, upon J. M. Mata, minister from Mexico to the United States, to the order of J. M. Mata, and made payable at the Bank of Republic, New York, in the sum of $8,950, with interest at the rate of 6 per cent per annum, one year after date of said draft, and was duly accepted by the said J. M. Mata, and indorsed by him in blank. It bears subsequent indorsements as follows: “Pay Messrs. Howland & Aspinwall, or order, W. H. Callender;” “Pay Messrs. T. B. Tecker & Co., or order, Howland & Aspinwall, without recourse;" “Pay to Messrs. Howland & Aspinwall, without recourse, T. B. Tecker & Co;” “without recourse to Howland & Aspinwall.”
It appears from the evidence submitted to the committee by the Department of State that this draft was given in part payment for arms purchased by the Republic of Mexico through Señor J. M. Mata, its minister; that the arms for which this draft was given in payment were delivered on the 19th of August, 1859, the date of the draft under consideration; that the purchases referred to were evidenced by four drafts for various amounts, drawn and accepted by the individuals named in this case, and in the general form herein set forth, and that payment on the same having been refused on presentation, they were duly protested, and subsequently filed with the United States and Mexican Claims Commission under convention of July 4, 1868, for adjudication by that body; that in due course the same were referred to the umpire, Sir Edward Thornton, who decided that the claims thus evidenced were not properly within the jurisdiction and purview of the said commission, and should not be considered by the same, and that the four drafts were thereupon turned over to the custody of the Department of State by the said commission; that during the first session of the Forty-sixth Congress the Secretary of State was directed, by the terms of public resolution No. 15, “to deliver to the person justly entitled to the possession thereof” three of the said drafts, leaving this draft, now under consideration, in the custody of the Department of State.
The committee, therefore, in consideration of the foregoing facts, and that the joint resolution provides that the Secretary of State shall retain a copy of said draft with all indorsements and protests thereon, beg to recommend that the Senate agree to the said joint resolution as amended by the committee, such amendments being necessary to an accurate description of the said draft.
April 24, 1884.
[Senate Report No. 494. ] Mr. Miller, of California, from the Committee on Foreign Relations, submitted the following report:
The Committee on Foreign Relations, to which was referred the petition of Miguel Capella, a citizen or subject of Spain, making claim for compensation from the United States for losses sustained during the war of the rebellion, in Alabama, begs leave to report the same back to the Senate and asks to be relieved from further consideration thereof, and recommends that the said petition and accompanying papers be taken from the files of the Senate and returned to the petitioner.
The reason for the action of the committee herein is to be found in the second clause of the fourth subdivision of Rule No. 7 of the Rules of the Senate, which is as follows:
But no petition or memorial or other paper signed by citizens or subjects of a foreign power shall be received, unless the same be transmitted to the Senate by the President.
This petition not having been transmitted to the Senate by the President of the United States, the petitioner being, as the petition states, a subject of Spain, the committee is of opinion that it has not jurisdiction of the matter.
May 14, 1884.
[Senate Report No. 548.]
Mr. Miller, of California, from the Committee on Foreign Relations, submitted the following report:
The Committee on Foreign Relations, to whom was referred the petition of Philip Schatzle, of Germany, have had the same under consideration and beg leave to report that there is nothing in the petition which, if truly stated, places the United States under any obligation to appropriate money for the support of the petitioner.
The committee therefore ask to be discharged from the further consideration of the subject.
[See p. 513.) July 5, 1884.
[Senate Report No. 893.] Mr. Morgan, from the Committee on Foreign Relations, submitted the following report:
The Committee on Foreign Relations, to whom was referred Senate resolution Mis. Doc. No. 70, have considered the same, and report, that the resolution should not pass, and ask that the committee be discharged from its further consideration.
In the ninth article of the treaty of 1819 with Spain the United States engaged “to cause satisfaction to be made for injuries, if any, which by process of law shall be established to have been suffered by the Spanish officers and individual Spanish inhabitants by the late operations of the American army in Florida.”
This was not an engagement to satisfy admitted claims, but such claims, if any, as could be established by process of law. When established, the claims were to be satisfied to the persons injured by the late operations of the American army in Florida, and not to Spain.
The United States did not consent to be sued by the claimants in its own courts, as constituted for the ordinary administration of justice, and according to their usual procedure, nor did they engage to create judicial tribunals to hear and determine these claims, with jurisdiction and process adequate to conduct a litigation between the United States and the claimants. The extent of the engagement was that the claimants should have the right of access to a tribunal constituted by law, having the power to hear and determine the fact that the claimants were entitled to satisfaction for injuries sustained, etc., before which they could establish their claims and the right to process of law, if any was needed, in aid of such proceeding.
The nature of the tribunal to be organized by law was left undefined by the treaty, and was a matter that was therefore left to the discretion of the United States.
The tribunal organized to hear and determine these claims by the act of 1823, to carry into effect the ninth article, is a full execution of the treaty by the United States. Process of law is supplied by that act through which the claims have been heard and determined.
In the case of Ferreiava v. The United States the Supreme Court of the United States examined this whole subject. In their opinion the court say: “The treaty certainly created no tribunal by which these damages were to be adjusted, and gives no authority to any court of justice to inquire into or adjust the amount which the United States were to pay to the respective parties who had suffered damage from the causes mentioned in the treaty. It rested with Congress to provide one according to treaty stipulations."
This was done by the act of March 3, 1823, directing the judges of certain courts to “receive and adjust all claims” of the description mentioned in the ninth article of the treaty, and giving the Secretary of the Treasury the power to revise and settle the claims reported to him by the judges, “ on being satisfied that the same were just and equitable, within the provisions of said treaty.”
In the case of Ferreiava this law was construed and settled by the Supreme Court as being in accordance with the treaty, and as creating a lawful commission with full power to settle the claims provided for in the ninth article. Congress has therefore done its full duty in providing by law for the execution of the treaty.
In commenting upon the effect of the language of the treaty respecting the words "process of law,” the Supreme Court say: “It is said, however, on the part of the claimant, that the treaty requires that the injured parties should have an opportunity of establishing their claims by a process of law; that process of law means a judicial proceeding in a court of justice; and that the right of supervision given to the Secretary over the decision of the district judge is therefore a violation of the treaty. The court think differently, and that the Government of this country is not liable to the reproach of having broken its faith with Spain. The tribunals established are substantially the same with those usually created when one nation agrees by treaty to pay debts or damages which may be found to be due to the citizens of another country. This treaty meant nothing more than the tribunal and mode of proceeding ordinarily established on such occasions, and well known and well understood when treaty obligations of this description are undertaken. But if it were admitted to be otherwise, it is a question between Spain and that department of the Government which is charged with our foreign relations, and with which the judicial branch has no concern. Certainly the tribunal which acts under the law of Congress, and derives all its authority from it, can not