against the claimant, which were the cause of his arrest and banishment, and that by reason thereof the British government was liable to his reclamation for damages.

The commission, without hearing any argument for the defense, unanimously disallowed the claim.

Hubbell's case.

William Wheeler Hubbell vs. Great Britain, No. 17.

The memorial of the claimant alleged, in effect, that prior to the 1st of July, 1814, the claimant was the inventor of a certain improvement in breech-loading fire-arms, for which letters patent were issued to him by the United States, dated 1st July, 1844.

That in the year 1844 the British government, through Her Majesty's consul at Philadelphia, ordered of the claimant two specimen guns made under the claimant's invention and patent, which were thereupon procured to be made by the claimant, and furnished through the consul to Her Majesty's government in 1845, and paid for by that government.

The memorial further alleged that "it was understood and agreed that the invention of said mechanical principle" of the claimant "should be paid for by Her Majesty's government whenever it should be determined upon for adoption in Her Majesty's service." That after the receipt of the specimen guns, in 1845, it was determined by Her Majesty's government, in the same year, that it was not expedient to adopt them for use, but that subsequently, on the 14th March, 1865, Her Majesty's government made "a full determination of adoption in Her Majesty's service of breech-loading fire-arms" known as the Snyder Enfield rifle, containing and embodying the mechanical principle covered by the claimant's invention and patent; and that after such official "determination of adoption," in March, 1865, Her Majesty's government issued to Her Majesty's army and navy 500,000 muskets of the pattern named and covered by the invention and patent of the claimant.

The claimant claimed a royalty of $1 each upon these muskets, amounting to $500,000, besides interest.

A demurrer was interposed by Her Majesty's counsel to the memorial, on the ground that the commission had no jurisdiction of the claim stated in the memorial, and that the memorial alleged no sufficient ground of claim against Great Britain, in that

1. The claim was based upon a contract, express or implied, which was not a claim within the terms or intent of the treaty, not being a claim" arising out of acts committed against the persons or property of citizens of the United States."

2. That if such claim on contract were within the jurisdiction given by the treaty, the claimant could have no standing before the commission as an international tribunal until he had exhausted the remedies in

all the municipal courts of Great Britain, and until justice had been denied him by such tribunals in re minime dubia.

3. That the facts alleged in the memorial established no such contract as claimed by the claimant for the payment of a royalty upon guns subsequently used and covered by his invention.

4. That no act of Her Majesty's government was alleged as happening within treaty time, except the "full determination of adoption " alleged to have been made in March, 1865, and that this was not an act committed against the property of the claimant.

5. That the claimant did not appear to have had any property in his alleged invention in England, and that his property in the invention in the United States had expired prior to March, 1865, and was open to the whole world.

On hearing on the demurrer, the claim was unanimously disallowed by the commission.

V. CLAIMS OF SUBJECTS OF HER BRITANNIC MAJESTY AGAINST THE UNITED STATES.

1.-Claims for property alleged to have been taken and appropriated to the use of the United States.

The claims embraced under this head were very numerous, and arose under various circumstances. Most of them may be grouped under the following heads:

a. Those for property in the nature of military supplies, taken by authorized officers for military use, and vouchers given for the same. These claims arose sometimes within the loyal States, sometimes within the Federal lines, in territory reclaimed from the enemy within the insurrectionary States, and sometimes within the enemy's lines. Among them may be named the case of Thomas Ward, No. 1, which was for cotton taken from the claimant at Wilmington, N. C., shortly after the capture of that city by the Federal forces, and appropriated for the use of the United States hospital.

On the part of the United States it was contended that the claimant, being a resident of North Carolina, was, by domicile, an enemy of the United States. He was found in a town captured by them, and his property was liable to levies and contributions for their benefit. The voucher given was in the following words:

OFFICE PROVOST-MARSHAL GENERAL,

Wilmington, N. C., March 3, 1865.

Received of Thomas Ward, two bales of cotton.

P. C. HAYES,

Lieut. Col. and Provost-Marshal General, U. S. A.,

and was accompanied by a certificate of an assistant surgeon that the

cotton was used for beds in the hospital.

The award of the commission, in which all the members joined, was as follows:

Without expressing any opinion on the effect to be given to the evidence of Thomas Ward and Sarah Ward, the commissioners are of the opinion that the receipts and vouchers given by acknowledged officers of the Army at the time, show that the cotton was taken from the claimant for the use of the United States. This we think sufficient, in the absence of all countervailing proof, to show the taking by the United States. Nothing appears to indicate that it was taken as enemy's property, and the question of the right so to take is, therefore, not involved. It was taken nine days after the capture of Wilmington, N. C., by the United States, and the possession of the place ever after continued in the United States. We are not, upon the facts before us, prepared to hold that, at the time of the taking of the cotton, the place was enemy's territory. We agree, therefore, that the claimant is entitled to compensation for the property, the amount being the average value of cotton usually produced in that neighborhood, with interest at six per cent. per annum until January 31, 1873.

We therefore award that the sum of $620.44 be paid by the Government of the United States to the government of Her Britannic Majesty in respect of the claim of Thomas Ward.

In the case of John Wilkinson, No. 28, the claim was for beef taken from the claimant on Matagorda Island, Texas, by a commissary of the United States in 1863, and for which vouchers in the usual form were given. The claimant was domiciled and his property situated within the insurrectionary State of Texas, and apparently not within the actual military lines of the United States at the time of the taking. The vouchers were all signed by an authorized officer, and recited, "I have taken for military purposes from John Wilkinson," the property described, and that the same was necessary for the public service, and would be accounted for in the officer's monthly returns.

On the part of the United States it was claimed that the taking was a capture under the right of war, and that no liability for payment arose against the United States.

An award was made in favor of the claimant, in which all the commissioners joined.

The same principle was applied in all other cases of like character.

b. Claims for property taken under the command of authorized officers of the United States for military use, whether in the loyal States or within those portions of the insurrectionary States permanently occupied by the Federal forces, or within those portions of the insurrec. tionary States not so reclaimed by the United States, and for which property no voucher was given.

The claim of Jonathan Braithwaite, No. 31, was for a horse taken for cavalry use in Kentucky, a loyal State, in 1864.

On the part of the United States it was contended that the claimant, being domiciled in Kentucky, had precisely the same remedy for prop. erty taken for public use, as citizens of the United States residing within the loyal States; that the laws of the United States afforded him the

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proper means of securing compensation before the proper bureau of the War Department, and that the case was not one for international reclamation.

The commission gave an award in favor of the claimant, in which all the commissioners joined.

In the case of Samuel Brook, No. 99, the claim was for certain tarpaulins taken by an authorized officer for the use of the United States, at Memphis, Tenn., in June, 1862, shortly after the capture of that city by the Federal forces.

An award was made in favor of the claimant, Mr. Commissioner Frazer dissenting upon the question of the sufficiency of proofs, but the commissioners all agreeing as to the principle involved.

It may be stated generally that the commission were unanimous in the allowance of claims for property coming under this head when taken within the loyal States or within those portions of the insurrectionary States permanently occupied by the Federal forces, except when something in the nature of the property or in the conduct of the claimant took him out of the condition of neutrality. Thus, for instance, in the case of Robert Davidson, No. 66, the claim was for gun-carriages and other artillery apparatus, manufactured by the claimant for the use of the confederate government, and remaining in his possession at the surrender of New Orleans, together with material for use in the same manufacture, which was taken and appropriated by the Federal forces, under the orders of General Banks, some months after the capture of New Orleans. The claim was unanimously disallowed.

Where, however, the taking of the property by the Federal forces and the domicile of the claimant were within the enemy's lines, or in those portions of the enemy's country not reclaimed from the enemy, the majority of the commission, on satisfactory evidence that the property was taken by authority, or actually appropriated to military use, made awards in favor of the claimants, Mr. Commissioner Frazer dissenting, on the ground that one domiciled in the country of the enemy was himself an enemy in law, whether an actual enemy or not; and by well-settled principles of public law his sovereign had no right in such cases to intervene in his behalf against the ordinary treatment of him as an enemy. In the principle thus held by Mr. Commissioner Frazer, I am advised that the presiding commissioner agreed; but in view of the fact that the United States had, by the establishment of the Southern claims commission, made provision for the compensation of its own citizens domiciled within the enemy's country "who remained loyal adherents to the cause and the Government of the United States during the war," for property taken in like manner, (16 Stat. at L., 524, § 2,) he was of opinion that neutral aliens in like situation should be entitled to the same degree of compensation, and, if British subjects, to a standing before the commission for that end.

Upon this question Mr. Commissioner Frazer held that any provision made for the payment of such claims to citizens was not in discharge of an obligation imposed by the public law, but was a matter of favor, and could carry with it no obligation on the part of the Government of the United States to extend like compensation to others not embraced within the class which it had selected.

In the case, however, of John Kater, No. 19, claimant was allowed for two horses taken by Sheridan's army on its raid through the valley of Virginia in August, 1864, all the commissioners oining in this award, General Sheridan's order of August 16, 1864, directing the seizure of mules, horses, and cattle for the use of the Army, having in effect promised compensation for such property to loyal citizens.

In the case of Henry Henderson, No. 41, the claim was for 112 bales of cotton seized by the United States military forces under orders of General Banks, on plantations in the State of Louisiana, outside of the Federal lines, carried to Port Hudson, and there used in the breast works of the besieging army of General Banks for the reduction of that post. On the part of the United States it was claimed that this was a tak ing of enemy's property within the enemy's country for strictly military use, justified by the laws of war, and for which the United States were not liable to make compensation, the claimant being permanently domiciled in the enemy's country, and subject to the same treatment as other enemies. The claim was allowed by the majority of the commission, Mr. Commissioner Frazer dissenting and placing on the records of the commission a dissenting opinion, a copy of which will be found in the appendix, F.

c. 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.