ward for the purpose of trading with the enemy, and he continued all along in possession of his goods. 2. The property of Messrs. Kerford was safely conducted to Chihuahua, and realized a very large sum, $260,000 by claimant's statement. 3. The complaint of Messrs. Kerford 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's caravan was bound: the arrival of the caravan would certainly have put the inhabitants of Chihuahua in a more favourable position for frustrating the expedition; indeed, it is admitted in the plea put in on behalf of Messrs. Kerford, 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 obtaining 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 Calonel 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's 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. was not an open road on which a friendly power had a right to travel freely and without question. The case of Harmony has been relied on as a pecedent, but the following passage It from the "opinion of the Court," delivered by Mr. Chief Justice Taney, is conclusive in favour 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 of February, 1847, at which time Harmony's property must have been detained for a longer period than that of Messrs. Kerford. 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 licence 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. JOSHUA BATES, Umpire. THE "CONFIDENCE." London, 13th January, 1855. THE umpire reports that this claim arises from the running down by the "Constitution," American frigate, on the 1st December, 1851, in the Straits of Gibraltar, off Cape Spartel, of the brig "Confidence," coal laden, and having consulted with several experienced navigators, to whom the evidence in the case was exhibited, they all agree with me, that while all praise is due to the officers of the "Constitution" for their exertions in saving the lives of the crew and their kindness to them afterwards, that the "Constitution 99 fault. I therefore award to the owners of the "Confidence," or their legal representatives, the sum of two thousand and fiftyfive pounds, or at 484, nine thousand nine hundred and forty-six dollars twenty cents, on the 15th January, 1855. JOSHUA BATES, Umpire. THE DIRECTOR." London, 13th January, 1855. THE umpire reports that the "Director" according to the testimony of several witnesses appears to have been captured near Chattican, on the Northern shore of the Island of Cape Breton: no cause for the seizure is assigned by the witnesses on behalf of the Claimants, who testify that the "Director" was farther from the shore than the rest of the fleet, but the masters of the other vessels state that their attention was particularly called to the "Director" without giving any reason why their attention was so directed. One of the witnesses states that Captain Stevens who captured the vessel said, he seized her as a smuggler. It appears by the deposition of the cook who with the captain remained on board the schooner, that she was taken to Arichat, where, after three days he and the captain were ordered on shore, and here the evidence ends. There is no account of the fate of the schooner, whether she was condemned or cleared; or if condemned, for what reason. It would appear improbable that she was condemned for being too near the shore, as the rest of the fleet were nearer and were not molested. I consider the evidence in this case insufficient to establish a claim before this Commission. JOSHUA BATES, Umpire. MR. ALEXANDER MCLEOD. MR. HORNBY, British Commissioner: In the course of the Canadian insurrection, in the year 1837, it was deemed advisable by the military officer in command of Her Majesty's forces on the Niagara frontier, to capture a vessel called the "Caroline," which was being used by the rebels for the conveyance of munitions of war from the American shore to Navy Island, from which an invasion of the British territory was in preparation. On the night of the 29th September, Commander Drew proceeded, with an armed force, from the Canadian shore to Schlosser, in The United States, where the "Caroline" was lying, and, having overcome the crew of that vessel, one of whom was killed in the encounter, seized her, set her on fire, and allowed her to drift over the Falls of Niagara. The circumstances of this capture having been reported to the Lieutenant-Governor, his Excellency expressed his unqualified approbation of the proceeding, and desired the Commander-in-chief to convey to Captain Drew, and those under his command, his thanks for the important* service they had rendered the province. The destruction of the "Caroline" was complained of by The United States' Government, as an unjustifiable violation of its territory, and was defended by Her Majesty's Government, as a necessary act of self-defence. In the course of the correspondence which passed between the two Governments on this subject, Her Majesty's Minister at Washington, in an official note of the 6th February, 1838, communicated to The United States' Government the formal avowal and approval of the proceeding by Sir Francis Head *Mr. Strachan to Colonel M'Nab, 1st January, 1838. |