fited to the extent of £6,000, was not one which His Majesty's Government were obliged to take by the rules of international law, but was adopted entirely ex gratia.

It appears to His Majesty's Government that these claims of British subjects in Cuba and the Philippines belong to the class described above, in view of the grave and peculiar hardship suffered by the claimants, and they have instructed me once more to approach you unofficially with regard to them, and to express the earnest hope that Congress may be disposed to consider the subject and grant a reasonable sum by way of indemnity as a matter of grace and favor.

The details of all but one of these claims are already familiar to the United States Government, and I will not trouble you with a recapitulation of them, but I venture to transmit a memorandum setting forth the special circumstances in each case which would appear to entitle the claimant to favorable consideration.

The remaining claim, that of Mr. J. Walter Higgin, is now presented for the first time, and I have accordingly added a note giving details regarding it at the end of the inclosed memorandum.

I am, etc.,

[Inclosure.]

MICHAEL H. HERBERT.

Memorandum on claims of certain British subjects against the United States Government on account of losses incurred through the action of United States troops in Cuba and the Philippines.

1. Claim of Mr. William Hardman (£93).

This claim is for property destroyed through the action of United States troops at Siboney, Cuba, on July 28, 1898.

It was recommended to the favorable consideration of Congress in a special message of the President on December 13, 1901, but was adversely reported by the Senate Committee on Foreign Relations on January 23, 1902.

The rejection of the claim by the committee is based solely on the absence of legal liability on strict principles of law, but it would seem that the case is one in which compensation might very well be granted as a matter of grace and favor, especially in view of the fact that it was recommended to the favorable consideration of Congress, without qualification, in a special message from the President.

2. Claim of the Philippines Mineral Syndicate ($113,776.72 Mexican). This claim is for losses incurred owing to damage inflicted on the property of the syndicate in the neighborhood of Mambulao, province of Camarines del Norte, Luzon, through the policy pursued by the United States military authorities.

There are certain special circumstances in connection with this case which, while they do not perhaps afford legal ground for demanding compensation, are yet of such a nature as to entitle it to the consideration of Congress as a matter of grace and favor. Although these facts are already in the possession of the United States Government, they may be briefly recapitulated.

In March, 1899, the United States authorities were warned that the nature of the syndicate's property was such as to invite attack and that some of the mineral deposits were of such a kind as to afford an easy revenue for the benefit of the insurgents. In thus advising the authorities and so rendering, as it would appear, a signal service to the United States Government, the syndicate urged that steps should be taken to protect their property and to prevent the insurgents from deriving advantage from it in the prosecution of hostilities, and they thus acted not only in accordance with their own interest, but likewise with that of the United States.

Although thus apprised that there was a valuable property belonging to the citizens of a friendly foreign power, the owners of which were prepared to aid the United States forces in protecting it, and incidentally in preventing the insurgents from obtaining an advantage in conducting their hostile operations, no effort was

made by the United States military authorities to communicate with the agents of the syndicate.

On July 8, 1899, two United States gunboats entered the Bay of Mambulao, and the chief engineer of the syndicate went out in a boat to meet them. The vessels immediately opened fire, without giving him an opportunity to disclose his identity, character, or purpose, so that he was obliged to retire in peril of his life.

There were at that time no insurgents or other hostile forces at Mambulao, and the peaceful inhabitants of the village instantly fled. After doing a little damage to the village and without effecting or attempting to effect a landing or making any inquiries or inviting any communication with the syndicate's agents after the repulse given to the chief engineer, the gunboats steamed out of the bay.

This demonstration of military force, followed by immediate abandonment, had the consequence of attracting to the scene the hostile Tagalos, who, seeing the place abandoned alike by the peaceful inhabitants and by the military authorities, entered the district, plundered and destroyed the property of the syndicate, and robbed the European employees even of their personal effects. Repeated requests made by the syndicate for military protection or for the privilege of arming the employees, so as to enable them to protect themselves and their employers' property having been alike refused by the United States military authorities previous to this time, no effectual resistance could be offered to the insurgents; and the servants of the syndicate remained at the mercy of the latter, who prevented their egress, while the United States military authorities maintained a blockade and prevented them from securing assistance or from communication of any sort with the outside world.

It further appears that the known friendly attitude of the syndicate and its agents to the United States was the cause of the needless and malicious destruction by the insurgents of such of the syndicate's property as was not stolen.

3. Claim of Messrs. Hoskyn & Co. ($207,416.30 Mexican).

4. Claim of Messrs. W. F. Stevenson & Co. ($122,876.77 Mexican).

5. Claim of Mr. J. Walter Higgin ($385 Mexican).

This claim, the details of which have only reached His Majesty's embassy since the presentation and rejection of the two preceding ones, has never hitherto been presented to the United States Government. It is for compensation for the loss of 35 cases of whisky stored in the warehouse of Messrs. Hoskyn & Co. at Iloilo, which were destroyed by fire during the bombardment of that town by United States forces on February 11, 1899. Details respecting it will be found at the end of this memorandum.

These three claims are all founded on the same circumstances, and grow out of the destruction of the property of the claimants at the time of the bombardment of Iloilo. The United States Government are already in possession of full particulars regarding the first two, and it is not therefore necessary to recapitulate the circumstances in detail; but the events which gave rise to all three claims would appear to be such as would entitle the claimants to compensation ex gratia.

On February 10, 1899, the officer commanding the United States forces before Iloilo issued a notice to the foreign consuls in that town in the following form:

"In view of anticipated hostility, notice is hereby given you to cause all persons who are under your protection to seek a place of safety before 5 a. m. Sunday, the 12th instant.

"Hostilities may commence at any time after that hour and date."

He also sent an ultimatum to the Filipinos to the effect that, should they attempt to strengthen their defenses or throw up intrenchments, they would be attacked at once, but he failed to inform the consuls that this ultimatum had been sent.

As a matter of fact the Filipinos did make this attempt, with the result that the United States forces began the bombardment nearly twenty-four hours before the time mentioned in the notice to the consuls.

It is plain from the wording of the above notice that the United States forces were the attacking party, and that in the absence of the attack made by them no hostilities would have ensued.

The effect of the notice and ultimatum on the insurgents appears to have been to cause them to use the time at their disposal to collect materials for the destruction by fire of the town, which they felt themselves unable effectually to defend; for, when the United States forces attacked, they encountered no resistance from the insurgents, who at once occupied themselves with the retaliatory measure of setting fire to the town and the property it contained.

It is clear, therefore, that had the United States forces attempted to take possession of the town on the 10th instant they could have done so without effective opposition, and that the destruction of the claimants' property would thus have been prevented,

FR 1903-31

that by postponing the attack in the first instance they gave the insurgents the chance of preparing for the destruction of the claimants' property, and that by subsequently attacking before the time mentioned in the notice they deprived the claimants of the opportunity of protecting that property.

The terms of the notice led the claimants to believe that they would not be subject to any of the effects of a bombardment until 5 a. m. on February 12, 1899; and by the precipitation of the attack by nearly twenty-four hours their property, not yet having been placed in safety, was left at the mercy of the insurgents, who, of course, carried out their prearranged plan of firing the town by just so long in advance of the time when it would otherwise have occurred.

While the right of military authorities thus to proceed in advance of their notice, with or without warning, can not be disputed, the issue of the notice and its subsequent violation undoubtedly placed the claimants in a worse position than if no notice had been given; and the further notice or ultimatum issued to the Filipino leaders, and not communicated to the foreign consuls, had the effect of placing the neutral aliens at a greater disadvantage in the attack by the United States forces than the hostile insurgents.

NOTE ON THE CLAIM OF MR. J. WALTER HIGGIN.

This claim is for the loss of a consignment of whisky stored in Messrs. Hoskyn's warehouse at Iloilo, and destroyed by fire at the time of the bombardment of that town by the United States forces. The arguments advanced above in favor of the assignment of compensation ex gratia to Messrs. Hoskyn and Stevenson apply equally to this case.

Mr. Higgin himself addressed the United States Government on March 21, 1900, submitting his claim, and explained that his delay in doing so had been caused by the fact that he had expected his claim to be included in that of Messrs. Hoskyn, and had only just been informed that no claims on consignments would be admitted by the United States Government. He inclosed certain documents bearing on the case. On September 21, 1900, Mr. Higgin received a letter from the United States Government forwarding reports from United States officers in the Philippines respecting his case, and also a copy of a circular letter from General Otis, when military governor, on the subject of the claims arising out of the bombardment of Iloilo, in which it is stated that the.claims of foreign subjects must be presented through the diplomatic channel.

BRITISH EMBASSY,

Washington, December 31, 1902.

Mr. Hay to Sir Michael Herbert.

[Personal.]

DEPARTMENT OF STATE, Washington, January 27, 1903.

MY DEAR MR. AMBASSADOR: I have received your personal note of the 31st ultimo, with inclosure, relating to certain claims of British subjects which have been brought to this Government's attention from time to time and which arose out of the operations during the recent war with Spain.

The Department concurs in the expression contained in your note that "not the least of the calamities resulting from a state of war is the loss caused thereby to the subjects or citizens of neutral powers possessing property or engaged in business in the affected area." The losses sustained by His Majesty's subjects mentioned in the memorandum accompanying your note come within the category of cases above described, in which, as you say, "It often happens that the destruction of that property or damage to that business is a matter of military necessity to one of the belligerents." And such destruction may sometimes be wantonly inflicted by insurgents, which, though equally

deplorable, does not create liability on the part of the titular government in the cricumstances existing in connection with said claims.

These claims appear to the Department to be quite different in legal character from those which arose in behalf of American citizens expelled by the British authorities from South Africa and for which His Majesty's Government graciously made compensation. However much I might be personally disposed to recommend a compensation in these cases as a matter of grace and favor, as is suggested in your note, I am persuaded that such recommendation to Congress would be fruitless, in view of the adverse report" of the Senate Committee on Foreign Relations in the mentioned claim of William Hardman, and in Iview of the further fact that the Government of the United States would probably be reluctant to set a precedent for the making of compensation for the losses of property caused by the action of insurgents beyond the control of the military authorities of the United States and for whose action the latter was not morally culpable. Such a precedent, if set, would doubtless be followed by the presentation of numerous and other large claims for compensation for property destroyed by acts of insurgents.

The claim of Mr. J. Walter Higgin, now presented for the first time, is of the same essential legal character as those which have already been rejected by the Department.

I am, etc.,

JOHN HAY.

RIGHT OF UNITED STATES CONSULS TO RECEIVE EFFECTS OF UNITED STATES CITIZENS, DECEASED ON BRITISH TERRITORY OR VESSELS.

Mr. White to Mr. Hay.

No. 1016.]

AMERICAN EMBASSY, London, December 31, 1902. SIR: I have the honor to inclose herewith copies of a letter addressed to the ambassador on the 15th November last by the consul-general, relative to the refusal of the British India Steamship Company to hand over to him the effects of Capt. Charles E. Schonberg, a first-class passenger from Calcutta to London, who died on board that vessel on the 18th September last, and to inform you that on the 24th ultimo I called at the foreign office and requested that inquiry be made in the

matter.

I now have the honor to transmit herewith, for your information, the copy of a note which I have received from the foreign office, from which you will see that the laws of Great Britain do not recognize the right of a foreign consul to the custody of the personal effects of a subject or citizen of his country who dies in the United Kingdom or on board a British ship, and that if the agents of the British India Steamship Company had handed over to our consul-general Captain Schonberg's effects without having previously satisfied themselves of their value they would have exposed themselves to the infliction of a heavy penalty.

I have, etc.,

HENRY WHITE.

a See Senate Report No. 224, Fifty-seventh Congress, first session, January 23, 1902.

[Inclosure 1.]

Mr. Evans to Mr. Choate.

CONSULATE-General of tHE UNITED STATES,

London, November 15, 1902.

SIR: I have the honor to submit the following facts for your consideration, viz: Under date of October 13, Messrs. Gray, Dawes & Co. reported to this consulategeneral the death of Capt. C. E. Schonberg, an American citizen, on board the steamship Manora, en route from Calcutta to London. (Copy of such notice herewith.) I immediately requested that the personal effects of Captain Schonberg be turned over to this consulate. (Copy herewith.)

Some two weeks thereafter a gentleman called giving his name, and said that he represented Messrs. Gray, Dawes & Co., and after explanation he agreed to turn over the effects of Captain Schonberg, provided I would give a receipt for same, and said he would submit a form. This form was sent in, but it being so general, I said that he must state of what the effects consisted; if a trunk, locked, say so; if a box, fastened, say so, etc.; that the form of the receipt was all right, but I wanted to know the packages I was getting.

On November 7 I received a letter from the solicitors. (Copy herewith.)

I immediately made reply addressed Messrs. Gray, Dawes & Co. (Copy herewith.) Soon thereafter another solicitor called, claiming to represent Messrs. Gray, Dawes & Co, and wanting me to agree to indemnify Messrs. Gray, Dawes & Co. against any damages or suit at law of any kind from the representatives of Captain Schonberg. This I declined to do; and after pointing out to the solicitor the law and consular regulations, informing him that I was appointed by my Government, and had given bond to my Government; that my duties were clearly defined in such cases by international laws; that His Majesty had duly accepted me as the representative of my Government to look after such interests as were now involved; that I must protest against them or their clients opening the trunks or baggage of whatsoever nature belonging to this American citizen, who happened to be a passenger on their ship and died upon the journey and was buried at sea; and that these personal effects must be turned over to me as the representative of the United States. On November 12 a messenger came with the word that the trunks and baggage of Captain Schonberg, at the East India Docks, had been examined, but nothing of value was found; that they only contained wearing apparel, and that there was a tin box that they would open at the office of the solicitors, and inviting me to call and see the contents. I paid no attention to this. About 5 p. m. one of the solicitors (as he represented himself) called at the consulate, wanting to turn over the box and contents, and had prepared a receipt for me to sign. After adding a memorandum I signed the receipt. (Copy herewith attached.)

I call your attention to the list of items submitted as personal effects under date of October 13, and again to the list of November 7, and my declining to receipt in general terms, but asking for a list of the packages.

At the time of each call of the solicitors I brought to their respective attention section 1709 of the Revised Statutes of 1878-duties of consuls as to the personal effects of deceased American citizens.

I submit these facts for your consideration. I have used my best efforts to protect the interests of the widow in this case and prevent the representatives of this steamship company from breaking open and inspecting the personal effects and private papers of this deceased American citizen, who was traveling upon their line from Calcutta to this port. I would thank you to advise me in the premises. Has this steamship company, or any other steamship company, or any transportation company, acting simply in the capacity of common carriers, the legal right under international laws and commercial regulations between friendly nations to open, examine, inspect, or otherwise pry into the personal effects or affairs of an American citizen, who is so unfortunate as to die while a passenger en route?

Very respectfully,

H. CLAY EVANS, Consul-General.

[Subinclosure 1]

Messrs. Gray Dawes & Co., to Mr. Evans.

23 GT. WINCHESTER STREET, London, E. C., October 13, 1902.

DEAR SIR: As representing the British India Company we have to advise you of