I transmit to you, enclosed, a copy of the reply of the Attorney General
containing his opinion in the premises, which you will consider as the
decision of the department and act upon accordingly.
Judson Kilpatrick, Esq., &c., &c., &c.
Mr. Stanbery to Mr. Seward
Attorney General’s Office,
August 31, 1866.
Sir: It appears from your letter of the
29th instant that the American commercial houses of Wheelright &
Co. and Lorring & Co., domiciled for commercial purposes at
Valparaiso, sustained losses of their merchandise in the
conflagration caused by the bombardment of that city by the Spanish
fleet on the 31st of March last.
The question presented for my opinion is whether a case is made for
the intervention of the United States on behalf of these citizens
for indemnity against Spain or Chili.
I do not see any ground upon which such intervention is allowable in
respect to either of those governments.
The bombardment was in the prosecution of an existing war between
Spain and Chili. Although under the circumstances it was a measure
of extreme severity, yet it cannot be said to have been contrary to
the laws of war, nor was it unattended with the preliminary warning
to non-combatants usual in such cases.
It does not appear that in carrying on the bombardment any
discrimination was made against resident foreigners or their
property; on the contrary, there was at least an attempt to confine
the damage to public property.
Then, as to the Chilian authorities, it does not appear that they did
or omitted any act for which our citizens there domiciled have a
right to complain; or that the measure of protection they were bound
by public law to extend to those citizens and their property was
withheld. No defence was made against the bombardment, for that
would have been fruitless, and would have aggravated the damage, as
Valparaiso was not then fortified; and no discrimination was made by
those authorities between their own citizens and foreigners there
domiciled; all shared alike in the common disaster.
The rule of international law is well established that a foreigner
who resides in the country of a belligerent can claim no indemnity
for losses of property occasioned by acts of war like the one in
question.
The bombardment of Copenhagen by the British in 1807 is a notable
illustration of this rule. Immense losses were sustained by
foreigners domiciled in that city. There was no previous declaration
of war against Denmark, and no reasonable ground upon which the
bombardment could be justified, and yet no reclamation upon the
footing of these losses was ever admitted by Great Britain.
[Page 261]
The bombardment of Greytown, in May, 1854, by the United States
sloop-of-war Cyane, is another instance of this rule. Losses were
sustained by French citizens there domiciled, from the fire of the
Cyane.
A petition to the United States from those parties for indemnity was
presented through the French minister then resident at Washington,
but without the express sanction of his government. Upon full
consideration this petition was refused. Mr. Marcy, then Secretary
of State, in answer to the claim, holds the following language:
“The undersigned is not aware that the principle that foreigners
domiciled in a belligerent country must share with the citizens of
that country in the fortunes of the war has ever been seriously
controverted or departed from in practice.”
I have, therefore, to repeat that I am of opinion no ground is laid
for the intervention of the United States in favor of these
parties.
I have the honor to be, very respectfully,
HENRY STANBERY, Attorney
General.
Hon. William H. Seward, Secretary of State.
