From Perrin’s History of Kentucky, 1882
Kirby Smith Recruiting Handbill
Cynthiana’s War Experience.–Since the early years of the present century, war had been known to our citizens only by hearsay and history. It is true large contingents had been furnished by the town and vicinity for the Indian wars in the Northwest, and in the war of 1812, as also for the Mexican war of 1846-47. Many a citizen-soldier had returned alive and well from these military expeditions, and had always had willing audiences to the story of the battle of the Thames, of Buena Vista, of Cerro Gordo, or of Molino del Rey, till, as matters of history, all were familiar with them. But the scenes of all these were far off, and, therefore, though recent, they shared almost the dimness of the antique. The very monuments, raised in our midst to the memory of the lost, partook rather of the ideal and historic than of the real and present.
But in the late conflict between the States, the realities of war were brought before our people with terrible clearness. Battle and fire raged in the streets. Men, women and children had to take care of themselves as they could, without regard to property, for life was at stake. The loss of life, however, was not great in either of the two battles of Cynthiana, though nearly half the property of the town was destroyed in the second engagement, that of June 11, 1864. The burnt districts have been well rebuilt, even better than before; but some of the losers have never recovered from the destruction of that July, 1864, and seemingly never can, if we may judge from the attitude of Government toward war claims, as indicated by the last report of the Congressional Committee on such matters.
Eye-witnesses of both the battles of Cynthiana say the account of them is so accurate, though not quite complete, in Collins’ History of Kentucky, that we copy the entire description from that valuable work. One important correction is made by T.A. Frazer, who remembers that the Confederate Col. Martin, then suffering from a previous wound, accepted the hospitality of his house the night before the action of the 12th of June, 1864. The Colonel stated, on retiring to rest, that battle was impending, and that he should probably be called up before morning. He actually was sent for by his command about 3 o’clock in the following morning, and at once proceeding to his position, the battle began. This proves that the Confederate command was not surprised. No doubt they were “at breakfast,” but this does not necessarily imply that they were surprised, for old soldiers will eat in the midst of a fight if they have a chance.
Presentation of a flag to Kentucky volunteers at Camp Bruce, near Cynthiana, Ky.
First Battle of Cynthiana. Says Collins: “On July 17 [Page 254], 1862, the Confederate general, John H. Morgan, with a force 816 strong when he started, nine days before, upon this first Kentucky raid, attacked the Federal forces at Cynthiana, nearly 500 strong (mainly home guards), under Col. John J. Landramówho after a brave resistance were overpowered and defeated and the town captured. The Federal pickets were surprised, and captured or driven in; and before the commander had time to dispose his force, the Confederates commenced shelling the town, producing a wild consternation among the inhabitants. Capt. William H. Glass, of the Federal artillery, occupied the public square, from which point he could command most of the roads. Another force took position on the Magee Hill road, south of the town, along which the Confederates were approaching. A third detachment was instructed to hold the bridge on the west side of the town, towards which Morganís main force was pouring. Capt. Glass opened on Morganís battery, which was planted on an eminence a quarter of a mile distant, between the Leesburg and Fair Ground turnpikes. The Confederates were now approaching by every road and street, and deployed as skirmishers through every field, completely encircling the Federals. Their battery on the hill having ceased its fire, Capt. Glass with grape and canister swept Pike street from one end to the other. By this time the contestants were engaged at every point. The fighting was terrific. The Federals commenced giving way. The force at the bridge, after a sharp fight, was driven back, and a Confederate cavalry charge made through the streets. A portion of the Federals made a stand at the railroad depot. A charge upon the Confederate battery at the Licking bridge, was repulsed, and the Confederates, in turn, charged upon the force at the depot, while another detachment was pouring deadly fire from the rear, about one hundred and twenty-five yards distant. It was here that Col. Landram was wounded, and Thomas are, one of the oldest citizens, Jesse Currant, Thos. Rankin, Capt. Lafe Wilson, and others were killed, besides a number wounded. Unable to stand the concentrated fire, the handful of Federals that were left commenced a precipitate retreat. The 7th Ky. cavalry, posted north of town to hold the Oddville road, were soon overpowered, and compelled to surrender. Three-fourths of the Federal force had now been killed, wounded, or captured, and the Confederates held undisputed possession. The prisoners were marched into town, and lodged in the upper room of the courthouse, and their paroles made out and signed that night.”
Second Battle of Cynthiana.ó”On Saturday, June 11, 1864, Gen. Morgan marched a second time upon Cynthiana, defeated and captured the forces under the command of Gen. E.H. Hobson. The first of this series of engagements took place early in the morning, between the 168th Ohio infantry and Morganís whole command, about 1,2000 strong. The Federals were soon overpowered, and fell back to the depot buildings, (where Col. Berry fell, mortally wounded,) and thence to Rankinís unfinished hotel; others retreated to the court house. The Confederates, following closely, charged into these several places, causing the utmost consternation among the inhabitants. While the battle was raging, a stable opposite the Rankin hotel caught or was set on fire, and the terror of the flames added greatly to the alarm. Across the river, west of the town, another battle began between Gen. Hobson, commanding the 171st Ohio, and a detachment of Confederates. This is known as the battle at ìKellerís Bridge,î one mile west of Cynthiana, which had been destroyed by the Confederates on the Thursday previous, to prevent the sending of troops along the railroad. The trains which had conveyed the 171st Ohio to this point were backed down the road two miles for safety, but were there thrown from the track by the Confederates and burned. Upon being disembarked, the men were supplied with ammunition, and proceeded to eat their breakfast. Suddenly their quiet was disturbed by the rattle of musketry at Cynthiana, telling that hot work was going on there between the 168th Ohio and the Confederates. A volley of musketry was poured in upon them, by a squad of Confederates massed behind the fence of a clover-field. Gen. Hobson was now completely surrounded. The Confederates displayed great activity in firing, and considerable skill in keeping under cover from the fire of the Federal troops. The fight continued about five hours, the loss on both sides unusually heavy. Gen. Morgan, who was in Cynthiana when the fight at the Bridge commenced, arrived on the field at 9 A.M. with reinforcements, and with these the line was drawn still closer; and Gen. Hobson was finally compelled to accept the flag of truce and Morganís conditions of surrenderóthat the private property of the troops should be respected, and the officers retain their side-arms. The Federal forces were drawn up along the pike, their arms stacked and burned, and they were marched through Cynthiana, a mile east, to a groveówhere they found the other Federal forces who had been in the fight at Cynthiana, prisoners like themselves. After resting an hour, the prisoners were marched 3 miles north, on the Oddville pike, where they passed Saturday night. Early on Sunday morning, with the first announcement of the approach of [Page 257] Burbridge, came an order from Morgan to the guard over the Federal prisoners to start them north; which was done, and that, too, on the double quickóMorganís main force, pursued by Burbridge, following at a distance of a few miles. This forced march brought them to Claysville, 12 miles N.E. of Cynthiana, where they were halted, drawn up in line, paroled, and allowed to depart. While the battles were in progress on Saturday, the fire continued to rage, notwithstanding vigorous efforts to stop it by the citizens. By twelve oíclock all the business portion of the town was consumed, with most of the contents. The fire, commencing at Rankinís stable, swept on to the West House, burning all the buildings; thence across to Broadwellís corner, and down to Isaac T. Martinís store; thence across to Dr. Broadwellís buildings, to the jail, including that and the adjoining buildingsó27 in all, the most valuable in the place. On Sunday morning, the 12th of June, the day after the two battles above described, Gen. Burbridge, with a strong force, fell upon Morganís men at Cynthiana, while they were at breakfast. Fatigued as they were by the previous dayís operationsówhich resulted in the defeat and capture of two distinct Federal forcesóthe Confederates were not in condition to withstand the shock of a fresh body of troops. Burbridge, with his cavalry, was enabled to flank them, and thus turn their lines; while his infantry, in the center, advanced steadily, forcing them back on the town. The fighting commenced on the Millersburg pike, about one mile east of Cynthiana. But the Confederatesóunable to hold out against the rapid and determined advance of superior numbers of fresh troops supported by artilleryósoon gave way, and, by the time they reached Cynthiana, were in full retreat, and the retreat a rout. One by one, they fell back through the town, crossed the river, and followed the Raven Creek pike. Thus ended the last battle that was fought at Cynthiana in the war for Southern independence.”
Lists of the losses of property in this action are subjoined; the arguments supporting the claims of citizens for just and legal compensation by Government, the adverse report of the Committee on War Claims, and finally, the resolution of the Kentucky General Assembly. This resolution is an implied remonstrance against the disregard by Government, of what is felt to be a just and legal claim.
Mr. Carlisle, on leave, introduced in the House of Representatives November 5, 1877, the following bill, which was read twice, referred to the Committee on War Claims, and ordered to be printed:
A Bill for the relief of certain citizens of Cynthiana, Ky., whose property was destroyed by fire on the 11th day of June, 1864.
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That out of any money in the treasury, not otherwise appropriated, there is hereby appropriated, and ordered to be paid to the following citizens of Cynthiana, in the State of Kentucky, the following sums for and on account of property destroyed by fire on the 11th day of June, 1864, to wit:
To James J. Parish, the sum of $1,600; Elizabeth Oxley, administratrix of Lawson Oxley (deceased), $16,555; Greenup Remington, $10,000; W.W. Trimble, $2,500; Henry Johnson (colored), $1,100; Charles A. Webster, $18,350; Francis M. Gray, $4,100; James S. Frizell, $12,680; Frank Box, $6,722; Ellen English, administratrix of Thomas English (deceased), $2,000; Thomas A. Frazer and Henry E. Shawhan, $7,000; Susan Tomlinson, $4,000; John L. Magee, $18,000; Greenup Remington, administrator of Eliza Bell (deceased), $3,000; Herman Rohs, $200; David A. Givens, $15,747; Isaac N. Webb, $1,000; James E. Dickey, $713.50; John Quinlan, $120; William L. Northcutt, $21,570.75; John Newton Smith, $5,113; John Newton Smith (guardian), $2,000; Heinrich C. Nebel, $653; John Bruce, $1,372; Mary A. Hall, $420; Eliza T. Rankin, administratrix of T.R. Rankin (deceased); $6,563; Joseph W. McIntosh, $31,730; Robert C. Wherritt, $32,000; F.X.C. Nott, administrator of Adeliza Murphy (deceased), $4,000.
The said payments to be in full satisfaction and discharge of all claims and demands by the said parties, or their heirs or representatives, for, or on account of the loss or destruction of their property, at the time of the attack made upon said city of Cynthiana by the Confederate forces, under the command of Gen. John H. Morgan, on the 11th day of June, 1864, during which the United States forces, under command of Col. Conrad Garis, of the One Hundred and Sixty-eighth Regiment Ohio Volunteer Infantry, took shelter in the houses of said citizens, thereby causing them and their contents to be set on fire and destroyed by the enemy.
The grounds upon which certain citizens of Cynthiana, Ky., whose property was destroyed by fire on the 11th day of June, 1864, claim relief, are as follows:
On said 11th day of June, 1864, Col. Conrad Garis, of the One Hundred and Sixty-eighth Regiment Ohio Infantry Volunteers, took shelter in said city by placing his command in houses to resist an attack of them approaching enemy, under command of Gen. John H. Morgan, and during the fight which ensued, the city was set on fire by the enemy to dislodge the Federal forces, resulting in the destruction of the houses and merchandise of said claimants, as set forth by the allegations of the petitioners, and clearly sustained by the evidence submitted, which is also corroborated by the affidavit of Col. Conrad Garis and others.
There is no doubt that said property was taken by the officer and absolutely used by him as a shelter or fortification to protect the lives of his men from the bullets of the enemy, and that said taking, use, and occupancy resulted in the destruction of the houses and merchandise.
Now, the question arises, is this a legitimate claim against the Government? I answer that it is. And to sustain my answer, I beg to refer to the judicial authorities, the text writers, the Constitution, and the legislative precedents bearing upon the subject.
In Grant vs. The United States, 1st N. & H. Reports, the court says:
[Page 258] “It may safely be assumed as the settled and fundamental law of Christian and civilized States that governments are bound to make just indemnity to the citizen or subject whenever private property is taken for the public good, convenience or safety.”
The Cynthiana property was taken for the public good, convenience and safety, and while thus occupied it was destroyed, and lost by said claimants.
In the case of Mitchell vs. Harmony, reported in 13 How., 115, Chief Justice Taney delivering the opinion of the court, says:
“Private property may be taken by a military commander to prevent it from falling into the hands of the enemy, or for the purpose of converting it to the use of the public; but the danger must be immediate and impending, or the necessity urgent for the public service, such as will not admit of delay, and where the action of the civil authority would be too late in providing the means which the occasion calls for.”
And again he says on page 134:
“There are, without doubt, occasions on which private property may lawfully be taken possession of or destroyed to prevent it from falling into the hands of the public enemy, and also where a military officer charged with a particular duty may impress private property into the public service or take it for public use. Unquestionably, in such cases, the Government is bound to make full compensation to the owner.”
Again he says, page 135:
“In deciding upon this necessity, however, the state of the facts as they appeared to the officer at the time he acted, must govern the decision; for he must necessarily act upon the information of others, as well as his own observation. And if, with such information as he had a right to rely upon, there is reasonable grounds for believing that the peril is immediate and menacing or the necessity urgent, he is justified in acting upon it; and the discovery afterward that it was false or erroneous will not make him a trespasser.”
All the evidence on file points directly to the fact that the city of Cynthiana was taken by Coll. Conrad Garis to prevent it from falling into the hands of the public enemy, and that the houses were converted to the use of the public and absolutely used to protect the lives of his men. The danger was immediate and impending, and the necessity was urgent for the public service, and was such as would not have admitted of delay.
This presents a case where private property was impressed into the public service and taken for public use, resulting in its destruction; and under the opinion of the court, as delivered by Chief Justice Taney, the Government is clearly bound to make full compensation to the owners.
The case of Mitchell vs. Harmony was brought up by a writ of error from the Circuit Court of the United States for the Southern District of New York. David D. Mitchell was an officer of the army, and was sued in an action for trespass by Manuel H. Harmony, and the jury found a verdict for plaintiff for $90,806.44, for which, with costs amounting to $5,048.94, the court gave judgment amounting to $95,855.38. The property of the plaintiff was taken by military authority. As a consequence of the taking, the goods fell into the hands of the enemy. The courts held that the taking was unnecessary, and, therefore, required the officer in command to make compensation for the loss of the goods. But Congress held that, inasmuch as the officer acted in good faith, and for what he believed to be the interest of the Government, the Government ought to protect him against the consequences of his misfortune. Congress, therefore, assumed the defense of the officer before the Supreme Court, and, when judgment was finally rendered against him, assumed the payment of said $95,855.38.
This is what I term a legislative precedent, and respectfully ask it to be compared with the Cynthiana claims.
Was the taking use, and occupancy authorized? The rule which will justify the taking of private property for defense or destruction is well settled, and rests upon the same principle which gives to the individual the right, in the case of aggression to life or limb, to take the life of the aggressor. In either case, it is the necessity, seeming or real, which gives the right and justifies the individual or officer. The engagement so swiftly followed the taking, makes complete the urgent and immediate necessity of the taking, use and occupation of said houses.
Mr. William Whiting, in discussing the subject of war claims with direct reference to the liability of the United States, growing out of the late war, writes with extreme caution, but even he asserts that–
“If the private property of loyal citizens, inhabitants of loyal States, is appropriated by our military forces for the purpose of supplying our armies and to aid in prosecuting hostilities against a public enemy, the Government is bound to give a reasonable compensation therefor to the owner.”
Again he says:
“When individuals are called upon to give what is their own for the advantage of the community, justice requires that they shall be fairly compensated for it; otherwise public burdens would be shared unequally.”
The Cynthiana property was taken to aid in prosecuting hostilities against a public enemy. Said claimants were called upon to give up what was their own for the advantage of the community. Their property was actually taken for the use of the army, and used as a shelter to protect the lives of our men, and while occupied by the army it was destroyed. This being the case, the fifth Article of Amendment to the Constitution imperatively requires that the public shall make compensation for it.
On June 1, 1870, Congress passed an act to pay Otis N. Cutler, of Missouri, the sum of $50,000 for 268 bales of cotton, seized by order of Gen. Grant at Lake Providence, Louisiana. The property of said Cutler was used for military purposes in equipping the steamer Tigress for running the blockade of the Mississippi River at Vicksburg on the night of April 22, 1863. This cotton was destroyed by the rebels on the night of April 22, 1863. The boat and cotton were sunk on the trip. If the Government must pay for property taken by its army and then destroyed by the enemy, it seems to me it ought to pay for the property destroyed at Cynthiana, Ky., June 11, 1864, giving proper consideration to the sworn statements of officers on both sides, and especially to the affidavit of Col. Conrad Garis, who took and used it as a shelter to protect the lives of his men while resisting the attack of the enemy; and more especially because these statements are sustained by the corroborative sworn statements of fifty-eight citizens whose characters for truth and veracity are duly certified by the highest authority known to the law, and further sustained by the statements of thirty claimants. The act of taking the cotton above referred to was approved by Gen. Grant, and the papers in the case show that he examined its merits [Page 259] while acting as Secretary of War, and that although he refused to pay the claim, for want of authority, he pronounced it “meritorious,” and recommended the claim to Congress.
On January 17, 1871, Congress passed an act making compensation to the Kentucky University for buildings destroyed. The buildings were taken by military authority; they were destroyed by accident; the Government not only paid for the damage and injury to said buildings, but for the damages to the grounds adjacent, and the museum and personal property of said university, and approved by President Grant.
On June 22, 1874, Congress passed an act making compensation to the Kentucky Agricultural and Mechanical Association for damages to their fair grounds, resulting from their occupancy by United States troops during the late war of the rebellion, which payment was recommended by the commission and by the Secretary of War, and approved by President Grant.
On June 22, 1874, Congress passed an act to pay John L.T. Jones, of Montgomery County, Md., for rent of building, and destruction of same by accidental fire while being occupied as quarters by the United States troops under command of Gen. Hubert Ward, in November, 1862.
On April 6, 1876, Senate Bill No. 628 passed the Senate, and afterward the House of Representatives, making compensation to John A. Anderson, surviving co-partner of the firm of Anderson & White, for cotton taken by military authority September 5 and 24, 1862, to make temporary breastworks at Nashville, Tenn., resulting in the cotton being lost and destroyed while thus used for the protection of the army.
One other legislative precedent I deem worth of notice. It is the message of President Grant of June 1, 1872, returning to the Senate, without his approval, “An act for the relief of J. Milton Best, of Paducah, Ky.” It passed the Senate January 5, 1871, by a vote of 28 to 15. It failed to pass the House of Representatives during that Congress. It was again reported to the Senate during the Forty-second Congress (second session), and on the 8th of April, 1872, and passed by a vote of 27 to 12. It was considered i the House of Representatives on the 8th of May, 1872, and passed without division. The veto message asserts, as a general principle of both international and municipal law, that all property is held subject not only to be taken by the Government for public use (in which case, under the Constitution of the United States, the owner is entitled to just compensation), but also subject to be temporarily occupied, or even actually destroyed in times of great public danger, and when the public safety demands it; and, in this latter case, governments do not admit a legal obligation on their part to compensate the owner. Mr. Howe, from the Committee on Claims, to whom was referred said message, says the committee has not found any such general principle affirmed either in international or municipal law, but has found the very reverse of that to be affirmed by all law, international and municipal.
Among the text writers, Vattel discusses the very question, “Is the State bound to indemnify individuals for the damage they have sustained in war?” “Such damage,” he says, “are of two kinds; those done by the State itself, or the sovereign, and those done by the enemy. Of the first kind, some are done deliberately and by way of precaution, as when a field, a house, a garden, belonging to a private person is taken for the purpose of erecting on the spot a town rampart, or any other piece of fortification, or when his standing corn or his storehouses are destroyed to prevent their being of use to the enemy. Such damages are to be made good to the individual, who should bear only his quota of the loss.” The same author speaks of damage caused by inevitable necessity, and he instances “the destruction caused by the artillery in re-taking a town from the enemy. These are merely accidents. They are misfortunes which chance deals to the proprietors on whom they happen to fall.”
The distinction between the two kinds of damages is clear. One is the result of accident; the other is the result of design.
The sovereign, clothed with the right to make war, has the right to march troops and fire guns. Damages, which are the accidental result of such lawful acts, do not constitute a ground of claim. But whatever property the Government takes from its own obedient subjects, for the more efficient prosecution of the war, should be compensated for, no matter whether it be forage fed to the cavalry horses, powder burned, timber used on fortifications, houses removed to make way for such fortifications or houses destroyed to make them more secure.
Hugh Grotius asserts the same doctrine. He says:
“The king may, in two ways, deprive his subjects of their rights, either by way of punishment, or by virtue of his eminent power. But if he does so in this last way, it must be for some public advantage, and then the subject ought to receive, if possible, a just satisfaction for the loss he suffers out of the common stock.”
Again, he says:
“The State has an eminent right of property over the goods of the subject, so that the State, or those that represent it, may make use of them, and even destroy and alienate them, not only in extreme necessity, but for the public benefit; to which we must add that the State is obliged to repair the damages suffered by any subject on that account out of the public stock.”
Justice Randolph, in the case of the American Print Works vs. Lawrence, 1 Zabriskie, 248, says:
“In cases where the State, by virtue of its right of eminent domain, reserves the property of a citizen, and appropriates it to the use of the public; or, in prosecuting some great work, such as a canal or railroad, even in its sovereign capacity, or through the power delegated to an incorporated company, finds it necessary, not merely to take the soil and property of the citizen, but to destroy the mill-seat, divert its water-course, or commit other irreparable damage to private rights, in order to effect the great object in view; in such cases, not only must private rights yield to the interest and wishes of the State, but it is a positive evil suffered by an individual for the supposed gain of the whole community, at the will of that community; and, upon every principle of justice, the public should make compensation.”
The uniform action of Congress has been in strict accord with the principles adjudicated by the courts, and declared by the commentators. Congress has recognized the principle in a great variety of cases, and, so far as can be discovered, has never denied it.
I deem it proper to refer, just here, to President Grant’s message of February 11, 1873, vetoing Senate Bill No. 161, for the relief of those suffering from the destruction of the salt works near Manchester, Ky. In this message, he says:
“This bill does not present a case where private property is taken for public use, in the sense of the Constitution. It was not taken from the owners, but from the enemy; and, it was not then used by the Government, but destroyed.”
I call attention to this case to show that President Grant [Page 260] (assisted by his Cabinet and Constitutional advisers), seemed to base his objection to the passage of said bill upon constitutional grounds; and this is one among the many grounds I take to sustain the Cynthiana claims, as the evidence on file shows, beyond question, that the taking, use and occupancy were precisely as contemplated by the Constitution, where it says:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; not shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; or shall private property be taken for public use, without just compensation.”
To the foregoing precedents a great many might be added. Not a single case ahs been found in which Congress has denied the liability assumed in the precedents cited. Not a single authority has been found controverting the principles asserted by Grotius, by Vattel, by Whiting, by the Court of Claims, and by the Supreme Court of the United States.
During the war of the Revolution, a number of the colonists who adhered to the Crown, and were known as loyalists, were made to suffer heavily because of their loyalty. The insurgent authorities drove them from their homes, and confiscated their estates. The war terminated in the triumph of the insurgents. The despoiled loyalists at once appealed to Parliament for indemnification of their losses. A commission was appointed to inquire into the extent of such losses. The claimants were required to state, in proper form, every species of loss which they had suffered, and for which they thought they had a right to receive compensation. None of the injuries complained of were inflicted by the Government of Great Britain; they were inflicted by the action of its enemies. In principle, their claims were precisely the same as the claims of our loyal citizens would be if they were to demand compensation of this Government for injuries sustained not through its action, but through the action of its late enemies. Nevertheless, for such claims Parliament undertook to make compensation, and, after a long and careful examination of the claims, appropriated a sum for their settlement amounting to more than $16,000,000.
In September, 1871, immediately upon the close of the Franco-German war, France, although defeated, and subjected to the payment of a fine of $3,000,000,000 of franks to her conquerors, did not ask to avoid the obligation of making compensation to her despoiled subjects. Accordingly, the National Assembly provided not only for the payment of all private damages inflicted by the French authorities, but also provided for the payment of all exactions made upon French subjects in the name of taxes by the German authorities. The same decree appropriated 100,000,000 of franks, to be placed at once in the hands of the Ministers of the Interior and of Finance, to be apportioned between the most necessitous victims of the war; and appropriated a further sum of 6,000,000 of franks, to be distributed by the same ministers among those who suffered the most in the operations attending the attack made by the German Army to gain entrance into Paris.
Hugo Grotius wrote his treatise upon the “Rights of War” amidst the unparalleled barbarities which attended the Thirty Years’ War. It is doubtful if war between civilized nations ever before or ever since has been so cruel as that. In the single “Duchy of Wurtemberg, history asserts that 8 towns, 45 villages and 36,000 houses had been laid in ashes, and 70,000 hearth-fires completely extinguished; 7 churches and 444 houses had been burned at Eichsted. Many towns that had escaped destruction, were almost depopulated, 300 houses being empty at Nordheim. More than 200 had been pulled down at Gottingen, merely to serve as fuel. The wealth city of Augsburg, which contained 80,000 inhabitants before the war, had only 18,000 left when it closed. In 1835, there were not hands enough left at Schweidnitz to bury the dead, and the town of Ohlan had lost its last citizen. Forests sprang up during the contest and covered entire districts which had been in full cultivation before the war, and wolves and other beasts of prey took possession of the deserted haunts of man.”
Yet, standing in the midst of such widespread, unsparing devastation, Grotius did not hesitate to affirm, in the language already quoted, the obligation of the State to repair all damages suffered by any subject by the destruction of his property for its uses; and he added this most significant injunction: “Neither shall the State be absolved from this obligation, though for the present not able to satisfy it: But when the State is in a capacity, this suspended obligation shall resume its force.”
All claims against the Government must be urged upon one or more of the three grounds: (1.) Either that the claimant has benefited the Government or (2) that he has been damaged by the Government, or (3) that he has been promised money by the Government. But a promise is not of the slightest validity if it be unsupported by a consideration, either of benefit to the promisor or of loss to the promisee. When such conditions do exist, a promise adds nothing to the obligation to pay. The case of the Cynthiana claims is supported by both–by the consideration of the loss to the claimants, and of benefit to the Government. The claimants were injured by being deprived of their property ;the Government was benefited by the additional security afforded to a weak and imperiled garrison. No promise could add validity to such a claim; hence no claim ever was or could be preferred against the Government resting upon more impregnable grounds. It is sustained by the principles adjudicated by the courts; it is sustained by the commentators; it is sustained by precedents of Congress; and, above all, it is sustained by the Constitution; and besides, it is sustained by the precedents and usages of all Christian and civilized governments.
If precedents are not to be blindly followed, neither ought they to be wantonly destroyed. They are evidences of truth, and the force of the evidence is in proportion to the integrity and wisdom and patriotism of those who established them.
The question I now call upon you to decide, is not whether you shall establish a new and doubtful precedent, just now proposed and for the first time presented to your consideration, but whether you shall break down and destroy long-established precedents, patiently built up and sustained during a series of years, again and again, by this nation and its highest and most revered authorities.
And are you not bound to deliberately consider the claims of the citizens of Cynthiana, Ky., in the light of former precedents? These claimants have justly supposed that the policy of protecting private property against seizure and destruction for the public good, use, convenience or safety, was fully settled, not by a single [Page 261] act, but by repeated and deliberate acts of the Government, performed at distant and frequent intervals,; and now, in full confidence that the policy is firmly and unchangeably fixed, they come before you praying for relief.
As to compensation. Undoubtedly, in every case where private property is rightfully taken by military authority for the public good, use, safety or convenience, resulting in its destruction, the owner is entitled to just compensation from the Government for it.
But what is just compensation? Various definitions have been given. It is stated as meaning a fair equivalent, or being made whole, as far as money is the measure of compensation. Take either of these definitions as the rule of compensation, and the claimants in this case would be entitled to compensation for their property at its marketable value at the time when and the place where taken and destroyed.
The fifth article of the amendment to the Constitution of the United States contemplates that private property shall not be taken for public good, use, safety or convenience without just compensation.
In order that justice may be done to the Government and to the claimants; we ask Congress to pass a bill authorizing and directing the Secretary of War to appoint and send a commission to the city of Cynthiana, in Harrison County, Ky., instructed to ascertain all the circumstances under which said property was taken and lost, and the kind of property lost by each claimant, and its marketable value at the time and place, and report the facts to Congress on or before December 15, 1878, for action.
W.S. HAVILAND, Attorney.
On March 3, 1879, Mr. Keifer, from the Committee on War Claims, submitted the following report, on the relief of certain citizens of Cynthiana, Ky., which was laid on the table and ordered to be printed:
The Committee on War Claims, to whom was referred the bill (H.R. 1030), and the petitions of certain citizens of Cynthiana, Ky., for and on account of property destroyed by fire on the 11th day of June, A.D. 1864, during the battle between the Union and the so-called Confederate forces, having considered the same, respectfully report:
That the petition alleges that on the said day a fire occurred during a battle at Cynthiana, Ky., in which property was destroyed belonging to certain citizens thereof, and of the value, viz.:
James J. Parish
$ 1,600 00
Elizabeth Oxley
16,555 00
Greenup Remington
10,000 00
W.W. Trimble
2,500 00
Henry Johnson
1,000 00
Charles A. Webster
18,000 00
F.M. Gray
4,100 00
James S. Frizell
12,680 00
Frank Box
6,700 00
Ellen English, administratrix, etc.
2,000 00
Frazer & Shawhan
7,000 00
Susan Tomlinson
4,000 00
J.L. Magee
18,000 00
G. Remington, administrator, etc.
3,000 00
Herman Rohs
200 00
D.A. Givens
15,747 00
J.N. Webb
1,000 00
J.E. Dickey
700 00
John Quinlan
120 00
W.L. Northcutt
22570 75
J.N. Smith
5,113 00
J.N. Smith, guardian, etc.
2,000 00
H.C. Nebel
653 00
John Bruce
1,372 00
Mary A. Hall
420 00
E.T. Rankin, administratrix, etc.
6,563 00
J.W. McIntosh
31,730 00
R.C. Wherritt
32,000 00
F.X.C. Nott, administrator, etc.
4,000 00
The aggregate value of the property alleged to have been destroyed is $231,500, which sum it is proposed by said bill to appropriate for the benefit of the sufferers.
It is proper to state that on behalf of the said claimants, it has been proposed to your committee to report a bill authorizing and directing the Secretary of War to appoint a commission for the purpose of investigating the said claims, and report thereon all the circumstances under which said property was occupied and destroyed, and the nature and value of the same.
Your committee have considered the claims in every aspect in which they have been presented, and have unanimously arrived at a conclusion in relation to the same.
The conclusion arrived at by your committee, renders it unnecessary to consider the question of the value of the property destroyed.
Your committee have considered the petition of claimants as true, and have accepted the language used in the bill as reciting the real circumstances under which claimants’ property was destroyed, and the nature of the same.
The concluding part of said bill is as follows:
“The said payments, to be in full satisfaction and discharge of all claims and demands by the said parties, or their heirs or representatives, for, or on account of the loss or destruction of their property, at the time of the attack made upon said city of Cynthiana, by the Confederate forces, under the command of Gen. John H. Morgan, on the 11th day of June, 1864, during which the United States forces, under command of Col. Conrad Garis, of the One Hundred and Sixty-eighth Regiment Ohio Infantry Volunteers, took shelter in the houses of said citizens, thereby causing them and their contents to be set on fire, and destroyed by the enemy.”
The claims are all of the same character; all the property of each claimant is alleged to have been destroyed from the same cause, at the same time, and under like circumstances. The property destroyed consisted of houses and their contents. It will be sufficient to give here the circumstances under which the property of one of the sufferers was destroyed.
James J. Parish, who lost a house and its contents, says in his petition:
“Said house and contents was destroyed by fire, and was situated on south side of Pike, between Walnut and Church streets, and adjacent to east side of Kentucky Central Railroad track, and east of the Rankin House, in the City of Cynthiana, in Harrison County, Ky., as set forth by the affidavit of William J. Stone, who set it on fire, and herewith filed. Said loss occurred under the following circumstances, to wit:
“On the 11th day of June, 1864, the Federal forces, under command of Col. Conrad Garis, of the One Hundred and Sixty-[Page 262]eight Regiment Ohio Infantry Volunteers, took shelter in said city, by placing his men and other citizen soldiers in houses to resist an attack of the enemy under command of Gen. John H. Morgan, when said city was set on fire by said enemy, to dislodge said Federal forces.”
The following is the substantive part of the affidavit of William J. Stone, later Speaker of the House of Representatives of the State of Kentucky, and referred to above. He says:
“That his age is thirty-four years, and that his post office address is Eddyville, Lyon Co., Ky., and that he is the identical William J. Stone, who was Lieutenant of Company F., Fifth Regiment Kentucky Cavalry Volunteers, commanded by Col. D. Howard Smith, in Gen. John H. Morgan’s command, C.S.A. forces; and, on the 11th day of June, 1864, our said forces marched upon the city of Cynthiana, in Harrison Co., Ky., when and where we attacked a Federal force who had taken shelter in houses in said city, under command of Col. Conrad Garis, of the One Hundred and Sixty-eighth Regiment Ohio Infantry Volunteers, and, in order to dislodge said Federal forces, our said forces set said city on fire. I was ordered, and did set a house on fire, on south side of Pike street, on east side of Rankin House, near the Kentucky Central Railroad, to drive the Federal forces out of said Rankin House.”
The affidavit of D. Howard Smith is to the same effect. He says:
“That he is now Auditor of Public Accounts for the State of Kentucky, and that he is the identical D. Howard Smith, who was Colonel in the command of Gen. John H. Morgan, C.S.A. forces; and, on the 11th day of June, 1864, our said command marched upon the city of Cynthiana, in Harrison Co., Ky., when and where we attacked a Federal force, who had taken shelter in houses in said city, under command of Col. Conrad Garis, of the One Hundred and Sixty-eight Regiment Ohio Infantry Volunteers, and in order to dislodge said Federal forces, in compliance with orders from Gen. John H. Morgan, our said forces did fire said city to drive said Federal forces out of said houses.”
Col. Conrad Garis, the Commander of the Union forces at Cynthiana, Ky., at the time of the battle (June 11, 1864), in his affidavit states:
“That his post office address is Washington Court House, Fayette Co., Ohio, and that he is now Treasurer of said county; and that he is the identical Conrad Garis, who was Colonel of the One Hundred and Sixty-eight Regiment Ohio Infantry Volunteers; and, on the 11th day of June, 1864, he took possession of the city of Cynthiana, in Harrison Co., Ky., by placing his said command in houses to resist an attack of the enemy, under command of Gen. John H. Morgan when said enemy set said city on fire to dislodge his said command; and, Col. George W. Berry, who was mortally wounded in said battle, assisted in distributing his said command in the different houses, and also gave valued assistance in said engagement.”
The most favorable statement of the circumstances, under which said property was destroyed, as presented by and on behalf of claimants, is to the effect, that Col. Garis, in command of the Union troops at Cynthiana, Ky., found a battle with the enemy was imminent, took possession of the place, and distributed his forces in some of the houses of claimants, and perhaps others, with a view to protecting the place from falling into the hands of the enemy, as well as to protect his command in battle; and, while thus held, a battle ensued, in which the Confederate forces, to dislodge the Union soldiers, set fire to the place, and caused the destruction of the houses and property, for which payment is now sought from the United States.
That a great misfortune fell upon certain of the inhabitants of Cynthiana there can be no doubt, and for which they were not responsible.
Your committee assume that all the claimants were loyal. The legal presumption is that they were, as the resided in a loyal or non-seceding State.
The claimants’ property was destroyed by the general ravages of war, and for which payment is never made, under the law of nations, or upon any principles of public policy or duty.
Primarily, the destruction was caused by the enemy. Confederate troops fired the buildings; but this fact would not, in the opinion of your committee, change the liability from what it would have been if the Union forces had, when a battle was imminent, or while it raged, set fire to the buildings and caused their destruction. The loss would still have been classed with property destroyed by the misfortunes and casualties of war, for which no compensation is ever made to friend or foe, loyal or disloyal. The petitioners have pressed, with much earnestness, upon your committee, through their counsel and otherwise, the theory that the seizure of the houses, under the circumstances stated there, was an appropriation of the same, to a public use, within the meaning of the Constitution, and is destruction, while thus appropriated, gave the owners the right to a just compensation for the same. They contend that the latter clause of the fifth amendment to the Constitution of the United States secures them this right.
The clause relied on is as follows:
“Nor shall any person * * * be deprived of life, liberty or property, without the due process of law; nor shall private property be taken for public use without just compensation.”
The error is in assuming that a commanding officer, by occupying, under the exigencies of a battle, by his troops, private buildings, or by shielding himself and his troops behind them during a conflict, within the meaning of the Constitution, appropriates private property to a public use. The temporary occupancy of private property, by the troops of the United States, even where a battle is not imminent or actually raging, has never been held or regarded as an appropriation of the same to a public use. When private property is taken for public use, merely to be held temporarily, no appropriation, in an Constitutional sense, results. Mere possession of private property, by public officers or soldiers of the United States, cannot be construed to be an appropriation of the property to a public use.
It has been expressly held that where a building was burned by accident, where it had been seized by the war power of the General Government for a hospital, or for other use by the United States authorities, that there was no liability resting upon the Government to pay for it. [Lagow’s Case, 10 Court of Claims, 268; Green’s Case, 10 Court of Claims, 466; Filor’s Case, 9 Wall, 45.]
It is said there is a case where the United States were held liable for the appropriation of a mill burned by an officer of the United States to prevent it from falling into the hands of the so-called Government.
This case is known as the Grant Case, and will be found reported in 1st Court of Claims, p. 141. it is only a decision of the Court of Claims, and, as authority, it has been doubted.
Your committee, however, does not think it necessary, for [Page 263] the proper determination of this case, to deny the authority of the Grant Case.
In that case, there was a complete destruction of the property, by a direct order of an officer of the United States, to prevent its falling into the hands of the Confederates, and being used by them to aid the rebellion. There is no analogy between that case and the cases of the Cynthiana citizens, whose property was destroyed in battle by Confederate soldiers.
In the case of Dr. Best, of Paducah, the commanding officer of the United States, had, by order destroyed his valuable house to set it out of the range of the guns of the United States Army, and to prevent the possibility of its use, by the enemy, in case a battle took place at that place. A bill was passed through Congress to reimburse Dr. Best for the loss of his house; but President Grant vetoed the bill, on the ground that there was no just liability resting on the Government to make good such loss. His veto was sustained. There may be man reasons why Dr. Best should have been paid; but, certainly, if he had no valid claim, the Cynthiana claimants have no shadow of right to have their losses reimbursed. It will be a dangerous precedent to recognize or establish the principle, that property destroyed by Confederates, shall be paid for by the United States Government.
Your committee are unanimous in concluding that the several claimants, on the representations set forth in the petitions, and the recitations of the bill, have no valid rights whatever against the United States Government. It would only be doing a vain thing, attended with much expense, to authorize the appointment of the board asked for, as, on the showing of claimants, they have no possible claims for which the United States can be held liable.
Your committee, therefore, report back the said bill, and respectfully ask that it do not pass.
This adverse Report did not deter the Kentucky General Assembly from the following action on the subject:
Resolution of the Kentucky General Assembly, in regard to the war losses by fire at Cynthiana in June, 1864. WHEREAS, on the 11th day of June, 1864, Col. Conrad Garis of the One Hundred and Sixty-eight Regiment of Ohio Infantry Volunteers, took shelter in the city of Cynthiana, in Harrison County, Ky., by placing his men in houses to resist an attack of the enemy under the command of Gen. Jon H. Morgan, and, during the fight which ensued, the city was set on fire by the enemy to dislodge said Federal forces, resulting in the destruction of the houses and merchandise of the following persons, viz.: J.J. Parris, F.M. Gray, Thomas English, W.W. Trimble, John L. Magee, D.A. Givens, John Quinlan, J. Newt Smith, Mrs. Mary A. Hall, Robert C. Wherritt, Lawson Oxley, Henry Johnson, James S. Frizell, T.A. Frazier, H.E. Shawhan, Eliza Bell, Isaac N. Webb, William L. Northcutt, H.C. Nabel, Thomas R. Rankin, Greenup Remington, Charles A. Webster, Frank Box, Harmon Rohs, Susan Tomlinson, J.E. Dickey, I.N. Smith, John Bruce, J.W. McIntosh, and F.X.C. Nott, administrator, etc.
And, WHEREAS, it appears the houses were converted to the use of the Federal soldiers, and absolutely used to protect the men as the danger was imminent and impending, and the necessity was urgent for the public service, and was such as would not have admitted delay, it seems the property was taken possession of by the Union forces whilst resisting the hostilities of the public enemy; and said citizens were called upon, and required to give up their private property for the advantages of the community; this property having been actually taken for the use of, and used by the army of, the United States as shelter, and while thus occupied, it was destroyed.
These being the facts in the case in the opinion of this General Assembly, the fifth article of amendment of the Constitution of the United States, contemplates that private property shall not be taken for public good, use, safety or convenience, without just compensation therefor, otherwise public burdens would be shared unequally.
Be it, therefore, Resolved by this General Assembly of the Commonwealth of Kentucky, That our Senators and Representatives in the Congress of the United States be respectfully requested to urge upon the Government of the United States the speedy settlement and payment of said claims; that the Government take such early and speedy steps as they may deem proper to accomplish this end, by bill or otherwise, in order that justice may be done alike to Government and claimants, we suggest that our Senators and Representatives urge Congress to pass a bill authorizing and directing the Secretary of War to appoint and send a commission to the city of Cynthiana, in Harrison County, Ky., instructed to ascertain all the circumstances under which said property was destroyed, and the kind of property lost by each claimant, and the marketable value at the time, and report all the facts to Congress for consideration and action.
Approved March 6, 1880.
I certify the above to be a true copy of the original which passed by both Houses and signed by the respective Speakres.
(This is a copy of forgoing resolution, signed by)
THOMAS G. POORE, Clerk H.R.
–L.G. Marshall.