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the governinent under which they resided, and who thereby owed to the country of their domicile that allegiance, perhaps temporary and qualified, exacted by such domicile. In other words, it was contended that within the terms of the treaty all persons permanently domiciled within the United States were to be taken as citizens of the United States, and all persons permanently domiciled within the jurisdiction of Great Britain were to be taken as subjects of Her Britannic Majesty.
The counsel for the United States cited in support of this doctrine the following elementary writers : Twiss' Law of Nations, (war, 233, 298–9; id., 82, 83; 3 Phillimore, 603; 1 Kent's Com., 74; 2 id., 63; Lawrence's Wheaton, 557 to 567; Calvo's Derecho Internacional, 526 to 536; Halleck, 702, 705, 717; 3 Greenleaf's Ev., $ 239; Story's Conflict of Laws, $ 68.
He cited, also, from the British and American reports in admiralty and prize cases, the following: The Indian Chief, 3 Rob., 12, 22; The Citto, id., 38; The Harmony, 2 id., 322; The Bernon, 1 id., 102; The Noyade, 4 id., 251; The Danous, id., 255, n.; The President, 5 id., 227; The Anna Katherina, id., 167; The Matchless, 1 Hagg. Adm., 97; The Schooner Nancy, Stewart's Rep., (Nova Scotia, Vice-Admiralty,) 49; The Pizarro, 2 Wheat., 227; The Charming Betsey, 2 Cranch, 64; The Venus, 8 id., 253 ; The Francis, 1 Gall., 314; The Ann Green, id., 274; The Joseph, id., 545, 568; Mrs. Alexander's Cotton, 2 Wall., 417; The Venice, id., 274; The Peterhoff, 5 id., 60.
Also, from the common-law reports : Marryatt vs. Wilson, (in Ex. Ch.,) 1 B. & P.; S. C., (in King's Bench,) 8 T. R., 31; McConnell vs. Hector, 3 B. & P., 113; Tabbs vs. Bendelack, id., 207, n.; Bell vs. Reid, 1 Maule & Selwyn, 726; Albretcht vs. Sussman, 2 Vesey & Beames, 322.
Also, from the British Privy Council cases, on questions arising under the treaty of 1814 between Great Britain and France; The Countess of Conway's case, 2 Knapp P. C. Rep., 364; Drummond's case, 2 id., 295.
He also cited the case of the Messrs. Laurent, decided by the umpire, Mr. Joshua Bates, under the convention of sth January, 1853, between the United States and Great Britain, given in the report of the commissioners under that convention, Senate documents, first and second sessions, Thirty-fourth Congress, vol. 15, No. 103, p. 120.
Also, the decisions of the commissioners under the treaty of Guadalupe-Hidalgo, 2d February, 1848, between the United States and Mexico, in the cases of Clow, Powell, Cook, Haggerty, Davis & Co., and Barkley, administrator, in manuscript in the State Department.
Also, the correspondence of the British foreign office, relating to the cases of Kirby, Smith, Rothschild, Aslıburnham, Stewart, and others, printed in the British Blue Book of 1871, Paper No. 4, on the FrancoGerman war.
Also, from the parliamentary debates, the speeches of Lord Palmerston, Hansard, third series, vol. 146, på 41 ; of Sir Richard Bethell, id., 49; and of Lord John Russell, id., 56, on the Greytown case. Also, the
speech of Lord Palmerston on the question of compensation for property of British merchants destroyed at Uleaborg, id., 1045, 1046.
He also cited the letter of Mr. Marcy, Secretary of State of the United States, to Count Sartiges, the French minister, Ex. Doc. No. 9, Senate, Thirty-fifth Congress, first session; and Earl Clarendon's citation of same, Hansard, third series, vol. 146, p. 53. Also, Lord Palmerston's speech on the case at Leghorn, Hansard, third series, vol. 113, p. 635; and the note on the same case in Vattel, Guillaumin's ed., 1863, vol. II, p. 49; and the dispatch from Prince Swartzenburg to Baron Hatter, of 14th April, 1850; and from Count Nesselrode to Baron Brunow, of 2d May, 1850, cited in Torres Caicedo Union Latino Americano, pp. 343, 348. Also, the opinion of Attorney-General Stanbery on the bombardment of Valparaiso, Attorney-General's Opinions, vol. 12, p. 21; also, Professor Bernard's “ Neutrality,” pp. 443, 444 to 457, n.
Her Majesty's counsel, on the other hand, cited on this point the decision of Dr. Lieber, the umpire of the commission under the convention of 4th July, 1868, between the United States and Mexico, in the cases of Anderson and Thompson, and of the Messrs. Barron. Also, the case of the Charming Betsey, 2d Cranch, 120; Phillimore, part 5, cap. 1; Grotius, lib. 2, cap. 25; Vattel, lib. 2, cap. 6, sec. 7; id., lib. 2, cap. 17, secs. 263, 270; Wheaton, 355; Kent, vol. 1, sec. 4; the Constitution of the United States, Art. 3, sec. 2; the Judiciary act of the United States of 1789, (1 Stat. at L., 76, 78, secs. 9, 11;) the act of 27th June, 1868, (15 Stat. at L., 243 ;) the abandoned and captured property act of 12th March, 1863, (12 Stat. at L., 820 ;) the correspondence between Lord Lyons and Mr. Seward in relation to the case of Henry E. Green, United States diplomatic corr., 1863, part 1, pp. 515, 570; and the annual message of President Lincoln to Congress, of December, 1863, official publication, pp. 2, 4.
The commission overruled the demurrer of the United States by the following decision, rendered on the 16th December, 1871, in which all the commissioners concurred:
The first thing to be decided in this case is whether the commissioners have jurisdiction, which depends upon whether the claimant is, within the meaning of the treaty, a British subject.
That he is in fact a British subject there is no doubt; but it is contended that, being domiciled in the United States, he is not one of those intended by the framers of the treaty to be included in that term. It is undoubtedly true, as appears from various cases cited in the argument, that the subject or citizen of one state domiciled in another acquires, in some respects, privileges, and incurs liabilities, distinct from those possessed in right of his original birth or citizenship. But he still remains the subject or citizen of the state to which he originally belonged, and we see no reason to suppose that it was the intention of either government to put the limited meaning on the words “British subject,” contended for in the arguments in support of the demurrer, so as to exclude from our jurisdiction a British subject who has never renounced his original allegiance, or become naturalized in any other country. The fact of the claimant having his domicile in one of the Confederate States will,
have a material bearing on the point, also raised in the demurrer, as to the
liability of the claimant's property to seizure or destruction by the Federal Army. It is difficult to lay down a general rule applicable in all cases to the rights of an invading army, nor, in this particular case, is that necessary.
The statements contained in the memorial are, for the purposes of this argument, to be assumed to be true. One of the statements in the memorial is, that part of the claimant’s property was taken possession of by the Federal Army without any military necessity, convenience, provocation, or inducement, and plundered, and that part was wantonly destroyed.
Supposing this to be true, we are not prepared to say that some liability might not be established against the United States Government.
The demurrer is, therefore, disallowed; but the United States Government will be at liberty, if they think fit, to take issue upon the facts alleged in the memorial.
In the case of James Crutchett vs. The United States, No. 4, a claim for property taken and appropriated by the United States in the District of Columbia, the memorial showed the claimant at the time of the alleged injuries, and for many years previous, domiciled at Washington.
A demurrer was interposed specifying, among other grounds, that the claimant, being so domiciled within the United States, was not entitled to the standing of a British subject within the treaty.
The case was submitted on this point upon the authorities cited in Barclay's case, as above noted, and the demurrer was overruled.
The decisions of the commission in these and other similar cases established the doctrine that, so far as relates to the question of jurisdiction, the national character of the party is to be determined by his paramount allegiance, where that is not double, irrespective of the fact of domicile.
In the case of George Adlam vs. The United States, No. 40, it appeared from the memorial, in addition to the fact of domicile within the insurrectionary States, that the claimant had taken the preliminary steps toward naturalization under the statutes of the United States, by filing his declaration on oath of his intention to become a citizen of the United States, and to renounce all allegiance to Her Britannic Majesty, the sovereign of his nativity.
The counsel for the United States on demurrer claimed that such oath, added to the fact of domicile, established the national character of the claimant as a citizen of the United States within international law, and barred him from any standing as a British subject under the treaty.
The demurrer was overruled.
In the case of Joseph Gribble vs. The United States, No. 116, the proofs on the part of the defense showed that the claimant, who had filed his declaration of intention, under the naturalization act, before the presentation of his memorial, had subsequently, and pending his claim before the commission, completed his naturalization, and was at the time of the submission of his cause a citizen of the United States. His claim was disallowed on the merits; but the undersigned is advised that the commission was unanimous in the opinion that his naturalization had deprived him of a standing before the commission as a British subject.
In the case of John W. Sharpe vs. The United States, No. 92, the claimant's proofs showed that he had exercised rights of citizenship of the United States, by voting, prior to the presentation of his memorial.
The counsel for the United States contended, first, that such acts constituted an estoppel against the claim of the claimant to a standing as a British subject under the treaty; and, second, that if strictly and technically there was no estoppel, such acts were to be regarded as very strong evidence of the fact of naturalization, and sufficient to overcome the claimant's own denial on oath of such naturalization.
An award was made in favor of the claimant, Mr. Commissioner Frazer dissenting; and the objection on the part of the United States was thus overruled.
In the case of Robert Eakin vs. The United States, No.118, the proofs showed that the claimant had, in 1857, in the State of Mississippi, exercised acts of citizenship of the United States by holding an office, which, under the laws of Mississippi, could only lawfully be held by a citizen of the United States; and that he had, in 1862, the State of Mississippi being then in rebellion against the United States, held a like office, which, by the then laws of Mississippi, could only be held by a citizen of the Confederate States.
The counsel for the United States contended that the claimant was, by each of these acts, debarred from a standing as a British subject.
The claim was disallowed without a separate and distinct decision of this question; but the undersigned is advised that a majority, at least, of the commission were of opinion that such holding of office under the rebel government was of itself a violation of neutrality, and debarred the claimant from a standing before the commission.
In the case of the executors of Robert S. C. A. Alexander vs. The United States, No. 45, the memorial showed the claimants' testator to have been born in the United States in 1819, but alleged him to have been the son of Robert Alexander, a native of Scotland, and a natural-born subject of the British Crown. It also alleged that the testator had always held and claimed himself to be a liege subject of the British Crown, and that he had always been so held and regarded by all others. That in his early youth he had returned to Scotland, and there for many years held office in the commission of the peace and other posts of trust under the British Crown. That during the war his residence was partly in Scotland and partly in Kentucky, he having died in Kentucky in December, 1867. The claim was for the occupation of and injuries to lands and real estate of the testator in Kentucky by United States troops during the war.
On demurrer it was contended, on the part of the United States, that the claimants had no standing before the commission in the right of their testator as a British subject; that, although by the law of Great Britain he was a British subject, he was also by the laws of the United States a citizen of those States; and that, in such a case of double or conflicting allegiance, the claimant was not to be regarded as a subject of Great Britain within the meaning of the treaty.
The counsel for the United States cited the Revised Statutes of Kentucky, vol. 1, p: 238, c. 15, art. 1, sec. 1, as establishing the fact of citizenship under the law of Kentucky; and also Drumond's case, 2 Knapp's P. O. Rep., 295.
The commission held the claimants not entitled to a standing, and dismissed the case, Mr. Commissioner Gurney dissenting.
Mr. Commissioner Frazer read a written opinion, as follows: The testator was by British law a British subject, but he was also by the law of the United States an American citizen, by reason of his birth in Kentucky; and he was not capable of divesting himself of his American nationality by mere volition and residence from time to time in Scotland and holding office there.
Being, then, a subject of both governments, was he a British subject within the meaning of the treaty? The practice of nations in such cases is believed to be by their sovereign to leave the person who has embarrassed himself by assuming a double allegiance to the protection which he may find provided for him by the municipal laws of that other sovereign to whom he thus also owes allegiance. To treat his grievances against that other sovereign as subjects of international concern, would be to claim a jurisdiction paramount to that of the other nation of which he is also a subject. Complications would inevitably result, for no government would recognize the right of another to interfere thus in behalf of one whom it regarded as a subject of its own. It has certainly not been the practice of the British government to interfere in such cases; and it is not easy to believe that either government meant to provide for them by this treaty. In Drummond's case the terms of the treaty were quite as comprehensive as those of this treaty; and yet it was there held that the claimant was not within the treaty, not being within its intention. This was held even after it was ascertained that he was not a French subject, he having merely evinced his intention to regard himself as a French subject.
I am advised that in this opinion the presiding commissioner concurred.
In the case of Joseph Fry Mogridge vs. The United States, No. 345, the same principle was applied by a majority of the commission under a like state of circumstances, except that the memorial in effect alleged the claimant to have been born in Pennsylvania of native-born British subjects, never domiciled within the United States, but on a visit there at the time of his birth, and who returned to England within a few weeks thereafter, where the claimant remained during his minority. He was domiciled in the United States at the time of the alleged injuries—the taking and destruction of his property.
His claim was dismissed in like manner.
In the case of Joseph W. Scott vs. The United States, No. 220, for damages for wrongful imprisonment, and for appropriation and destruction of property, the proofs showed that the claimant was born in the British province of New Brunswick in 1813. His father, Daniel Scott, was born in the then province of Maine, in March, 1768, and continued to reside in Maine after the recognition of the independence of the colonies by