« PreviousContinue »
leged detention of vessels laden with saltpetre at Calcutta, in January and February, 1862, under ordinances of the governor-general of India prohibiting the exportation of saltpetre; one was for alleged injuries to the property of the claimant on the island of San Juan, in Washington Territory, U. S. A., in 1862 and 1864, by the alleged act or procurement of the commander of the British forces on that island, during the joint military occupation of the same by the United States and Great Britain,, under a convention between them for that purpose ; and one was for a royalty claimed to be due to the claiinant from the British gorernment by reason of the adoption and use by that government of a certain invention of the claimant, a citizen of the United States, for the improvement of breech-loading fire-arms.
Of the four hundred and seventy-eight British claims presented, two hundred and fifty-nine covered claims for property of British subjects alleged to have been taken by the military, Daval, or civil authorities of the United States and appropriated to the use of the Government of those States; one hundred and eighty-one covered claims for property of British subjects, alleged to have been destroyed by the military and naval forces of the United States; seven covered claims for property of British subjects alleged to have been destroyed by the rebel or confederate forces carrying on war against the United States; one hundred covered claims for damages by reason of the alleged unlawful arrest and imprisonment of British subjects by the authorities of the United States; seventy-seven covered claims for damages by reason of the alleged unlawful capture and condemnation or detention of British ves. sels, their cargoes, &c., as prize of war by the naval forces and civil authorities of the United States; three covered claims for damages by reason of the alleged unlawful warning off of British vessels from the coasts of the States in rebellion by the United States cruisers, in the absence of any lawful blockade of the coasts and ports from which the vessels were so warned; and thirty-four covered claims of miscellaneous character.
Many of the memorials singly included claims coming under two or more of the classes above named, a fact wbich explains the excess of the sum of the different classes above named over the entire number of memorials filed.
A schedule of the American and British claims, respectively, in their order as filed and numbered, showing the names of the claimants, the nature of their respective claims, and the time and place where they arose, the amounts claimed, and the final disposition of the same, will be found in the appendix, C. This schedule is accompanied by alphabetical indexes, giying separately the names of the citizens of the United States claimants against Great Britain, and of the subjects of Her Bri. tannic Majesty claimants against the United States, with reference to the number designating the claim of each person; and also by another alphabetical index referring to the vessels in respect of which damages were claimed, and the numbers of the cases in which such claims were made.
The commission continued its sessions in the city of Washington from the day of its first meeting, with adjournmeuls from time to time, down to the 10th day of May, 1873; on which day, under the authority of a supplemental article to the treaty concluded between the two governments, and authorizing the sessions of the commission elsewhere than in the city of Washington, it adjourned to meet at Newport, in the State of Rhode Island, on the third day of June following.
June following. On the last. named day it again met at Newport, aud continued its sessions without interruption, except by adjournments from day to day, until the 25th day of September, 1873. On the last-named day, having finally decided and disposed of every claim pending before it within the time limited by the treaty, the commission made and signed in duplicate its final award, signed by all the commissioners, a copy of which will be found in the appendix, D.
Separate awards in duplicate were made and signed by the commissioners, in respect of each claim finally passed upon by them, as the cases were respectively disposed of.
The duplicate original final awards, as well as the duplicate original individual awards in the case of each claimant, were delivered by the commission, through its secretary, to the respective
the respective governments, together with duplicate journals of the entire proceedings of the commission, kept by the secretary and certified from day to day by the presiding commissioner.
The entire number of cases, American and British, decided by the commission (after deducting the eight claims withdrawn by Her Majesty's agent) was four hundred and eighty-nine. All the commissioners noited in the awards in three hundred and seventy-two cases; in nivety-seven cases the awards were signed by Count Corti and Mr. Commissioner Gurney only, Mr. Commissioner Frazer dissenting; and in twenty cases the awards were signed by Count Corti and Mr. Commissioner Frazer only, Mr. Commissioner Gurney dissenting.
In the following pages I have attempted, to the best of my ability, to report the various principal questions which arose before the commission, giving a succinct statement of the allegations and proofs of the respective parties upon such questions, the arguments by which the respect. ive claims were supported and opposed, the authorities cited by the respective counsel, and, as far as practicable, the principles established by the respective decisions of the commission. In but a very small proportion of the whole number of cases decided were the grounds of the decision stated in the record or by written opinions of the several commissioners. Wherever the grounds of the decision appear in the record itself, I have carefully given the language of the record.
Mr. Commissioner Frazer has kindly furnished me with copies of a few opinions pronounced by him before the commission, some of them expressing the views of the commission, or a majority of it, and others dissenting opinions in cases in which his views were overruled by his associates upon the commission. I bave deemed these opinions of either class worthy of preservation, and have accordingly inserted them either in the body of my report under the respective cases in which they were delivered, or in the appendix. A very few written opinions are understood to have been delivered by Count Corti and by Mr. Commissioner Gurney, copies of which I regret that I have been unable to obtain for publication with this report.
I proceed to consider the various principal questious which arose and were disposed of before the cominission in their order.
1.-JURISDICTION AS TO THE PERSON.
Various questions as to the jurisdiction of the commission, in respect both of the persons entitled to a standing as claimants under the treaty and to the subject matter of the claims, arose and were disposed of in the course of the proceedings. These questions, so far as relates to the jurisdiction of the commission as to the persons entitled to claim under the treaty, may be summed up as follows:
1. The question early arose in several cases as to the sense in which the respective expressions "citizens of the United States” and “subjects of Her Britannic Majesty” were used in the treaty. This question was raised by demurrer in several of the early cases, and was argued at length in the case of Anthony Barclay vs. The United States, No. 5.
This claim was brought for the alleged taking and destruction of and injuries to real and personal property of the claimant, situated near Savannah, by the army of General Sherman, in December, 1864. The memorial alleged the claimant to have been a native-born subject of Her Britannic Majesty, but to have been domiciled for many years prior to the year 1858 within the United States, a portion of that time as Her Majesty's consul in the city of New York, and from that time forward to the end of the war a resident of Chatham County, Georgia.
A demurrer was interposed to the claim on the ground, among others, that “the claimant, baving been at the time of the alleged acts domiciled and engaged in trade and business within the enemy's country, cannot claim the position of a subject of Her Britannic Majesty within the twelfth article of the treaty."
Under this demurrer, the counsel for the United States contended that, under the twelfth article of the treaty, the terms "citizens of the United States” and “subjects of Her Britaunic Majesty” were to be taken not in their strict meaning, under municipal law, of absolute citizenship for all purposes, or of paramouut allegiance to a sovereign, but in the larger sense recognized by international law, in which sense it was contended that all persons were included within those respective expressions who by permanent domicile were within the protection of
the government 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 Greenleat'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 Anpa 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 tbe common-law reports : Marryatt vs. Wilson, (iu 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 Guadajupe-Hidalgo, 20 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, Ashburnham, 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, p. 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. 633; 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, 318. 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 prop. rty act of 12th March, 1863,712 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.
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 uudoubtedly true, as appears from various cases cited in the argument, that the subject or citizen of one state domiciled in au8ther 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 of course, have a material bearing on the point, also raised in the demurrer, as to the