Imágenes de páginas
PDF
EPUB

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 adjournments 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. On the lastnamed day it again met at Newport, and 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 commis. sioners, 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 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The entire number of cases, American and British, decided by the commission (after deducting the eight claims withdrawn by Her Majesty's agent) was four hundred and eighty-nine.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 united in the awards in three hundred and seventy-two cases; in ninety-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. Commis. sioner 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 respective 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 have 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 bave 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 questions which arose and were disposed of before the commission in their order.

I.-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, having 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 Britannic Majesty” were to be taken not in their strict meaning, under municipal law, of absolute citi. zenship for all purposes, or of paramount 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

[ocr errors]

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; Law. rence'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 Berpon, 1 id., 102; The Noyade, #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 rs. 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, 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, 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. 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 20 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 I., 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 donbt; 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 auother 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, 80 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

liability of the claimant's property to seizure or destruction by the Federal Army. It is difficult to lay down a general rulo 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 deinurrer 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 froin 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.

« AnteriorContinuar »