mission shall have the force and effect named and provided in the XVIIth Article of said Treaty. (Signed) "L. CORTI, "RUSSELL GURNEY, Of the 478 British claims presented to the Commissioners, 181 were allowed, 8 were withdrawn, one was dismissed without prejudice to a new memorial being filed, 28 were dismissed for want of jurisdiction, and 260 were disallowed. All the American claims presented were disallowed. The following Table will show by which of the Commissioners the 489 awards made were signed : 1. Unfavourable awards in British cases. 272 signed by the three Commissioners. 17 signed by Commissioners Corti and Frazer only. 2. Unfavourable awards in American cases. 15 signed by the three Commissioners. 4 signed by Commissioners Corti and Gurney only. 3. Favourable awards in British cases. 85 signed by the three Commissioners. 94 signed by Commissioners Corti and Gurney only. 2 signed by Commissioners Corti and Frazer only. It must be remembered that in the cases where favourable awards were made, and in which the United States' Commissioner dissented, the British Commissioner, although he might have been of the opinion that the award was insufficient, was nevertheless obliged to sign the same, so as to obtain an award at all for the claimant. On account of the immense size of the printed record, which consists of over 55,000 pages, it would be perfectly impossible to report every one of 497 cases decided by the Commission; it is therefore proposed simply to report those in which important legal points are raised. In the Appendix, however, there will be found an accurate list of all the claims presented, giving*1stly. The names of the claimants. 2ndly. The ground or character of the claims. 4thly. The amount claimed. And, 5thly. How said claims were decided. BRITISH CASES. As to the standing of a British subject as such before the Commission, said British subject having been domiciled for many years in the United States. No. 5.-Anthony Barclay v. The United States. The claimant, a native-born British subject, had resided in the United States for many years prior to 1858, for the greater part of the time engaged in Her Majesty's Consular Service. In 1858 he took up his residence in the State of Georgia, where he became the owner of two plantations, leased a third, and cultivateá and carried on all three. His claim was for acts of devastation and pillage committed by General Sherman's army on all three of his plantations, and for the appropriation and occupation of two of them. The United States demurred to the memorial on three grounds-1st. Generally that no facts constituting a claim against the United States were set forth; 2ndly, that the acts complained of belonged to the category of those incidents of war, for which the sufferer had no remedy under the law of nations, and for which the United States were not responsible; 3rdly, that the claimant having been at the time of the alleged acts, domiciled and engaged in trade and business within the enemy's country, could not claim the position of a subject of Her Britannic Majesty within the XIIth Article of the Treaty. The United States' Counsel, assisted by the Honourable E. Rockwood Hoar, contended: I. That the Treaty created no new liability, but simply recognized such as existed under the law of nations. *See Paper No. 1. II. That the respective terms "citizens of the United States," and and "subjects of Her Britannic Majesty," are to be taken, not in their strict meaning under the municipal law of absolute citizenship for all purposes, or paramount allegiance to a Sovereign, but in the larger sense recognized by international law. III. Under the international law every person is deemed a subject or citizen of that country within which he is domiciled-or has taken up his residence permanently-without regard to birth or naturalization. This principle prevails in the Admiralty Courts of Great Britain and the United States, both in prize cases and on the instance side of the courts. It prevails in the Common Law Courts in insurance cases. It has been expressly adjudicated by the Supreme Court of the United States, and by the Privy Council in England ("The Pizarro," 2 Wheaton; Countess of Conway's case, 2 Knapp). It has been recognized in the diplomacy of Great Britain, &c., &c., &c. The Treaty of 1871 must be considered as having been made in the light of all these precedents. IV. Within the principles above established, Barclay is not a subject of Her Britannic Majesty. V. Her Britannic Majesty had recognized a state of war between the United States on the one hand, and the power under which the claimant lived on the other. VI. The Treaty relates to a period of war, and must be construed under the laws of war. Under the laws of war the claimant was a citizen of the enemy. VII. The claimant may have been for some purposes a subject of Her Britannic Majesty. The question was-was he in respect of this claim intended to be embraced within this Treaty? He was not-since the Treaty only related to what could be called "British property," and contemplated only such persons as were, by the laws of war, subjects of Great Britain. Her Britannic Majesty's Counsel contended : I. That the claimant's domicile, if it could be called a domicile, was not in the State of Georgia, but in the United States, or in the State of Georgia, as part of the United States. Great Britain had no Treaty stipulations with the State of Georgia, nor could she make any. The fact that the claimant resided in Georgia no more affected his right to claim before this Commission than would his residence in any other part of the United States. II. If the position of the United States' Counsel were maintained, the Treaty would be held to provide redress, not for those native-born subjects residing in the United States, who had appealed to their Government, and whose claims had been the subject of diplomatic correspondence, but for those only who, remaining in their native country, had voluntarily exposed their property to the risks of war. III. The primary and natural import of the words of the Treaty ("all claims on the part of subjects of Her Britannic Majesty ") was, that the claims of all persons owing allegiance to, and having the corresponding right of protection from the British Crown, are provided for. The Treaty, in fixing the period of the civil war as that during which claims must have arisen, certainly referred principally to persons and property situated in the United States. It cannot receive the forced construction contended for by the United States. There was peace between the high contracting parties during the period fixed by the Treaty, and at the time the Treaty was made. It is only necessary that the claimant in respect of this claim," under the Treaty of 1871, should be a subject of Her Britannic Majesty. If the broad assertion of the United States were sustained, those Southerners who took up their residence in Great Britain for the express purpose of aiding the rebellion, were, within the meaning of the Treaty, British subjects. 66 IV. The words of the Treaty are quite large enough to embrace this case, and to hold otherwise would be to hold that the Treaty meant what it did not say, viz., that only those British subjects who resided in their native country were to be claimants before the Commission. The words "subject" and "citizen" have no special technical signification under the law of nations, and it is for the United States to show that they are not used in their primary and natural sense if they wish to maintain this. In the prize courts the question is as to the national character of merchandize, and is determined upon considerations wholly irrespective of the correlative duties of allegiance and protection. V. This same distinction between the national character of property and the nationality of persons has been laid down by the Supreme Court of the United States, and the title of American citizens to the protection of their Government, notwithstanding foreign domicile, has been declared by Congress (Act of July 27th, 1868). This same right of protection is recognized by writers on the public law generally, and in the legislation of the United States the distinction between citizens and domiciled aliens, is repeatedly noticed and admitted. Moreover, the claims of British subjects, living in the United States as such, "for acts committed against their persons or property" during the period of the late war, were frequently made the subject of special examination by the War Department. VI. The Treaty does not pretend to do more than to limit the jurisdiction of the Commission by the personal status of the claimant, and the period during which the acts complained of must have been committed. Its language plainly embraces the claimant's case. The Commissioners rendered the following decision: "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. It "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 this Treaty to be included in that term. is undoubtedly true, as appears from various cases cited in the arguments 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." For the briefs on demurrer in this case, see Appendix, Papers Nos. 5, 6 and 7. |