REPLY OF MR. THOMAS, AGENT OF THE UNITED STATES, TO THE ARGUMENT OF DR. PHILLIMORE, M. P., ADVOCATE TO HER MAJESTY IN HER OFFICE OF ADMIRALTY, &c.

The learned advocate, Dr. Phillimore, has, in his opinion, reviewed and attempted to answer my argument in the case of the Messrs. Laurent. He admits that "a treaty or convention is to be construed, and particular expressions in it interpreted, agreeably to the rules of international law;" but he says that I do not cite any jurist in support of the meaning I give to the term "British subjects," as this is used in the convention.

It is important, in the outset, to observe that the learned advocate has admitted that we are not to look into the British statutes for the meaning of the term "British subject," but that we are to seek for its interpretation in the law of nations. The jurists and writers on international law to whom he refers do not make the law; they collect the decisions of the courts that determine what the law is, and it must be quite as authoritative to quote from the decisions as to cite the jurist who has merely collated and made comments upon them. However, it will not be difficult to cite both the jurists and the courts in support of the construction for which I contend.

Chancellor Kent is a jurist of acknowledged authority everywhere, in England and America, and he says "the position is a clear one, that if a person goes into a foreign country and engages in trade there, he is, by the law of nations, to be considered a merchant of that country, and a subject for all civil purposes, whether the country be hostile or neutral."

The claimants were engaged in trade in Mexico, while that country was at war with the United States, and hence Chancellor Kent's doctrine applies in the strongest manner. They are to be considered subjects of that country and, of course, enemies of the United States. If they were subjects of that country, they could not be at the same time British subjects, in the sense of the treaty, because Dr. Phillimore admits that its words are to be interpreted by international law, and that law looks only to see who are rendering practical allegiance, who are absolutely under the control and government of a country, in order to determine who are its subjects.—(One allegiance; see Phillimore, Int. Law, p. 347.)

In support of my view of the law on this point, I would cite Dr. Phillimore's own work on Domicil, page 133, where he quotes entire, and with approbation, the case of the ship Ann. This vessel was seized in the river Thames in 1812. The master was a British-born subject, and his family still resided in Scotland, but he was residing in America; an order in council decreed that all vessels under the flag of the United States, bona fide the property of his Majesty's subjects, purchased before the war, should be restored, and the question was, whether the master of the Ann was a British subject? Sir William Scott, whose decision Dr. Phillimore approves, said "he cannot take advantage of both characters at the same time. He has been sailing out of American ports. It is quite impossible he can be protected under the order in council, which applies only to those who are clearly and habitually British subjects, having no intermixture of foreign commercial character." Here is, from Dr. Phillimore himself, the exact interpretation of the words "British subject," for which I am contending. But he says again, at page 146 of the same work: "Every man is viewed by the law of nations as a member of the society in which he is found." "Residence is prima facie evidence of national character, susceptible, however, at all times, of explanation. If it be for a special purpose, and transient in its nature, it shall not destroy the original or prior national character but if it be taken up animo manendi, (with the intention of remaining,) then it becomes a domicil, superadding to the original or prior character the rights and privileges, as well as the disabilities and penalties of a citizen, a subject of the country in which the residence is established."

According to this rule of Dr. Phillimore, the claimants being found in Mexico were, by the law of nations, members of that society and subjects of that country; they are not, therefore, included within the provisions of a treaty to settle claims of "British subjects" upon the government of the United States.

Dr. Phillimore admits that persons residing in the enemy's country are considered as subjects of that country, in reference to their property on the high seas. If this is true of their property on the ocean, why is it not equally so of this same property when it is located in the country itself. It is then much more hostile, and clothes the owner who is with it more especially with the enemy character. Suppose an American citizen should now be residing in Sebastopol, his pro

perty on the ocean would be liable to seizure and confiscation, for his domicil being there, he would be invested with the national character of a Russian subject, and what he might have within that fortress would, if possible, render his Russian character even more complete. Will it be contended that, if his property there should be injured or destroyed, the British government must settle with him upon a different principle from that of the native-born Russian found in Sebastopol ? According to Dr. Phillimore's argument in favor of British-born subjects domiciled in Mexico during the war, he is entitled to be considered as a neutral, and, if hereafter there should be a convention to settle the claims of American citizens upon Great Britain, he may claim compensation for injury done to him or his property in Sebastopol. I apprehend the British government will never adopt any such rule.

Dr. Phillimore, to show that I have stretched the principle of the admiralty decisions too far, supposes an injury offered to a British merchant residing in Mexico, and all other means of redress being exhausted, asks "would not any jurist say the English government would be justified in making reprisals?" I will answer this by asking whether the United States would be justified in making reprisals for an injury that may be done to one of her citizens that may be found in Sebastopol? Every man found there (by the law of nations) is an enemy of Great Britain, and will be treated as a subject of the Emperor of Russia. When peace is made, the American citizen so situated will not be permitted to say that he is not bound by it, but that England has yet to make a separate settlement of his claims for property seized or destroyed. A treaty of peace binds every person in the country and settles all their claims; and upon this principle the treaty of peace between the United States and Mexico disposed of the claim of every man in that country upon the United States.

It is not true, then, to say that the English government would be justified by the law of nations in making reprisals for an injury done to a British-born subject residing in Mexico during the war between the United States and that country. She could no more interpose, as a matter of right, in behalf of a British-born than she could in favor of a Mexican-born subject, if they were both there engaged in business. What Dr. Phillimore says of the case of McConnell vs. Hector (3d Bosanquet and Puller, p. 114) is true, but he makes no reference to

the essential point in that case on which I relied. He says: "This case decided that persons who had incorporated themselves with the commerce of the enemy during war cannot sue in this country." Yet if he stops there, the impression is left that this is all that was declared to be law by that case. Lord Alvanley did not arrive at that conclusion without having first laid down the doctrine that "while an Englishman resides in the hostile country he is a subject of that country." It is clear, on this authority alone, that the claimants cannot be regarded as British subjects in their Mexican transactions. He

the case of Albrecht vs. Susman (2 Vesey and Beames Rep., p. 323) decided that the quasi diplomatic character of consule made no difference as to the law on this point. It also decided, however, that the consul was a subject of the enemy's country if he continued to reside there during war, and for a still stronger reason must the subject, holding no official position, and remaining in the enemy's country, be so regarded.

Conway's case (in 2d Knapp's Privy Council Reports) fully sustains the doctrine that a foreigner domiciled in a country is considered by the law of nations a subject of that country.

Dr. Phillimore's opinion, that the term "British subjects," used in the convention, embraces British-born subjects domiciled in Mexico, or engaged there in trade, and hence parties to the war between the United States and that country, is not therefore sustained by any of the cases he has cited, nor by his own authority.

LONDON, October 26, 1854.

JNO. A. THOMAS.

UPHAM, Commissioner of the United States:

In this case the Messrs. Uhde & Company had been for many years resident merchants in Matamoras, in Mexico. They remained there during the Mexican war and subsequent to its capture. The port was then opened for the introduction of merchandise, under regulations similar to those imposed on merchandise imported into the United States. The Star, belonging to the claimants, had been previously chartered at New Orleans for the Havana, and, from there, was to take a cargo of merchandise to Matamoras. On arrival, application was made to know if the vessel might enter the port, and she received a permit from G. S. Cook, at the mouth of the Rio Grande, that the vessel might enter to discharge her cargo at Barita or Matamoras.

The vessel proceeded to Matamoras, landed her cargo without further license, or rendering any account for duties, and they were seized by the commandant of the station. Application was made at Washington, and, on a full hearing there had of the claimants, the seizure was sustained by Secretary Walker as legal, and the goods were ordered to be discharged on the payment of duties according to the tariff of 1842, and charges and expenses of warehouse rent, and interest on the duties from the time of seizure until the payment was made.

This decision was communicated to the parties. Subsequent to this period, there is no evidence showing any offer of payment of these duties, or any attempt to comply with the order of the Secretary of the Treasury; and the goods were ultimately proceeded against in the United States district of Galveston, and the goods were sold.

The case has been argued mainly on the point, whether cognizance could be taken of the Messrs. Uhdes' claim before this commission; they having been resident merchants at Matamoras, during the war between Great Britain and the United States. That point has been already fully considered and settled in the case of the Messrs. Laurent, and if it came within the principles of that decision, we should have no hesitation in its re-affirmance. But the proceedings here all arise after Matamoras had been captured, and it had become an American possession, with its ports opened to commerce, both to resident citizens and subjects of all other nations. The Messrs. Uhdes then, were not to be regarded as alien enemies, and might perhaps rightfully be con