difference of opinion before this Commission, and thus assumes the character of a claim presented in violation of this adjustment, and of the good faith the people of both countries have affixed to the acts of eminent negotiators now passed away.

MR. M'LEOD.

London, January 5, 1815.

The umpire reports that this case arose out of the burning and destruction of the American steam-boat "Caroline" at Schlosser, in the State of New York, on the Niagara River by an armed force from Canada in the year 1837, for which the British Government appears to have delayed formally answering the claims of The United States, until 1840, when the claimant was arrested by the authorities of the State of New York on a charge of murder and arson, as having been one of the party which destroyed the "Caroline." The British Government then assumed the responsibility of the act, as done by order of the Government authorities in Canada, and pleaded justification on the ground of urgent necessity.

From this time the case of the claimant became a political question between the two Governments; that of The United Sates used every means in their power to insure the safety of the claimant, and to procure his discharge, which was effected after considerable delay.

It appears by the diplomatic correspondence that the affair of the "Caroline," the death of Durfee, who was killed in the affray, and the arrest of the claimant, were all amicably and finally settled by the diplomatic agents of the two Governments in 1841 and 1842.

The question, in my judgment, having been so settled, ought not now to be brought before this Commission as a private claim. I therefore reject it.

JOSHUA BATES, Umpire.

MESSRS. UHDE.

DR. PHILLIMORE, for the claimants:

IT cannot be disputed that prima facie Mr. Uhde is entitled under the terms of the Convention-namely, “subjects of Her Britannic Majesty to have his claim entertained by the Commissioners."

I agree, however, that a Treaty or Convention is to be construed, and particular expressions in it interpreted, agreeably to the rules of international law.

I do not know upon what principle of law, or what authority among jurists, a restrictive interpretation could be affixed upon these words of the Convention, unless, indeed, (as I understand the American counsel to argue) they happened to have received such restrictive interpretation from a uniform current of decisions of acknowledged international authority.

I do not see that the authority of any jurist is referred to by Mr. Thomas, and the cases which he cites* are far from satisfying me that the Commissioners could legally adopt any such exceptional construction of the terms as is contended for. They are taken from the prize courts, from the privy council, from the common law, and from the equity courts.

A misunderstanding of the cases in the Prize Court appears to me to be at the root of Mr. Thomas's argument.

It is quite true that flagrante bello merchants residing in the enemy's country are considered, with reference to the belligerent right of maritime prize, as subjects of that country, without reference to the country of their origin or allegiance, and without much reference to the length of their residence.

Their domicile, for this particular purpose, is said to be

* This is designed as an answer to Mr. Thomas's argument in Laurent's case, page 136.

sufficient to found the right of the maritime captor; but it would be stretching the principle of those decisions to an extent which was never intended, to say that they were not British subjects in the sense of this Convention; for instance, and the example alone is sufficient to answer the whole question, is there any jurist who would say that an injury offered to a British merchant residing at Mexico would not, all other means of redress being exhausted, justify the issue of reprisals on the part of Great Britain?

The case of McConnell vs. Hector, decided in 1802 (3 Bos. and Puller, p. 314), that persons who had incorporated themselves with the commerce of the enemy, flagrante bello, may not sue in this country.

The case of Albretch vs. Susman (2d Vesey and Beames, p. 326) decided that the quasi diplomatic character of Consuls made no difference as to the law on this point.

The Countess of Conway's case (2d Knapp's Privy Council Reports, p. 367), when examined, appears to be adverse to Mr. Thomas's argument, for Mr. Baron Parke decided, in that case, that the party must show " that she was a British subject in some sense," and that "one of these two things must be shown, either that the countess was a naturalborn British subject, or that having been born abroad she was domiciled in England, and in that character entitled to the protection of a British subject at the time of the confiscation." Now, Mr. Uhde is a natural-born subject of Great Britain, and his native character, by a particular regulation of the Mexican State, is most carefully preserved.

I am of opinion that the principles of international law do not warrant the restrictive interpretation sought to be put upon the plain words of the Convention, and that Mr. Uhde is not disentitled to have his claim entertained by the Commissioners.

ROBERT PHILLIMORE.

DOCTORS' COMMONS, October 14, 1854.

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