REPORT.

To the Honorable Hamilton Fish, Secretary of State:

The undersigned, agent of the United States before the commission upon the claims of subjects of Her Britannic Majesty against the United States, and of citizens of the United States against Great Britain, established by the twelfth article of the treaty between the United States and Great Britain of 8th May, 1871, respectfully submits the following report of the proceedings and results of that commission:

Articles 12 to 17, inclusive, of the treaty above referred to, contain the provisions establishing the commission and regulating its jurisdiction, powers, and methods of proceeding. Those articles are found in the appendix to this report, A.

The Honorable James Somerville Frazer, of the State of Indiana, formerly a justice of the supreme court of that State, was named as commissioner by the President of the United States.

The Right Honorable Russell Gurney, member of Parliament, member of Her Majesty's privy council, and recorder of London, was named as commissioner by Her Britannic Majesty.

Count Louis Corti, envoy extraordinary and minister plenipotentiary to the United States of His Majesty the King of Italy, was named as the third commissioner by the President of the United States and Her Britannic Majesty conjointly.

Robert Safford Hale, esq., of the State of New York, was named by the President of the United States agent of the United States to attend the commissioners, to present and support claims presented on behalf of his Government, to answer claims made upon it, and to represent it generally in all matters connected with the investigation and decision of such claims, pursuant to the provisions of the thirteenth article of the treaty. Mr. Hale acted also as counsel for the United States under the same article.

Henry Howard, esq.,one of Her Britannic Majesty's secretaries of legation at Washington, was named by Her Majesty's government as the agent of that government for the like purposes, pursuant to the same article.

James Mandeville Carlisle, esq., of the city of Washington, U. S. A., was employed as the counsel of Her Britannic Majesty's government before the commission.

The commissioners and agents and counsel above named continued in the execution of their respective duties to the close of the commis

The commission first met and organized at Washington on the 26th day of September, 1871, each of the commissioners making and subscribing the "solemn declaration " provided by the twelfth article of the treaty.

Count Corti was requested, by vote of the commission, to preside during its deliberations, and continued to act as presiding commissioner during the entire existence of the commission.

Thomas Campbell Cox, esq., of the District of Columbia, U. S. A., was duly appointed by the commission as its secretary, and continued to act as such to the close of the commission.

The commission, at an early session, adopted rules for the course of proceedings before it, including the manner of presentation, prosecution, and defense of claims, the taking of testimony, and the printing and presentation of the evidence and arguments, a copy of which rules, with such slight modifications as were from time to time afterward adopted, is found in the appendix, B.

Within the time limited by the treaty, nineteen claims were presented on the part of citizens of the United States against Great Britain, aggregating, exclusive of interest, a little less than $1,000,000. These claims, as will be seen by the detailed report hereinafter given, were all disallowed by the commission.

Within the same time were presented four hundred and seventy-eight claims of subjects of Her Britannic Majesty against the United States, aggregating, exclusive of interest, about $60,000,000, and, including interest for the average time allowed by the commission, about $96,000,000. Of these claims, one was dismissed by the commission on account of indecorous and improper language used in the memorial, without prejudice to the filing of a new memorial, which was subsequently filed; thirty were dismissed as not within the jurisdiction of the commission; two hundred and fifty-eight were disallowed on the merits; eight were withdrawn by Her Britannic Majesty's agent, by leave of the commission; and in one hundred and eighty-one, awards were made in favor of the claimants respectively against the United States, such awards aggregating $1,929,819.

The entire amount of the awards against the United States, including interest, allowed by the commission was, therefore, as will be seen, a trifle over two per cent. of the entire claims presented to the commission, on behalf of British subjects, against the United States, including interest.

Of the claims of citizens of the United States against Great Britain, twelve grew out of the Saint Albans raid, so called, and were for acts of plunder alleged to have been committed by confederate soldiers in the town of Saint Albans, Vt., in October, 1864; one was for a like raid of confederate soldiers alleged to have been committed upon Lake Erie in September, 1864, and for injuries to the American steamers Philo Parsons and Island Queen, and the property of American citizens on board said steamers; four were for damages by reason of the al

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 claimant from the British government 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, naval, 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 vessels, 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 which 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, giving 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 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 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 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. 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 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 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 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 citizenship 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