Mr. Fish appears to have contemplated the Analysis of Claims. possibility of a settlement of the claims now in question by the Joint High Commission, directly and conclusively, as between the two governments. In his acceptance of Sir Edward Thornton's proposal he suggested that the high commissioners should "consider only such claims" as might be "presented by the governments of the respective claimants at an early day, to be agreed upon by the commissioners," and in the confidential memorandum with which the American high commissioners were furnished there was an exposition of the principles on which the claims should be examined. In this memorandum the claims of British subjects were discussed under three heads

1

1. The injuries inflicted by the Confederate authorities or by private citizens of the Confederacy.

In respect of this class of claims the general proposition was laid down "that no government is responsible for injuries done to the inhabitants of the country, whether citizens or foreigners, by rebels or by alien enemies exercising in the particular locality or for the time being superior force against such government."3

2. Claims growing out of captures by United States cruisers. On the subject of these claims a passage from Lord Mansfield's memoir on the Silesian loan was cited, in which the ground is maintained that "all a foreigner can desire is that justice should be impartially administered to him, as it is to the subjects of that prince in whose courts the matter is tried." 3. Claims for arbitrary arrests, compulsory military service, and other alleged violations of the personal rights of British subjects.

This subject was, said the memorandum, treated with such general candor and fairness by Prof. Mountague Bernard, in

1 For. Rel. 1873, part 3, 268.

2 For. Rel. 1873, part 3, 362.

3 On this proposition the following citations were made: Lord Stanley, June 17, 1870, Hansard, 3d series, III. 1306; Rutherford's Institutes, 509; Vattel, Book 2, ch. 6, sec. 73; Phillimore Int. Law, I. sec. 218; Calvo, Derecho Internacional, I. 387; Torres Caicedo, Union Latino-Americano, 343, 348 (dispatches of Prince Schwartzenberg to Baron Hotter, April 14, 1850, and Count Nesselrode to Baron Brunnow, May 2, 1850); Mauran v. Insurance Co., 6 Wallace, 14; Opinions of At. Gen. XII. 21; Mr. Marcy to the Count de Sartiges, Sen. Ex. Doc. 9, 35 Cong, 1 sess.

Chapter XVI. of his Neutrality of Great Britain during the American Civil War, and by Mr. Abbott, in his appendix to the report of the royal commission on naturalization and allegiance, that it seemed unnecessary to do more than refer to those publications. Attention was, however, called "to some of the authorities which established the liability of persons domiciled for commercial purposes in a belligerent region to be treated as indistinguished from the active enemies in the midst of whom they are found."1

The diplomatic correspondence in regard to these various classes of claims during the progress of the civil war may be consulted chiefly in the series entitled "Diplomatic Correspondence," published by the Government of the United States, beginning with the year 1861. In the publication for the year 18642 there is a reprint of a British blue book relating to the "Claims of British subjects against the United States Government from the commencement of the civil war to the 30th of March 1864." In regard to the contents of this blue book, the confidential memorandum given to the American high commissioners made the following observations:

"An analysis of that document shows the following results: "Three hundred and twenty-one cases of the 450 therein enumerated have been disposed of.

"Of these, 43 were cases in which the British Government refused to interfere, on the advice of the law officers of the Crown.

"One hundred and sixty-seven cases have been condemned by the prize courts of the United States. With the exception of one case, that of the Springbok, the Department of State is not aware of a disposition on the part of the British Government to dissent to any final adjudication of the Supreme Court of the United States in a prize case. The Supreme Court has in several cases reversed condemnations made by the inferior tribunals of prizes, in some of which Congress has made appropriations for the indemnification of the owners of the property captured.

"In most of the cases where it is stated that vessels have been condemned, but that appeals are pending, the condemnations by the courts below have been sustained.

Kent's Comm. I. *75; Wildman, Int. Law, II. 49, 78; Phillimore, Int. Law, III. 128; Calvo, Derecho Int. I. 292; The Pizarro, 2 Wheat. 246; Laurent's Case, report of commission under treaty of 1853, 120; Earl Granville to Lord Lyons, January 11, 1871, Blue Book No. 4 for 1871, Franco-German War.

2 Part 1, 736.

"In 63 cases it appears that property taken by the United States has been restored, and that persons imprisoned, or said to have been illegally enlisted, have been released.”1

Such was the apparent state of the British Proceedings of the claims at the time of the meeting of the Joint Joint High Com- High Commission. The proceedings of that body on the subject are sufficiently detailed in

mission.

the protocols of its conferences, as follows:

"At the conference on the 4th of March it was agreed to consider the subjects referred to the Joint High Commission by the respective governments in the order in which they appeared in the correspondence between Sir Edward Thornton and Mr. Fish, and to defer the consideration of the adjustment of all other claims, both of British subjests and citizens of the United States, arising out of acts committed during the recent civil war in this country,' as described by Sir Edward Thornton in his letter of February 1, until the subjects referred to in the previous letters should have been disposed of.

“The American commissioners said that Claims for Slaves. they supposed that they were right in their opinion that British laws prohibit British subjects from owning slaves; they therefore inquired whether any claims for slaves, or for alleged property or interest in slaves. can or will be presented by the British Government, or in behalf of any British subject, under the treaty now being negotiated, if there be in the treaty no express words excluding such claims.

"The British commissioners replied that by the law of England British subjects had long been prohibited from purchasing or dealing in slaves, not only within the dominions of the British Crown but in any foreign country; and that they had no hesitation in saying that no claim on behalf of any British subject, for slaves or for any property or interest in slaves, would be presented by the British Government.

Fenian Raids.

"Referring to the paragraph in Sir Edward Thornton's letter of January 26, relating to the mode of settling the different questions which have arisen out of the Fisheries, as well as all those which affect the relations of the United States towards Her Majesty's Possessions in North America,' the British commissioners proposed that the Joint High Commission should consider the claims for injuries which the people of Canada had suffered from what were known as the Fenian raids.

"The American commissioners objected to this, and it was agreed that the subject might be brought up again by the British commissioners in connection with the subject referred to by Sir Edward Thornton in his letter of February 1.

1 For. Rel. 1873, part 3, 367.

"At the conference on the 14th of April the Agreement upon Joint High Commission took into consideration the subjects mentioned by Sir Edward Thorn

Articles.

ton in that letter.

"The British commissioners proposed that a commission for the consideration of these claims should be appointed, and that the convention of 1853 should be followed as a precedent. This was agreed to, except that it was settled that there should be a third commissioner instead of an Umpire.

"At the conference on the 15th of April the Treaty Articles XII. to XVII. were agreed to.

"At the conference on the 26th of April the Exclusion of Fenian British commissioners again brought before Raid Claims. the Joint High Commission the claims of the people of Canada for injuries suffered from the Fenian raids. They said that they were instructed to present these claims and to state that they were regarded by Her Majesty's Government as coming within the class of subjects indicated by Sir Edward Thornton in his letter of January 26, as subjects for the consideration of the Joint High Commission.

"The American commissioners replied that they were instructed to say that the Government of the United States did not regard these claims as coming within the class of subjects indicated in that letter as subjects for the consideration of the Joint High Commission, and that they were without any authority from their government to consider them. They therefore declined to do so.

"The British commissioners stated that, as the subject was understood not to be within the scope of the instructions of the American commissioners, they must refer to their government for further instructions upon it.

"At the conference on the 3d of May the British commissioners stated that they were instructed by their government to express their regret that the American commissioners were without authority to deal with the question of the Fenian raids, and they inquired whether that was still the case.

"The American commissioners replied that they could see no reason to vary the reply formerly given to this proposal; that in their view the subject was not embraced in the scope of the correspondence between Sir Edward Thornton and Mr. Fish under either of the letters of the former; and that they did not feel justified in entering upon the consideration of any class of claims not contemplated at the time of the creation of the present commission, and that the claims now referred to did not commend themselves to their favor.

"The British high commissioners said that under these circumstances they would not urge further that the settlement of these claims should be included in the present treaty, and that they had the less difficulty in doing so, as a portion of the claims were of a constructive and inferential character."

1 For. Rel. 1873, part 3, 398.

By the articles which were agreed to on the Articles XII.-XVII., 15th of April, and which were duly inserted as Treaty of Wash- Articles XII. to XVII., inclusive, in the treaty ington. concluded May 8, 1871, the high contracting parties stipulated that "all claims on the part of corporations, companies, or private individuals, citizens of the United States, upon the Government of Her Britannic Majesty, arising out of acts committed against the persons or property of citizens of the United States during the period between the 13th of April 1861, and the 9th of April 1865, inclusive," not being claims growing out of the acts of the vessels that gave rise to the claims generically known as the Alabama claims, "and all claims with the like exception on the part of corporations, companies, or private individuals, subjects of Her Britannic Majesty, upon the Government of the United States, arising out of acts committed against the persons or property of subjects of Her Britannic Majesty during the same period, which may have been presented to either Government for its interposition with the ether, and which yet remain unsettled, as well as any other such claims which may be presented within the time specified in Article XIV. of this Treaty, shall be referred to three Commissioners, to be appointed in the following manner-that is to say: One commissioner shall be named by the President of the United States, one by Her Britannic Majesty, and a third by the President of the United States and Her Britannic Majesty conjointly; and in case the third commissioner shall not have been so named within a period of three months from the date of the exchange of the ratifications of this Treaty, then the third commissioner shall be named by the Representative at Washington of His Majesty the King of Spain."

Limitation as to Presentation of Claims.

Article XIV., which is referred to for the purpose of defining the time allowed for the presentation of claims, is expressed in substantially the same terms as Article III. of the convention of February 8, 1853. It provides that "every claim shall be presented to the commissioners within six months from the day of their first meeting, unless in any case where reasons for delay shall be established to the satisfaction of the commissioners, and then, and in any such case, the period for presenting the claim may be extended by them to any time not exceeding three months longer;" and it further empowers the commissioners in each case to determine whether a claim has been duly laid before them.