Great Britain acknowledged her responsibility for the acts of McLeod, and the United States demanded satisfaction for the affront to the flag and the invasion of territory. Great Britain asserted the right to enter the territory on the ground of self-preservation, adducing evidence of an insurrection, and that The Caroline was aiding it.

The matter was satisfactorily adjusted between the Governments. In the meantime, however, McLeod, the British subject, had been arrested on American soil and suffered a long term of imprisonment under the authority of the State of New York.

Both Governments-the United States and Great Britain-asserted that imprisonment to have been unlawful, as the act of McLeod had been assumed by Great Britain as her act.

Subsequently, under the Mixed Commission of 1853,* Great Britain made reclamation for McLeod for damages.

It was held by the British umpire that it could not be brought before the commissioners as a private claim, because it grew out of a purely national question which had been adjusted between the two countries.

The case will serve for further illustration on the questions before these High Commissioners as to the claimants of original American allegiance domiciled on British soil. Aside from the adjustment of the question of national affront, suppose that a British subject domiciled in the United States, and unnaturalized there, while in the act of aiding the insurrection against Great Britain, had been damaged in his person or property rights by McLeod's invasion. Could it be seriously contended that he could have successfully made reclamation through the United States against Great Britain for his injuries suffered while acting in violation of his original allegiance to Great Britain?

See Report of Agent of the United States, 314.

Or suppose The Carolina had, as a matter of fact, turned out to be the property of such British subject legally domiciled in the United States, or of an American citizen legally domiciled in Great Britain. Could either have made reclamation against Great Britain through the United States?

On the distinction between questions of the kind arising between nations in respect of the inviolability of national territory and the emblem of the national dignity, and those in respect of the claims of individual citizens presented by one nation for personal or property injuries against another, it is broadly and well drawn by counsel in the case of McHugh and others against The United States, before the Mixed Commission under the Treaty of Washington (report of British agent, p. 567, Appendix No. 7, 52*), as follows:

The question before this Commission is not whether Great Britain has suffered grievance or insult at the hands of the United States in the case in which reclamation is sought. If it were so, it would be entirely immaterial whether the intestate, Sherman, were a British subject or no, he having been arrested on British soil. The injury to Great Britain was by the unlawful invasion of her territory and the taking thence by force of a person under the protection of her laws. Whether that person was an American citizen or British subject is of no importance. She has the same right of complaint against the United States for the unlawful and wrong. ful arrest of an American citizen upon her soil, and his removal by force from the protection of her laws, as she would have for the same treatment of a British subject.

But it surely can not be contended that, by reason of such injury to the sovereignty of Great Britain, Sherman, if in fact an American citizen, would have a standing before this tribunal to make reclamation under the treaty.

He would have to stand upon his character as a British subject and upon that only; and it would be only by virtue of such national character that he could make reclamation here.

This particular claim, as appears by the report, i. e.,

*Paliamentary Papers, North America, No. 2, 1874.

that of Mrs. Sherman, was unanimously disallowed by the Commissioners.

The very point was elaborately stated and decided by Baron Blanc, the umpire, in claims 94 and 95, Campbell and others v. Spain, under the Spanish and American Commission of February 12, 1871.

The ship Mary Lowell was under the American flag and on the high seas, duly documented as an American ship. The umpire finds distinctly that the violation of the flag was an offense against the sovereignty of the United States. The claim was presented by the United States, as claims are presented here, as one on account of the owner.

The umpire says:

The umpire can not be legitimately called upon to treat this as a case of the United States against Spain having for its direct object a suitable reparation for the offended dignity of their flag.

In such a case the regularity of the capture would constitute the principal question to be considered-the personal situation of the owners of the property becoming subordinate.

But no such case of the United States against Spain has been or could, in the opinion of the umpire, properly be presented to this tribunal.

At another place he says that it is

Irrelevant under the circumstances of this case to state how far, if at all, the acts of the Spanish forces were unauthorized by international law, and such as to create a claim on the part of the United States against Spain in behalf of the offended sovereignty of their flag.

The claim was therefore dismissed on the ground that although the seizure was outside of the jurisdiction of Spain, and on the high seas, yet, as it transpired that the owners were engaged in an enterprise unlawful as against Spain, the United States could not recover on their account under the Claims Convention.

CONCLUSION ON THE QUESTION OF AMERICAN CITIZENSHIP AND OWNERSHIP.

The specific claims eliminated.

The Cooper claims: The Grace, Dolphin, Anna Beck, and the Sayward.

The Alexander Frank claims: The Alfred Adams, Black Diamond, seized July 11, 1889, and the Lily. The Andrew J. Bechtel claims: The Carolena and Pathfinder.

The Daniel McLean claim: (The larger) Triumph. The Alexander McLean claims: The Onward and Favourite.

The foregoing ships were all seized in the years 1886, 1887, and 1889, and appear as follows in the schedule of British claims filed at Paris (pp. 1 to 60, inclusive), as referred to this Commission under the convention as owned and claimed for as follows:

The Cooper claims:

As to the Grace, Dolphin, Anna Beck, and Sayward, the entire ownership and entire claim for compensation for the seizure are in Thomas H. Cooper.

The Alexander Frank claims:

As to the Alfred Adams, Gutman, owner, his partner, the said Frank, being equally interested with Gutman in the results of the sealing voyage.

As to the Black Diamond, "registered" owner Morris Moss.

As to the Lily, "registered" owner Morris Moss. The Andrew J. Bechtel claims:

As to the Carolena, the entire ownership in Munsie. As to the Pathfinder, ownership half in the partnership, and a quarter each in the individual members of the firm of Carne & Munsie.

The Daniel McLean claim:

As to the larger Triumph, 21 shares in Edgar Crowe Baker; 22 shares in Daniel McLean, and 21 shares in one Gibson and Blackett.

The Alexander McLean claims:

As to the Onward, Charles Spring as sole owner and claimant.

As to the Favourite, Charles Spring as sole owner and claimant.

It appears by the testimony cited in this record that the United States, under the right reserved to them by the Paris Award and this Convention, in contradiction of the above schedule as presented at Paris, have shown actual ownership in American citizens, as of the time of seizure, and the actual claimants at the time of the Convention, as follows: The Alfred Adams, Lily, and the Black Diamond in Alexander Frank, an American citizen.

The Carolena and Pathfinder in whole or in part in A. J. Bechtel, an American citizen.

The Triumph, 22 shares out of 64 in all in Daniel McLean, claimed to be a political and civil citizen of the United States, and in any case a civil citizen domiciled in the United States.

The Onward and the Favourite one-half in Alexander McLean, an American citizen domiciled in the United States.

It may be stated in this connection as the rule in such cases, to which there have been no exceptions under prior commissions, and as a proposition which carries its own demonstration, that to entitle that nation to make reclamation for anyone as a person "in whose behalf Great Britain is entitled to claim compensation from the United States," the burden is upon that nation to establish at the very outset two things:

First, and before all else, that at the time of the Convention and of the presentation of the claim the claimant was under the protection of Great Britain as a citizen, with a legal domicile in the dominions of that nation or not in the United States;