towards the east an occasion should arise which would involve that Empire in a war with China. All that can be said of the importance of cotton, as the most valuable product of the Southern States of the Union, can be as truly affirmed of tea in China, and we may safely assume that the control which the Government of the celestial Empire would exercise over the production of this article would be infinitely more absolute, and would more perfectly identify it with the resources of that Government, than any acts of the Confederate Congress or executive contracts could possibly have done in the case of cotton. In such a state of things would the Emperor of all the Russias feel authorized to destroy or appropriate all the teas which he should find stored in the warehouses of foreign merchants in China? How would the rest of the world receive such pretensions ? Would the British and American Governments tolerate for one moment the plunder of their merchants resident in China upon such ideas as are now put forth in the name of the United States ? And yet it is difficult to distinguish this supposed case from the wholesale destruction or appropriation of cotton in the possession of British subjects for which reclamation is made in these cases.

We have hitherto been considering the general question involved in these cases upon the tacit concession, for the sake of the argument, that the persons and property of British subjects in the United States found within the States in rebellion were liable to be dealt with in the same manner, and to the same extent as the persons and property of the citizens and inhabitants of those States. But this can by no means be conceded.

In the present condition of the civilized and commercial nations of the world, persons and property so situated are recognized as having a distinct status. The right and duty of the State to which they belong to protect them and to demand indemnity for wrongs committed against them is universally acknowledged. At the appearance of the slightest speck of war in the horizon of any nation, a naval force is dispatched by every maritime and commercial power to watch over and protect the interests of those who appear to be thus exposed to danger. At this very time, while the Commission is hearing discussions on this subject, the disturbed condition of Spain has brought and is bringing to her waters and ports the war-ships of other nations, and amongst them those of the United States, not for any idle exhibition of power, but for the substantial discharge of the recognized duty to protect the persons and property of foreign citizens and subjects domiciled there upon the faith of commercial Treaties.

When the American civil war broke out, being the consequence of purely domestic dissensions, large numbers of British subjects had settled in all parts of the Union, not only attracted by the similarity in language, institutions, and laws, but upon the faith of existing Treaties of Amity and Commerce equally important and interesting to both countries. The Queen's Proclamation of neutrality carefully warned them from meddling in the internecinę

strife, or confounding themselves in any degree with either belligerent. They were admonished still to remember that they were British subjects, and owed paramount allegiance to their own sovereign.

When the war was over and the supreme authority of the United States was firmly re-established, Great Britain and the United States, by their respective Plenipotentiaries ad hoc, met at Washington in a friendly spirit to determine upon a mode of solution of all differences between the two Governments.

To these Plenipotentiaries were referred the questions as to the fisheries, the "Alabama" claims, and "all other claims, both of British subjects, and citizens of the United States, arising out of acts committed during the recent civil war." (Sir Edward Thornton to Mr. Fish, p. 33 of Senate document.)

By the Treaty of Washington provision was made for the settlement of all these questions. So far as the functions of this Commission are concerned, the XIIth Article of that Treaty provides for the adjudication by them of the claims of British subjects and American citizens arising out of acts committed against their persons and property during the recent civil war.

When this Article was proposed, if the High Commissioners on the part of the United States had entertained the views of the public law which the learned Council is now attempting to enforce they would have had an obvious and ready answer to the proposition. They would have said at once, 1st, as to supposed acts against the persons and property of Her Majesty's subjects during the period of the civil war, these were belligerent acts in the enemy's country, and the inhabitants of that country were all of them, by the public law, enemies of the United States; they can only be recognized by that law in that character, and not as British subjects; and, 2ndly, as to any supposed severity, rigour, excess, or injustice in those acts, the United States must alone judge of that. "The measure of such destruction or appropriation of property, and of such pillaging and ravaging, must always be left solely to the discretion of the invading belligerent himself. He is of necessity the sole judge as to the requirements of his military position, and of the necessity or propriety of the destruction and appropriation of property. On these questions nations acknowledge no common judge; each forms her own judgment of the conduct she is to pursue in fulfilling her duties." (Brief of United States, pp. 6 and 7.)

If these propositions are correct, and the learned Counsel seems to regard them as undeniable and elementary, here must have been an end to the negotiation on the subject. But they do not seem to have entered into the mind of any Commissioner on either side, or into that of the President, or of the British Secretary for Foreign Affairs, who proposed the negotiation. On the contrary, both Governments appear to have considered it as undeniable and elementary that a common judge might and must necessarily decide between the two nations in the premises: and accordingly the Treaty constituted this Tribunal with full power to consider

and authoritatively to adjudicate precisely such questions. No rule of judgment is prescribed for it except the principles of "justice and equity," upon which simple foundation, indeed, rests the whole body of what is called the law of nations. Nor is it easy to comprehend how an international tribunal like the present can adjudge the conduct of a belligerent to be authorized by strict right under the law of nations, if it should at the same time hold such conduct to be repugnant to the universal ideas of justice, humanity, and civilization.

Her Majesty's Counsel deems it his duty to entreat the earnest attention of the Commissioners to the principles which their decision in these cases will establish. This Tribunal is, as we have said before, a common judge appointed by two great nations. Their powers are unlimited, save by the principles of justice and equity, and there can be no doubt as to the influence which the use of those powers will have upon the law of nations.

The opportunity now presents itself to this Tribunal articulately and unequivocally to express the opinion of all civilized nations, and to vindicate the spirit of modern times by condemning acts which, though perhaps in some degree authorized by that natural law upheld by Bynkershoek and Wolf, are discountenanced and forbidden by the justice and equity upon which the law of nations is founded; or, on the other hand, turning to the harsh theories of the older publicists, and the happily few instances of a corresponding practice in modern times, for justification, to decide that the law of nations which to-day governs the civilized world tolerates any excesses in time of war which the vindictive policy of a Government may authorize, or the unrestrained brutality of its soldiery may dictate.

It is but a short time since the Tribunal at Geneva has pronounced its judgment on the duties of a neutral nation towards belligerents, which, from the time of its utterance, has set its impress upon the public law. These duties of neutrality as expressed by the Treaty of Washington, and defined and established by the decision of the arbitrators, are undoubtedly more difficult to fulfil, and stricter in their requirements than those more general duties enjoined in the works of the publicists, yet the advanced state of civilization, the ever increasing facilities of communication and transportation at the command of Governments, and the tendency of modern times to do away with fictions and establish substantial and practical obligations and duties between States, manifestly support this decision.

But besides the duties of a neutral towards belligerents, equally important are the duties of belligerents towards the subjects and citizens of the neutral State, and of especial importance are these duties to the High Contracting Parties to the Treaty of Washington, since their citizens and subjects are scattered throughout the habitable globe, and their policy and geographical situation must often place each in the position of a neutral.

Suppose the case of a war between some European State and one of the Eastern nations, whose ideas of right are measured by

power, in which "an enormous offence against the law of nations " on the part of the latter should bring upon it the punishment of its adversary driven beyond the bounds of civilized warfare; and that in this punishment no discrimination should be made between the persons and property of resident neutrals and those of the offending enemy: the Governments of Great Britain and the United States. whose pride it is to exact justice for themselves and for their subjects and citizens, would be powerless to demand reparation should this Commission decide that, in a war between civilized nations, or two sections of the same civilized nation, there is no appeal from the decision of the belligerent, who offends against the whole spirit of modern civilization and of the modern law of nations, even to a Tribunal appointed by the nations between whom the question arises, and sworn to decide all claims brought before it, upon the principles of justice and equity.

Had the burning of Columbia been accompanied by a general massacre of the inhabitants, which the "right" given by the law of nature would have authorized, could this Commission have refrained from condemning the act and holding the United States responsible for the crime? It is not possible. And yet the "right" to do this has as firm a foundation in the law of nature as it ever had, and this right is only denied by the spirit of civilization speaking in the public law. It is natural that the attention of the world and the efforts of the writers on international law should have been turned first to the abolition of a principle which countenanced wholesale murder, and that this being accomplished, the attack upon wholesale robbery and destruction should be begun. Next to the rights of personal liberty and personal safety, those of property are the most important, and at this day it is not unsafe to say that in the abstract, the one class of rights is equally so with the other.

The "right" to commit both these crimes of which we have been speaking rests upon the same foundation, and the writings of the publicists and the spirit of the age forbid and condemn the one as well as the other. No one at this day would advocate the former right, which has been condemned by public opinion without the aid of a "common judge," and if the latter right has still any vitality left, in spite of the condemnation of public opinion, it is the high privilege and imperative duty of this Tribunal to crush it out, and by so doing to deserve the commendation and gratitude of the world, and set its impress upon the law of nations for all time to come.

(Signed)

J. M. CARLISLE,
Her Britannic Majesty's Counsel.

Newport, R. I., August 15, 1873.

APPENDIX No. 41.

"Columbia Cases."

No. 249.-Sarah Watts v. The United States.

BRIEF FOR CLAIMANTS.

As to the Responsibility of the United States for the Destruction of Private Property by the Conflagration in Columbia, South Carolina, on the night of the 17th February, 1865.

It is advisable, for a correct understanding of references and points raised in this brief, that a short history should be given of the events immediately preceding the conflagration in Columbia on the night of the 17th February, 1865. We shall endeavour, in so doing, to state only such particulars as, we believe, are admitted by all parties. The Federal army, upon its arrival on the banks of the Congaree river, found themselves below Columbia, marched up the river, threw a few shells into Columbia, which was on the further bank, while passing, and did not attempt to cross until they were above the junction of the Saluda and Broad rivers, which form the Congaree, and crossed these over to the Columbia side, a few miles above the city. The first troops that crossed were Stone's brigade, who went over in boats, and who first entered the citythe mayor surrendering it peaceably to Colonel Stone outside of the city limits. Generals Sherman and Howard, as soon as a bridge. had been finished across the Broad river, crossed in advance of the 15th corps, and so entered Columbia.

The troops marched through Richardson (or Main) street to the Capitol. Stone's brigade entered the city about 9 or 10 o'clock in the morning. General Sherman and the 15th corps entered between 11 and 12.

See deposition General Sherman, pp. 79, 80.

What Colonel Stone or his officers or men saw upon their entry on Main-street, the United States have not informed us; but Generals Sherman, Howard, and the officers of the 15th corps, who all entered subsequently, have much to say on the subject of burning cotton. Portions of the 15th corps, through the day of the 17th and the night following it, were stationed ostensibly as a guard in Columbia, and other portions of the said corps were allowed to wander at liberty through the city. When night came on fires broke out in the city, the result of which was the destruction of property for which claim is now brought. Who set fire to the cotton referred to, and whether the fire in the cotton seen by Sherman in the morning was the cause of the various fires which broke out in every direction through Columbia at night, is a subject for discussion. On account of General Sherman's great military reputation, to differ with him in regard to matters of fact may be audacity, even with overwhelming evidence as a justification.