of the prescribed rule of conduct from the present treaty was significant. That under the present treaty the judgments of the American prize tribunals were to be tested in each case by this commission according to the principles of "justice and equity" only. That "whether the law of nations justifies those decisions or not, unless they are also justified in the conscientious judgment of the commissioners by justice and equity, the compensation which they fail to give must be awarded to the parties." That "the inquiry is not limited to the question whether the law of nations entitled the claimants to compensation, but extends beyond that narrow range, and its broad scope is whether the parties are equitably entitled, under all the circumstances surrounding the cases, to receive indemnification for their losses." That it was the intention of the framers of the treaty to confer upon this commission “a more extensive jurisdiction, and greater power to do justice than was exercisable by the prize courts of the United States deciding according to the law of nations." That the technical rule of the prize courts, that "probable cause" not merely excuses, but in some cases justifies, a capture, is a hard rule, "admitted to be opposed to the fundamental ideas of justice and equity," and "only to be justified upon grounds which justify the extreme severity of the other operations of war." That therefore this commission was not bound to refuse damages in cases of restitution to the claimants, even "if they should think that the appellate prize court was warranted in its decision that there existed, in the sense of the prize law, probable cause of capture."

That if, however, it should be held that the only inquiry to be instituted by the commission in such cases is, "whether there were such reasonablegrounds of suspicion as constitute what is technically called probable cause of capture," the commissioners should nevertheless adjudicate according to their own judgment of the facts and the law constituting the foundation of probable cause, "unembarrassed by the special and technical rules of the prize code." That though the commission is not therefore bound by the principles held by the prize courts in their adjudications, but has a larger and more equitable jurisdiction, yet the decisions of prize courts of the highest authority have established the duty of condemning captors in costs and damages where they have unjustly interfered with the operation of lawful neutral commerce. In this connection the counsel cited the cases of the Elizabeth, 1 Acton, 10; the Ostsee, 9 Moore's P. C. R., 150; the Gerasimo, 11 id., SS; the Newport, id, 187. In answer to these propositions in the general argument the counsel for the United States fully admitted the propositions as held and recog nized by the judicial, executive, and legislative authorities of the United States, that the bona fide trade with Matamoras was a legitimate trade; that the United States could not lawfully blockade the mouth of the Rio Grande or the port of Matamoras, or any other Mexican port, nor interfere with the legitimate ingress or egress of neutral vessels engaged in trade with Matamoras, or with the right of such vessels to lie

at anchor in the roadstead at the mouth of the Rio Grande while engaged in the bona-fide discharge or receiving of neutral cargoes for or from that port.

He denied that in practice the United States had violated these principles or undertaken to assert rights inconsistent with them, but maintained that, on the contrary, the State Department of the United States, in its diplomatic correspondence, had recognized their validity; insisting only that the question of the application of these principles to the facts of each particular case was to be determined by the regular prize tribunals, which might be safely trusted to do entire justice in every

case.

That the decisions of those courts in the various cases referred to by the counsel for the claimant, fully recognized those principles and applied them to the facts appearing in each case; and that in the disposition not only of those cases, but generally of all the prize cases arising during the war, those courts had carefully adhered to the principles of international law as recognized in the prize courts of all civilized countries, and had extended to neutral vessels and cargoes a degree of protection, to say the least, quite as ample and complete as that afforded by the prize courts of Great Britain, under the learned and widely known and recognized decisions of Sir William Scott and his successors in those courts.

He admitted fully the jurisdiction of the commission, and their power and duty under the treaty to review the final judgments of the prize courts of ultimate resort of the respective nations, as not conclusive upon the respective governments, which might intervene on behalf of their subjects against the judgments of those courts, such jurisdiction having been long since fully established by the direct decision of the commission upon that question, and not having since been disputed.

s to the rules and principles by which the commission were to be governed in their decisions upon these cases, he maintained that the rule prescribed by the treaty, that the commissioners should "impartially and carefully examine and decide to the best of their judgment, and according to justice and equity," had in no respect abolished or changed those well-settled principles, in accordance with which the tribunals of the civilized world have been accustomed to decide upon the validity of captures and the respective rights of belligerents and neutrals in relation to them. That "justice and equity" were not to be attained by a disregard of judicial precedents and established principles of judicial proceeding. That to adopt the doctrine propounded by the counsel for the claimant was to substitute the mere fancy or caprice of a tribunal acting without guidance or authority, for those sound rules established and followed by judicial tribunals, in the light of the learning and experience of ages, for the very furtherance of "justice and equity." That true "justice and equity" are recognized by all judicial tribunals, municipal or international, as attainable only by well-defined and settled rules and princi

ples of general application. That if this idea is lost sight of, substantial justice as well as substantial equity is at an end; and the rights of parties are committed to the absolute and uncontrolled will and caprice of the judicial officer, instead of the protection of the law.

That while, therefore, the right of the commission to sit in judgment upon the validity and correctness of the judgments of the prize courts of the United States upon these cases is not now questioned; such validity and correctness are to be determined only in accordance with the settled principles of prize law, as recognized by the two countries.

That in reviewing the judgments of the highest appellate courts of either of the two countries, high contracting parties to the treaty, the high reputation of those courts respectively, the weight uniformly given to the decisions of each by the other, and the rules of international comity and mutual respect, dictate that such judgments are not to be rashly or hastily overruled or reversed; but only on a clear showing of a violation of the rules of international law in re minime dubia. That the question to be decided in these cases is whether injustice has been done to the subjects of Her Britannic Majesty by the judicial tribunals of the United States; and that the commission certainly cannot find that such injustice has been done, unless they find that the well-settled principles of international law have been violated by those tribunals.

In answer to the proposition of the claimant's counsel, that the rule of the prize courts disallowing damages to the claimant where "probable cause" appears for the capture, is one of extreme severity as against the neutral trader, " opposed to the fundamental ideas of justice and equity," and "a hard rule, admitted to be such by all writers on the law of nations," the counsel for the United States cited the language of Dr. Lushington, in the case of the Leucade, (2 Spinks, 236,) as follows:

His

Lord Stowell administered the prize law on great and comprehensive principles. object was that, on the whole, equal justice should be done to the rights of the belligerent and the just claims of neutral nations; but he did not seek in each particular case to do the most perfect justice. Many passages in his judgments might be cited to show this; whereby he declared that, though there might be hardships in particular cases, both to captors and especially neutrals, yet, on the whole, the balance was in favor of the neutral rather than against him. Lord Stowell used so say, though blockade was a hardship on a neutral, and the right of search was a hardship on a neutral, yet it was to be recollected the whole trade was always open to them-the carrying trade in time of war. He used always to say, and rely greatly on that rule of law, that, in the first instance, the case should be heard on the evidence of the claimants themselves, namely, the ship's papers and depositions.

In the case of the Diligentia, (1 Dods., 404,) where the captors complained of what Lord Stowell was about to do, Lord Stowell made the same answer; he told them, though they might complain in particular instances, yet he must adhere to the general principle, though the consequences might press hard upon them. Now, no person more readily acknowledged the truth of the principle, that a claimant should be indemnified for a capture made without probable cause, than Lord Stowell; no one more powerfully manifested it; but that will necessarily presuppose that the court is in possession of the truth.

It is equally contrary to common justice that a captor should be mulcted in costs and damages where he has faithfully performed his duty, and had, in truth, adequate cause for the seizure. Yet this cause of seizure might not appear on the face of the depositions and ship's papers. So it might be in blockade cases, and in numerous others which might be stated.

In the case of the Sir William Peel the following additional points were made on behalf of the United States:

1. That the vessel and cargo not having been charged with costs under the final decree of the Supreme Court, the only question before the commission was as to the right of the owners to damages; that the claimants were in no position to make such claim before the commission; that any right to damages in the prize courts was barred by the first decree of the district court of 6th June, 1864, which adjudged reasonable cause of seizure, and that from this decree or from any part of it the claimants had never appealed; that the "question as to costs and expenses" reserved by that decree was plainly the question only whether costs and expenses should be allowed against the claimants, their right to claim costs and expenses, against the captors being barred by the certificate of "reasonable cause of seizure" contained in the same decree; that the claimants, having failed to appeal from so much of this decree as certified reasonable cause of seizure, must be considered, in the language of the letter of Sir William Scott and Dr. Nicholl to Mr Jay, (3 Phillimore, 554,) to have "acknowledged the justice of the sentence in that respect," and that within the rule of practice already settled by the commission the claimants, baving neither appealed nor rendered any reason for not having appealed, their claim must be disallowed; that the only effect of the second decree of the district court of 3d June, 1865, from which the claimants did appeal, was to charge the claimants with the costs and charges of the captors, and that on their appeal from this decree they had had full relief by the judgment of the Supreme Court; that it had never been possible for the Supreme Court to award damages in favor of the claimant had they been so disposed, such damages being barred by the certificate of probable cause in the first decree of 6th June, 1864, from which the claimants had not appealed; that the claimants had therefore no standing before the commission to claim damages.

2. That the proofs before the prize court fully sustained the finding of that court of probable cause; and that the depositions of Clark and Haggard, taken in the district court, but rejected by that court on the purely artificial and technical rule that such evidence must come in the first instance from the vessel herself and those on board of her, were here competent evidence under the terms of the treaty, and entitled to be weighed by the commission without regard to such artificial rule of exclusion; and that those depositions not only greatly strengthened the case made before the prize court as one of probable cause, but in connection with the other proofs would have amply warranted a decree of condemnation.

3. That the fact that the vessel was taken in neutral waters, in no respect changed the case as to the respective rights of captors and claimants. That in such case it was only the neutral power whose waters had been violated that had cause of complaint; and such power only could be heard to raise the question of violation of her waters. That if the United States by this capture had violated any rights of Mexico, that was a question to be settled between the United States and Mexico. That so far as the questions between these claimants and the United States were concerned, the case stood in all respects the same as if the vessel had been captured upon the high seas.

In support of this point the counsel of the United States cited the Purissima Concepcion, 6 Rob., 45; the Etrusco, 3 id., 31; the Twee Gebroeders, id., 162; the Eliza Anne, 1 Dodson, 244; the Diligentia, id., 412; the Anne, 3 Wheat., 447; 2 Twiss, 448; the Anna, 5 Rob., 373; the Vrow Anna Catherina, id., 15.

4. That by abandonment, acceptance of the same, and payment as for a total loss, the entire right to any and all reclamation for damages or for the proceeds of the vessel passed from the owners of the ship and cargo to the insurers, and this irrespective of the question of the illegality of the contract of insurance, the contract being an executed one by the voluntary act of the parties. That these insurers were not to be taken as parties to the memorial, which was that of Mr. Gerard. That Gerard himself had derived by his assignment from the owners no title, their claims having vested in the insurers. And that if the assignment to him would otherwise have conveyed any interest, it was void as a champertous contract by which Gerard, an attorney, without any previous interest in the transaction, had purchased the claim as a matter of speculation and for the purpose of its prosecution against the United States. That by the law of England, the purchase of a chose in action by an attorney for the purpose of prosecution was illegal; that the same rule prevailed in most, if not all, of the United States; and that in practice it ought to prevail in international law. That such champertous purchases of claims, void by the common law of both countries, should not be recognized as lawful transactions, or be permitted as the basis of claims to be prosecuted by one of those governments against the other.

5. That the contracts of insurance by these insurers with the assured were deliberate contracts to indemnify British subjects for the consequences of attempted violation of the belligerent rights of the United States; that such contracts, when sought to be enforced in the courts of the United States, would be held void by those courts; that like contracts, in relation to attempted violation of the belligerent rights of Great Britain, if prosecuted in the courts of that kingdom, would be held void by her courts; that, therefore, in an international tribunal constituted by solemn treaty between the two governments, the comity of nations and a proper regard by one friendly government of the rights of another should preclude the admissibility of such claims. That