these contracts of insurance were distinguishable from "war risks" recognized by all nations as legitimate subjects of insurance, and such as were discussed among the American claims before the tribunal at Geneva; those were assurances of the merchant-vessels of a belligerent against capture by their enemy, and such as are recognized in all wars of maritime nations as a permissible and necessary means to the preservation of any commerce whatever to a belligerent; but these are deliberate contracts to indemnify a neutral who, by carefully excluding the "free from capture" clause, admits that he is engaged in an attempt to violate the belligerent rights of a friendly nation. That though the violation of blockade by a neutral is not held by international law to be strictly a crime, it is an unfriendly act, prejudicial to the character and interests of the neutral government of which the violator is a citizen, and to her honest and legitimate traders, and calculated to promote discord and hostility between friendly nations. That a contract to indemnify the citizen of a neutral government against the lawful consequences of his own wrongful act against a friendly government, should never be made a ground of reclamation by the government of the wrong-doer against the injured government, nor be countenanced by an international tribunal organized as a means of amicable settlement between two such governments.

On the part of the claimants it was contended in answer that the Supreme Court of the United States had in effect passed upon all the questions involved in the prize court, and had finally adjudged that the claimants should not have damages against the captors; and had determined that the fact of the capture having taken place in the waters of Mexico, a neutral and friendly nation, did not make the capture a wrongful one as between the captors and the claimants, Mexico not having intervened. That on the proofs in the case there were no such circumstances of suspicion as to afford probable cause of capture within the doctrines of the prize courts. That if such probable cause within the rules of those courts existed, it was plain, from the proofs before the commission, that actual injustice had been done to the owners of the vessel and cargo; that the vessel was engaged in a legitimate commerce; and that, according to justice and equity, the claimants should be re-imbursed for the losses in consequence of the capture ultimately adjudged a wrongful one, even though the capture were held excused by the doctrine of probable cause under prize law. That the capture of the vessel within the neutral waters of Mexico was in violation of international law, and absolutely illegal and void. That the doctrines of the prize courts that such a capture could only be questioned by the government whose territory had been violated, applied only to the case of an enemy ship captured in neutral waters and not to the case of a neutral vessel so captured. That, even if that doctrine applied in the last-named case, it was only as a technical rule of the prize courts requiring an intervention there by the government whose territory had been violated, and

was not applicable in the case of an international tribunal, which should be controlled by the consideration that the capture was an illegal one under international law.

The counsel for the claimant cited Dana's Wheaton, §§ 171, 426, 428, 429, 430; the Vrow Anna Catherina, 5 Rob., 18; Lawrence's Wheaton, 215 n., 715; Wheaton on Captures, (appendix,) 341; the Anne, 3 Wheat. Rep., 435; the Richmond, 9 Cranch, 102; the Peterhoff, 5 Wall., 28; the Bermuda, 3 Wall., 557.

The counsel for the claimant also maintained that the insurers and underwriters were to be deemed parties to the memorial by Mr. Gerard, as their attorney in fact; that the assignment to Gerard was a valid one; and that the contracts of insurance were also valid and entitled to recognition and protection under international law.

The commission (Mr. Commissioner Frazer dissenting) gave the claimants an award for $272,920. I am advised that the award was placed by the majority of the commission on the ground that the capture within the neutral waters of Mexico was absolutely illegal and void; and that the claimants were entitle to make reclamation on that ground, irrespective of any question of complaint or intervention on the part of Mexico.

In this case, in connection with the cases of the Science, the Volant, and the Dashing Wave, Mr. Commissioner Frazer read a written opinioo, which will be found in the appendix, M.

The brig Dashing Wave; Charles Le Quesne et al., No. 395, claimants for vessel; Edwin Gerard, No. 244; Simpson & Pitman, No. 396; McDowell & Halliday, No. 397; the Thames & Mersey Insurance Company, (limited,) No. 427; and the British and Foreign Marine Insurance Company (limited) et al., No. 428, claimants for cargo.

This vessel was captured while at anchor off the mouth of the Rio Grande, on the 5th November, 1863; was taken into the port of New Orleans and there libelled in the United States district court. A decree was made in that court, 16th June, 1864, adjudging restitution of the vessel to the claimants; from which decree the United States appealed to the Supreme Court. Further proceedings were had in the district court on the question of costs and damages; and, on the 3d June, 1865, a decree was made adjudging that the costs and charges consequent upon the capture be paid by the claimants, and that damages be refused to them.

From this decree the claimants appealed to the Supreme Court. The Supreme Court affirmed the decree of the district court restoring the vessel and cargo; but directed that the costs and expenses consequent upon the capture be rateably apportioned between the vessel and the shipment of coin hereinafter named; and that the residue of the cargo be exempted from contribution. The district court determined, upon the

proofs, that the vessel when captured was anchored south of the line dividing the waters of the Rio Grande, and was therefore in neutral waters. The Supreme Court held, on the contrary, that the proofs clearly showed her to have been anchored north of the division line above named and within the waters of Texas, then in possession of the enemies of the United States. The case in the Supreme Court is reported in 5th Wallace, pages 170 to 178; to which report reference is made for the statement of the peculiar facts of the case. No proofs were made before the commission substantially changing the facts as there stated.

Many of the questions involved in this case were identical with those involved in the case of the Sir William Peel above reported, and therefore need not be again stated.

Edwin Gerard, No. 244, claimed as assignee of the insurers of Messrs. F. DeLizardi & Co., the alleged owners of 12,000 British sovereigns, a portion of the cargo upon which, together with the vessel, the costs and expenses consequent upon the capture were apportioned by the decree of the Supreme Court.

Simpson & Pitman, No. 396, and McDowell & Halliday, No. 397, claimants as owners respectively of parts of the cargo exempted from contribution by the final decree, claimed damages by the depreciation of the cargo during its detention, and for costs and expenses to which they had been subjected.

The insurance companies, Nos. 427 and 428, claimed respectively as insurers of portions of the cargo in like manner exempted from contribution and which had been duly abandoned to them as insurers, and payments made by them respectively as upon a total loss.

Upon the two last-named claims of the insurance companies, questions were raised on the part of the United States, as to the validity of the contract of insurance in the same regard reported above in the case of the Sir William Peel, and also as to the right of the insurance companies to recover in respect of portions of the cargo owned by persons not appearing to have been British subjects. This last-named question was subsequently more distinctly raised and passed upon in the case of the Circassian, and will be hereafter reported under that case. The commission unanimously disallowed all the claims.

The Brig Volant, John Amy et al., No. 388, claimants for vessel; Edwin Gerard, No. 245, claimant for cargo.

This vessel was captured on the 5th November, 1863, at the mouth of the Rio Grande, taken into the port of New Orleans, and there libelled. By a decree rendered on the 11th June, 1864, the district court condemned the vessel and cargo as lawful prize. From this decree the claimants appealed to the Supreme Court, which court reversed the decree of condemnation, but held that the capture was justified by "probable cause," and adjudged restitution of the vessel on payment of costs and charges. The case is reported in the Supreme Court in 5th Wal

lace, pp. 179, 180. It appeared that the vessel, when captured, was anchored within Texan waters.

The claimants in No. 388 claimed as owners of the vessel for re-imbursement of the costs and charges paid by them, and for damages by the detention of the vessel.

Mr. Gerard, in No. 245, claimed, as assignee of the insurers of the cargo to whom the same had been abandoned, and who had paid as for a total loss, about $40,000, besides interest, for depreciation of cargo after the seizure, including the value of ninety-three cases of brandy, alleged to have been abstracted from the vessel while in custody of the officers of the district court.

The questions involved in respect to this vessel are substantially covered by the report of the foregoing case of the Sir William Peel, and by the report of the case in 5th Wallace.

The claim of Amy and others, No. 388, in respect of the vessel, was unanimously disallowed by the commission.

In the case of Mr. Gerard, No. 245, the commission made an award in favor of the claimant for $1,785, Mr. Commissioner Gurney dissenting. I am advised that this award was made in respect of the brandy abstracted while in charge of the officers of the district court; and that the other claims for damages in the case were disallowed.

The bark Science; Thomas E. Angell and others, claimants, No. 391. This vessel was captured at the same time and place with the Dashing Wave and the Volant, libelled in the same court, and the same decrees entered respectively as in the case of the Dashing Wave, and the same appeals taken by the respective parties to the Supreme Court. That court affirmed both judgments of the district court restoring the vessel, and charging her with the costs and expenses of capture, finding upon the proofs that she was, when captured, anchored within Texan waters, and that no excuse appeared for her being there. The case in the Supreme Court is reported in 5th Wallace, pp. 178, 179. The counsel for the claimants, in addition to the points above cited in the case of the Sir William Peel applicable to this case, contended that the capture was one made in bad faith; that the Science had arrived off the mouth of the Rio Grande on the 11th August; that, immediately on her arrival, she was boarded by an officer of a United States blockading vessel, who examined her papers and inspected her cargo, and permitted her to anchor and discharge her outward cargo, and take on board a large portion of her return cargo; that the only allegation made by the capturing officer was that her outward cargo had included cloth of the character and description used for confederate uniforms; that this allegation constituted no ground of capture, and even if originally it might have afforded probable cause of capture, it certainly could not, after the vessel had been allowed to lie three months in the offing, and take on board a valuable cargo of over

300 bales of cotton.

That the fact of her being at anchor within Texan waters, if it existed, did not of itself constitute probable cause, there being no evidence in the case to indicate an intention of violation of the blockade; that, by international law and under the treaty of Guadalupe Hidalgo, the roadstead at the mouth of the Rio Grande was an open roadstead, where neutral vessels trading with Matamoras had a right to lie at anchor, whether north or south of the conventional line between the United States and Mexico established by that treaty ; and that the United States could no more lawfully interfere with the enjoyment of that right than they could with the right of vessels in course of the same trade to navigate the mouth and current of the river; that the right to the navigation of the Rio Grande included the right to the means without which such navigation could not be reasonably enjoyedamong others, the right to moor in the roadstead at its mouth. That, even if the United States could claim an exclusive right to occupy the waters north of this line for the purpose cf blockade, that a vessel honestly engaged in trade with Matamoras, and anchoring for that purpose on the Texan side of the line, was entitled to notice or warning before it could be treated as intruding on forbidden ground, and that a seizure without such notice was unjustifiable; that, in fact, the proofs failed to establish that the vessel was lying north of the dividing line, and that the blockading vessels, by omitting to apprize her that she was anchored in a place which they deemed an improper one, and by permitting her to be there and take on board her return cargo, were estopped to allege that her position was an unlawful one. The claimant's counsel cited the Terecita, 5 Wall., 180; Madeiros vs. Hill, 8 Bing., 231; Nailor vs. Taylor, 9 Barn. & Cres., 718; Carrington vs. Merchants' Insurance Company, 8 Peters, 517; Mr. Jefferson's paper on the navigation of the Mississippi, 1 Am. State Papers, 254.

On the part of the United States it was contended that the Science, and the other vessels of her class, could not enter by reason of their draught of water, and never attempted to enter, the mouth of the Rio Grande, or to reach the port of Matamoras. That, conceding her full right to navigate that river and the waters through which its mouth was to be approached, and even for that purpose to pass over the blockaded waters of the Confederate States, it did not follow that she had the right, for her own convenience and for the delivery of her cargo into lighters, to cast anchor within those blockaded waters, and there lie for weeks in a position from which access, by means of lighters to the blockaded coast, was easier, by night or by day, than that to the neutral port for which her cargo professed to be destined. That the United States. were lawfully entitled to blockade, and did blockade the sea-coast of Texas, and that such blockade would be wholly nugatory if a vessel in the condition of the Science could claim and exercise the right to cast anchor within the blockaded waters, and within three miles of the enemy's.