was ready to leave San Joze on February 13, 1836, when the master attempted to clear for Porto Alegre, Brazil; that he was refused a clearance for that port, and was prevented from going thither by the Brazilian authorities, on the ground that the port was in the possession of insurgents, and that he was not permitted to sail to Porto Alegre till March 2, 1836. On these facts the commissioner said:"

"The question arises whether under the seventh article of the treaty be tween the United States and the Emperor of Brazil concluded at Rio de Janeiro on the 12th December 1828 and which was in full force and virtue when the facts are alleged to have occurred, the imperial government is liable to the claimants for damages and losses occasioned by reason of the brig and cargo remaining at San Joze do Norte.

"The seventh article of said treaty is in the following words, viz: 'The citizens and subjects of neither of the contracting parties shall be liable to any embargo, nor be detained with their vessels, cargoes or merchandise or effects, for any military expedition, nor for any public or private purpose whatever, without allowing to those interested a sufficient indemnification.'

"An embargo is a proclamation or order of state usually issued in time of war or threatened hostilities prohibiting the departure of ships or goods from some or all the ports of such state until further order.' In this case the Toucan was not subjected to any embargo, nor was this vessel or her cargo detained for any military expedition or for any public or private purpose whatever, save the private purpose of the master who for seventeen days insisted on carrying out his cherished object of going up to Porto Alegre, until he at length obtained permission to clear for that port.

"For it is nowhere alleged in the memorial or in either of the protests of the master that the Toucan and her cargo were not at any time during said seventeen days free to go from San Joze do Norte to any port in Brazil except Porto Alegre, or to any port in any other country.

"The preventing of the Toucan and other vessels by the Brazilian authorities from going up to an interior port which had been closed on account of a civil insurrection existing there at the time, was but the exercise of a right incident to a sovereign state; and amounting to no embargo upon that ship or other vessels in San Joze; nor to a detention of her or them so long as they were free to go elsewhere than to said port of Alegre.

"With this view of the law touching the said claim for detention at San Joze, I should be compelled to rule out that part of the claim, however clearly the fact of the prevention of the brig from clearing for Porto Alegre by the Brazilian authorities might be established by the evidence."

There was a second claim in the memorial for the alleged detention by the Brazilian authorities of the Toucan and her cargo at Porto Alegre from the 5th April to the 5th September 1836. In regard to this claim the commissioner said:

"This claim I divide into two branches.

"1st. That for the detention at Porto Alegre from the 5th April to the 15th of June 1836, at which last date that port was repossessed by the imperial forces; and the 2nd, that for the detention which is alleged to have continued from the 15th of June till the 5th of September. I make this division because, although it is nowhere alleged in the memorial that Porto Alegre was at this time retaken by the imperial powers, yet such is the well-authenticated historical fact.

"Let us suppose, then, as in reference to the claim first set forth in the memorial, that all the material allegations contained in the memorial from the sailing of the brig from Boston till permission was granted to the master on the 2nd of March to clear her from San Joze to Porto Alegre; and further let it be granted for the sake of the argument that it is proved as laid in the memorial that the Toucan sailed for said Port of Alegre on the

Mr. Fisher to the Hon. H. Hamlin, May 22, 1851, MSS. Dept. of State.

4th of March 1836, and arrived there on the 15th of that month; and that in consequence of the communication between that port and the rest of the province being entirely cut off by order of the imperial authorities, the brig was detained there during the period alleged in the memorial, viz: from the 5th day of April till the 5th day of September. Then, if the Brazilian Government had the right, which I am satisfied it clearly possessed, to close the port of Alegre to navigation so long as it should remain in possession of the insurgents, the question is presented whether, after having availed himself of the permission granted, by special favor and not as of right, to go up to Porto Alegre, the master of the Toucan can hold that government liable to heavy damages for the refusal to grant him the additional special favor of again temporarily opening the uncommunicated port in order to allow him to return thence, so long as that port continued to be held by the rebel forces. In my opinion no such liability ever existed; for the permission to go up to Porto Alegre did not carry with it the liberty to return thence so long as the rebels retained possession of it. On the contrary, in availing himself of the privilege, yielded after much solicitation, to go to Porto Alegre, he assumed the responsibility for the consequences which followed, and voluntarily took upon himself to abide the chances of a speedy restoration of order there or of a second suspension in his favor of the decree by which that port was known to him to be closed.

“For these reasons I shall also be compelled to decide against that portion of the second claim contained in the memorial which is based upon the detention of the brig and cargo in Porto Alegre from the 5th of April till the 15th of June.

"But as the imperial decree of the 3rd of March 1836, ratifying the provisional order of the president of the province of Rio Grande, closed the port of Alegre only until order should be restored there, and as it is fair to presume that order was restored there on the 15th day of June, the day on which the imperial forces regained possession of said port, the Brazilian Government is in my opinion liable for all the losses and damages which the Toucan and her cargo sustained during the detention which occurred subsequent to that time, provided no offense against the laws of the empire was committed by the master of said brig to justify said detention. So far as I am at present advised the Government of Brazil in its correspondence with that of the United States in relation to this case has never alleged that any such offence was committed."

An award was made accordingly.

Case of the Ship "Tarquin."

The master and crew of the American whale ship Tarquin, at great personal risk, as well as at the risk of losing their ship, saved a transport belonging to John VI. King of Portugal, Brazil, and the Algarves, then having his court at Rio de Janeiro, and succeeded in bringing the transport into the harbor of Santos, in Brazil. In consideration of this service, by which the Tarquin lost the chances of a whaling voyage, the King issued an order for the completion of her cargo of oil from the royal magazines at Rio de Janeiro-under all the circumstances a fair compensation for the service rendered. The order thus issued was, however, evaded by the officers of the Crown, who put on board only 229 barrels of oil, while her capacity was upward of 1,300 barrels. The ship waited at Rio for ten months, in the hope that the order of the King would be executed, but it was not done. She then returned with what she had on board, including the oil obtained at Rio, to Nantucket, her home port. On these facts the commissioner said: '

'Mr. Fisher to the Hon. H. Hamlin, February 26, 1852, MSS. Dept. of State.

"The citizenship of the captain and owners of the Tarquin is proved by the best evidence of which the nature of the case will admit. The citizenship of the persons composing the crew it was not necessary to have established, because they are not and never were claimants against the Government of Brazil; their claim was and is against the part owners of the Tarquin, the share of each individual of the crew of a whaler being in 'the nature of wages unliquidated at the time, but capable of being reduced to a certainty upon a conversion of the oil into money;' in other words, had the Tarquin pursued her voyage regularly, and returned into Nantucket, with a full cargo of oil, each individual of her crew would have been entitled to receive wages to the extent of his proportion in the produce of the voyage. Their remedy would have been assumpsit against the owners had the latter refused to comply with their engagements; but the owners had the right to claim the whole amount of oil necessary to complete the cargo against the Brazilian Government, whether the crew of the Tarquin were Americans or not.

"The award and distribution of it are based upon these principles.

"The material facts alleged in the memorial as the basis of the claim preferred being fully established, it becomes necessary to enquire whether the present Government of Brazil is liable to the claimants, or whether her separation from Portugal has released her from that liability in whole or in part.

"It is true that until the Portuguese monarch was driven by the convulsions which shook the continent of Europe in the beginning of the present century to transfer his court from Lisbon to Rio de Janeiro in 1808, Brazil had been but a mere colony of Portugal; but from the date of the establishment of that court at Rio de Janeiro, Brazil may be said to have begun to emerge from her state of colonial vassalage and to have risen gradually to dignity and preeminence, until on the 17th day of December 1815 she was finally elevated by the Prince Regent to become a Kingdom, and was immediately united with Portugal and the Algarves under the style and title of the United Kingdom of Portugal, Brazil and the Algarves. This event is commemorated by Mr. Sumter, the United States minister then residing at Rio de Janeiro, in a despatch addressed to the Department of State, bearing date of the 29th December 1815, in the following language: Under the cover marked A you will find a Law which was published at this Court on the 17th inst., which was the Queen's Birthday, erecting Brazil into a Kingdom, uniting it, together with the Kingdoms of Portugal and the Algarves, in one political body, and assuming for the Prince a title analogous to this change and union.' In the paper referred to it is decreed as follows: "That from and after the publication of the present law the State of Brizil shall be raised to the dignity, preeminence, title, and denomination of the Kingdom of Brazil; second, that my Kingdoms of Portugal, Algarves and Brazil shall henceforth be one single Kingdom under the title of the United Kingdom of Portugal, Brazil and the Algarves.' Thus it was that the sovereignty of Brazil was formally declared by the Prince Regent himself, whilst that sovereignty had been before recognized by the Treaty of Vienna, and Brazil became one of the coordinate States of the United Kingdon of Portugal, Brazil and the Algarves, each of which coordinate States was invested with the right of self-government, Brazil having its own legislative assembly, and being actually the residence of the head of the United Kingdom and of his Court. Such was the status of Brazil when the claim in question originated, to wit, in the summer of 1816. The vessel saved by the Tarquin and the troops on board that vessel were at the time engaged in the service of Brazil, destined to Saint Catharines; the decree from the Prince Regent, made in accordance with his promise to Capt. Bunker to fill up the complement of his cargo of oil in satisfaction of the claim of salvage, was issued in Rio de Janeiro and was to have been executed there by taking so much oil from the royal magazines in that city; so that the service rendered by the Tarquin was rendered to Brazil alone, and that service was very properly ordered by the Prince Regent to be requited at the expense of Brazil alone. No contribution whatever was to have been made by Portugal. The question then presents itself whether on the separation of the two countries which subsequently took place this

claim, still remaining unliquidated, became extinguished altogether by that separation, or was transferred in whole or in part to Portugal from Brazil, whose royal magazine was to have furnished the oil decreed to be delivered to Capt. Bunker, and which (that oil never having been so delivered) was the gainer by so much oil or its equivalent (all public property upon the separation remaining in Portugal or Brazil just as that separation happened to find it), or whether Brazil alone should be held to the entire liability of the claim.

"This claim was in the nature of a public debt, founded upon the King's decree, and by the rule of international law public debts are not extinguished upon the division of a state into distinct states, whether that division be by war or mutual consent; but they must be discharged either jointly or severally according to the principles of justice and equity. And as to Brazil accrued the entire benefit of the service rendered by the Tarquin, as in her royal magazines there remained for her benefit the oil with which that service should have been requitted and paid, in obedience to the order of the King, so also, upon every ground of equity and right, should the entire responsibility for this claim have passed to her upon her separation from Portugal."

On the grounds above stated the commissioner awarded to the claimants a sum representing (1) the value of the oil which it would have required to complete the cargo of the ship; (2) an indemnity for the ship's detention from September 24, 1816, the date of the order of the Prince Regent for the completion of the cargo, till February 20, 1817, when the United States minister at Rio de Janeiro informed the master that he had better abandon all hopes of having the order fulfilled, and leave Rio de Janeiro; and (3) interest at 6 per cent per annum on both the foregoing allowances from June 6, 1817, when the ship arrived at Nantucket, to the close of the commission.

The value of the oil for which the award was made was estimated according to the value at Nantucket of the oil which the Tarquin brought thither on her arrival.

On the last day of the commission, the commissioner Summary of Awards, and secretary certified a full record of the awards, which had been entered at large in a book kept for that purpose. Of these awards the following summary is presented: No. 1. Case of the bark Sarah and Esther, of Boston. Claimant, Daniel T. Willetts. Memorial filed October 13, 1850; amount claimed, $17,732.30. Claim disallowed on the ground that it had not been presented by the United States to Brazil prior to January 27, 1849, the date of the conclusion of the convention.

No. 2. Case of Hayes, Engerer & Co. Claimant, Patrick Barry Hayes, in his own behalf, and as attorney in fact for John Bowen, being the sole surviving partners of the house of Hayes, Engerer & Co. Memorial filed December 11, 1850; amount claimed, Rs. 86,329,732, and $160,000. Disallowed on the same grounds as No. 1.

No. 3. Case of the brig Toucan, of Boston. Claimants, Nathaniel Hamlin and Parker H. Pierce. Memorial filed December 20, 1850; amount claimed, $24,220.5. The sum of $19,453.83 was found to be justly due; and on the basis of this sum an award was made in favor of the claimants, as the ratable proportion to which they were entitled out of the whole fund ($322,535.98), for $15,008.19.

1MSS. Dept. of State.

No. 4. Case of the sloop Morning Star, of Philadelphia. Claimants, Humphrey Hughes and Martha McQuin, administratrix of James McQuin, deceased. Memorials filed February 10, 1851; amounts claimed, Humphrey Hughes, $7,152; Martha McQuin, $3,576. Disallowed on same ground as No. 1.

No. 5. Case of bark Yeoman. Claimant, Bradford Barnes, jr. Memorial filed January 7, 1851; amount claimed, $31,397. Disallowed on same ground as No. 1.

No. 6. Case of schooner Shilleleh, of Baltimore. Claimant, Richard S. Stewart, executor of the will of George Law (the assignee of John Odom, original owner of the schooner), and administrator of Samuel Rose (original owner of the cargo), by James Birkhead, his attorney in fact. Memorial filed February 22, 1851; amount claimed, $79,847.17. Claim found to be valid to the amount of $74,302.69. An item for sundry commissions against the schooner was rejected because it was "composed of commissions for services in attending to the suit instituted by the owners of said schooner against the Brazilian Government not allowable in admiralty cases as part of the costs and of commissions on sales of cargo which never were made, the same having been seized by the Brazilian Government.” An award was made, on account of Law's interest, for $24,273.22, and on account of Rose's for $33,050.03, subject, however, to the deduction which the Secretary of the Treasury might make under the sixth section of the act of March 27, 1850.

No. 7. Case of the ship Shamrock. Claimant, Marcia Kennedy, administratrix of John F. Kennedy. Memorial filed February 22, 1851; amount claimed, $56,324.78. In a supplementary memorial an additional claim was made for $20,973.96. Claim found to be valid to the amount of $26,977.50; ratable proportion awarded, $20,812.57, of which the sum of $3,389.08 was set apart, by consent, for John Gardner.

No. 8. Case of schooner John S. Bryan, of Boston. Claimant, Thomas P. Pingree. Memorial filed March 1, 1851; amount claimed, $11,270.25. Claim found to be valid to the amount of $3,249.47; proportion awarded,

$2,506.90.

No. 9. Case of the ship Shamrock, of Beverly, Massachusetts. Claimant, William Burroughs. Memorial filed March 5, 1851; amount claimed, $57,587.73. Found to be valid to the amount of $23,777.80; proportion awarded, $18,344.12.

No. 10. Case of the brig Sally Dana, of Philadelphia. Claimants, John P. Bernadou and Sarah Ray. Memorial filed March 15, 1851; amount claimed, $13,023.72. Claim disallowed on the ground (1) that the charter party, a breach of which on the part of the Brazilian authorities was alleged, was not shown to have been executed by those authorities, and (2) "that according to the principles of international law as uniformly acknowledged and acted upon by the Government of the United States it can not enforce or demand any claim arising out of a mere contract between one of its citizens and a foreign government."

No. 11. Case of the schooner Hope. Claimant, William W. Harper, administrator of Samuel B. Harper. Memorial filed May 5, 1851; amount claimed, $2,292. Found to be valid to the amount of $1,130.30; proportion awarded, $872.08.