the case into consideration and to render a final award. The procedure in the arbitration was regulated by the court. A final decision was rendered July 19, 1880. It was as follows:1

"On the plea of res judicata set up by the Republic of Nicaragua, and founded on the judgment rendered June 14, 1876, by the supreme court of justice of Leon, in the proceedings against Captain William Alard.

"Whereas the difference the determination of which is submitted to the arbitration of the court, has arisen between the French Government and the Republic of Nicaragua on account of the seizure, made on board the ship Phare by the authorities of Corinto, of arms and munitions belonging to Captain Alard; whereas the French Government, considering this act to be contrary to the law of nations and to the stipulations of the treaty of commerce with Nicaragua of April 11, 1859, has in vain demanded, under the conditions prescribed by article 35 of the said treaty, the reparation of the damage caused to one of its nationals; and whereas there followed a long correspondence, and, after the diplomatic discussion was deemed to be exhausted, the Government of Nicaragua proposed, as a means of ending the difference, to submit it to the arbitration of the court of cassation of France; and whereas, this proposition having been agreed to, a convention was on October 15, 1879, concluded, the terms of which, conformably to the understandings expressed in the diplomatic correspondence, precisely determined the object of the arbitration, and unequivocally defined the powers which, by common accord, the parties had conferred on the court; whereas it was expressly agreed by the said convention that the court should have power not only to take into consideration all the facts on which the claim was based, but also, in case Nicaragua should be deemed responsible, to fix the indemnity which should be paid to Captain Alard; whereas, in the presence of such stipulations, it is impossible not to recognize the fact that it was the common intention of the two governments to invest the arbitral tribunal with all power and jurisdiction for the purpose of reviewing and estimating the litigated facts as a whole, and of pronouncing definitively on the difference which had arisen between them, independently of what was decided by the judicial authority of Nicaragua in respect of Captain Alard.

"The plea is rejected;

"And deciding the case on its merits:

"Seeing that it appears by the documents produced that Captain Alard, having left Bordeaux on the ship Phare at the end of the year 1873, was met, in June 1871, at Amapala (Honduras) by the French barque JeanPierre, which brought him a certain number of cases of firearms called rifles, with a supply of cartridges; that these cases, having been transshipped to the Phare, were on board of her when at three different times, June 18, October 6, and November 17, the ship cast anchor at Corinto, the principal port of the Republic of Nicaragua; that a few days after the entry of the ship into the port on the last occasion those arms and munitions were seized on board by the authorities of Corinto;

"Seeing that, according to the claim of Nicaragua, the seizure was

The version here given is a translation from the French text of the award, as printed in De Card's Les Destinées de l'Arbitrage International,

justified (1) because, contrary to the prohibitions of the local legislation, Captain Alard had introduced the said arms and munitions as contraband into the port of Corinto, and (2) because he had attempted to introduce them into the territory of Nicaragua;

"Considering, as to the first reason, that the local legislation, notably the executive decree of July 3, 1849, and the federal customs law of Feb27, 1837, authorized in a general manner the seizure of all things not entered on the manifest, and, besides treating as contraband the commerce in articles the importation or exportation of which was prohibited, specially authorized the seizure of arms introduced without the prior permission of the government, their introduction being lawful under the terms of said laws, only when it was so authorized;

"But considering that it is not established that there was on the part of Captain Alard any violation of the provisions of the law either as to the obligations relative to the manifest or as to the regulations touching the introduction of arms of war;

"That, on the one hand indeed, the arms that were seized appeared on the manifest of November 16, 1874, which expressly disclosed 'four cases of muskets, two packages of revolvers, three cases of cartridges;' that, as a fact, those detailed descriptions were not found in the manifests of June 18 and October 6 relative to the two preceeding voy ages; but that, even admitting that there had been an omission and defect in those two manifests, the irregularity would have been covered by the last manifest of November 16, and could not in any case, after Captain Alard had put himself right, justify the seizure, which would have been just and lawful only if it had taken place at the moment when the offense was committed and ascertained;

"That, on the other hand, the introduction of a thing by a port or into a port consists not in the simple fact of entering the port, but in that of going beyond the line of the custom-house and transporting the merchandise into the interior of the country; that article 11 of the federal law, which forbids all communication with the port' before the deposit of the manifest, itself indicates that what the law means by the port is the town and not the space where ships anchor; that fraudulent introduction is not predicated of a ship which enters the port and submits itself to the formalities of the maritime custom-house; that such was the situation of the Phare on November 22 and 30, the dates of the seizure; that it doubtless belonged to the local authority, if on any ground it considered the presence of arms in the port of Corinto to be dangerous, to refuse to allow the captain to remain there; but that it could not, when the existence of those arms on board was regularly revealed by the manifest, make the seizure on the pretext of a fraudulent introduction;

"Considering, as to the alleged attempt at clandestine introduction, that article 53 of the decree of July 22, 1861, containing a regulation for the custom-house of Corinto, directs that articles shall be seized when there shall be an attempt clandestinely to introduce them; that thus, in point of law, the attempt to introduce, as well as the consummated introduction, is capable of justifying the seizure; but that it is necessary that the attempt should be established in its essential features; that, according to Nicaragua, the acts which impressed that character upon the transaction in question consisted (1) in the fact that the arms, thongh they remained on board of the Phare from the month of June to November 22,

1874, the date of the first act of seizure, were not manifested either on June 18, when the Phare first entered Corinto, or on October 6, when she made her second voyage; (2) in the fact that, on the latter voyage, at the moment when the Phare came into the port of Corinto, the second officer went in a small boat to request of the commandant permission, which was refused him, to cast anchor near the point of Castanones; (3) in the fact that finally, on the same voyage, a musket was sent to Mr. Pedro Brenes and transmitted by the latter, as a sample, to Mr. Guyot, agent of Captain Alard, at Leon; but that these facts, even admitting that they were accomplished with the design, ascribed by the Government of Nicaragua to Captain Alard, of clandestinely introducing warlike arms into the port and on the territory of the republic, constituted merely preparatory acts, and could not be considered as the beginning of the execution of the crime or as a punishable attempt, which alone could have justified the seizure which the Government of Nicaragua thought it its duty to order. "Seeing that, from all that precedes, it follows that the damage caused to Captain Alard in respect of his property is not explained away by any act legally and juridically imputable to him; that if, nevertheless, the Government of Nicaragua decided to order the measure which occasioned the damage, it clearly appears from all the diplomatic correspondence and from the evidence collected on the investigation at Corinto that it was for an end purely political, with the idea of social conservation, and with a view to prevent the arms seized from falling into the hands of a revolutionary party whose manoeuvres and designs the government was then engaged in foiling; that if, having been adopted under snch conditions, measures of that nature constituted acts of legitimate defense, it is nevertheless true that they could be carried out only on the responsibility of the government which thought it right to adopt them and under the obligation to make reparation to those who were the victims of the damage thus caused; that from this point of view therefore, and for reasons of this kind, the Government of Nigaragua ought to be declared responsible. "Considering, in what concerns the indemnity to be paid to Captain Alard, that the documents produced, and especially the appraisements made at Corinto, afford the necessary elements for determining the amount, and that a sufficient indemnity will be made to Captain Alard by allowing to him the following amounts: (1) The sum of 39,720 francs for the value of the muskets on board of the Phare at the date of the seizure, at the rate of 40 francs each; (2) the sum of 600 francs, at which the value of the cartridges seized has been fixed.

"On these grounds the Government of Nicaragua is declared responsible. "The indemnity to be paid to Captain Alard is consequently fixed at the sum total of 40,320 francs, with interest on these damages at the rate of 12 per cent a year from November 30, 1874, the date of the last act of seizure.

"The expenses are to be borne by the Government of Nicaragua."

France and Spain: Questions of Prize.-"We,' Willliam III., by the grace of God, King of the Netherlands, Prince of Orange-Nassau, Grand Duke of Luxemburg, &c., &c., &c.

"Having accepted the functions of arbitrator, which have been con

The agreement of arbitration and the French text of the award may be found in De Clercq, VI. 81, 170.

ferred upon us by the note of the minister resident of Spain and that of the envoy extraordinary and minister plenipotentiary of France to our minister of foreign affairs, dated respectively February 27 and March 28, 1851, in virtue of a declaration signed between those powers at Madrid on the 15th of February 1851, in the difference that has arisen between them on the subject of the ships Veloz Mariana, Victoria, and the Figie, seized respectively February 22, 1823, July 15 of the same year, and January 12, 1824;

"Animated with the sincere desire to respond by a scrupulous and impartial decision to the confidence that the High interested Parties have evidenced and to give them a new pledge of the high value we attach to it;

"Having to that end duly examined and maturely weighed with our Council of Ministers, the convention concluded between Spain and France on the 3d of January 1824, as well as the statements with their exhibits, which the minister resident of Spain and the envoy extraordinary and minister plenipotentiary of France have submitted to our minister of for eign affairs, under date respectively of July 25 and June 21, 1851;

“Wishing to fulfil the obligations that we have contracted by the acceptance of the functions of arbitrator in the above-mentioned difference, by bringing to the knowledge of the high parties interested the result of our examination and our opinion on each of the three questions contained in the act signed between them on February 15, 1851, viz:

"1st. Whether the capture and the sale of the Veloz Mariana were, or not, legitimate, and whether this ship is, or not, comprised in Article I. of the convention of January 5, 1824;'

"2d. Whether the Victoria ought, or no, to be included among the prizes which form the subject of Article I. of the convention of 1824—the ship having been restored, the question applies only to the cargo; and

"3dly. Whether Spain must, or not, consider as analogous cases, from the point of view of the convention of 1824, the cases of the Veloz Mariana and the Vigie, and whether she is, or not, right in her refusal to pay the indemnity she acknowledges to be due to the owners of the latter ship, until France has consented to discharge, by compensation or in some other manner, the indemnity relative to the Veloz Mariana.

"As to the first question, it is a fact

"That the Spanish vessel, the Veloz Mariana, leaving the port of Vera Cruz on the 24th of December 1822, bound for Cadiz, was chased and subse

1

1 January 5, 1824, a convention between France and Spain was signed for the purpose of regulating the subject (as the preamble declared) of "captures during the preceding year." By Article I. of this convention it was stipulated that whereas the Spanish ships captured by the vessels of His Most Christian Majesty, together with their cargoes, are estimated at a value approximately equal to the prizes made by Spanish vessels and cruisers of the commerce of France," "the prizes reciprocally made and conducted into the ports of the power which made such prizes shall belong to each of the two governments, subject to the charge of regulating as they shall judge convenient the indemnities due to their respective subJects, France and Spain mutually renouncing all right of recovery in that regard." (Br. and For. State Papers, XI. 20.)

quently taken on the 22d of February 1823 by the French ship of the line the Jean Bart, cruising in the waters of the Antilles for the purpose of protecting French commerce;

"That the commandant of the Jean Bart gave as a reason for this seizure that there had been provocation and a hostile intention on the part of the Spanish captain, who in the darkness fired a cannon shot at the vessel that gave him chase, without having shown his colors;

"That the Veloz Mariana was first taken to Martinique and then to Brest; "That, being brought into this latter port at the time the war had begun, the vessel was sequestered and subsequently sold by order of the French authorities, notwithstanding the protests of the owners and the claims of the Spanish Government;

"And considering

"That it is proved by history, and not contested by the high interested parties, that the beginning of the war of 1823, or of the armed intervention in Spain, could not be set at a date prior to the 8th of April of that year, when the Bidassoa was crossed by the French army, and that, therefore, the Veloz Mariana, seized on the 22d of February preceding, was not captured during that war;

"That the expression, 'vessels captured during the preceding year'— 'las presas hechas en el año 1823'-which the high parties have used in the preamble of the convention of January 5, 1824, in view of the manifest intention of the contracting parties, and conformably to international law, can be interpreted only in the sense that it relates to captures made during the war of 1823, of which the said convention was invoked in part to determine the consequences;

"That the seizure of a vessel previous to the period when a war breaks out cannot be considered as a maritime capture in war;

"That the reasons which induced the commandant of the Jean Bart to take the Veloz Mariana, whether justifiable or not, could in no case give to the arrest the character of a capture in war, nor have any other legal consequences than to involve the personal responsibility of the captain of the Veloz Mariana and to give rise to a judicial inquiry;

"That neither could the sequestration of the Veloz Mariana in the port of Brest at a time when the war was begun be equivalent, under international law, to a maritime capture;

"We are of opinion that the seizure and the sale of the Veloz Mariana could not be considered as a legitimate capture and sale, and that this vessel does not come within Article I. of the convention of January 5, 1824. "As to the second question, it is a fact

"That on the 15th of July 1823 the Spanish frigate Victoria, coming from Manila, was arrested in sight of Cadiz by the French squadron, taken to the port of San Lucar de Barrameda, in Andalusia, then occupied by the French troops, and sequestered;

"That during this sequestration a part of the cargo of the vessel was used for the service of the French army and fleet;

"That after the signing of the convention of January 5, 1824, the Spanish Government claimed in behalf of the owners the restitution of the Victoria, which had remained sequestered;

"That the French Government, without recognizing the right which the Spanish Government alleged in support of its demand, nevertheless con