order of arrest above mentioned was issued by the Minister Morales as prescribed by the law. The art. 18 of tit. 4 of the Constitucion Política del Perú ordains 'Los ejecutores de dicho mandamiento estan obligados á dar copia de el siempre que se les pidiere' (those who execute this order are bound to give a copy of it whenever they are asked.)

"Now, it does not appear from the investigation documents that White himself ever asked for the communication of such a copy, whilst, according to the above legal provision, it was in that case only that it was usual to give the same, but there can be the less doubt that a copy would have been delivered to him on his asking for it, as from the documents it is evident that the whole of the important judicial decrees had been handed over to him whenever the rules of procedure permitted. A reference to the correspondence between Mr. Jerningham and the minister, Melgar, shows that the former requested to be informed on the 17th of April, whether the arrest of White had been legally made on the written order of a competent authority. To this question a perfectly satisfactory. answer may be found in the reports of Miguel Bagnero and Manuel Freyre of the 1st of May, communicated to Mr. Jerningham. It is, however, certain that from the 20th of August, at any rate, White was aware of the wording of the order of arrest, although he had not asked any official for a production of the copy, as on that day the whole of the documents were read over to him (folio 104 of the investigation documents).

“Lastly, an irregularity on the part of the authorities against the prescription of Tit. IV., art. 18, could only entail a fine, as the documents prove that the order of arrest had been made according to law, and that, consequently, no material right of the prisoner had been violated.

"The fact of no document containing the accusation having been put before the accused requires no justification. In the preliminary investigation the communication of the accusations and grounds of suspicion takes place regularly and properly only when the investigating judge who has to prepare the accusation considers it necessary.

"No less untenable is the complaint that no counsel was allowed the accused during the investigation. That appears to be utterly inadmissible in preliminary investigations. At the opening of the judicial trial counsel was granted to White as the Peruvian law requires, and he conducted the defense with the utmost zeal. It is evident that the granting of counsel in preliminary investigations preceding a criminal trial can not be claimed by art. 7 of the treaty of 10th April 1850, which stipulates that in no case shall counsel be denied to British subjects any more than to natives, as at this stage counsel is not allowed to natives. (See Report of Judge Ponce, dated 7th September 1851.)

"The complaint also that an interpreter was denied to the accused is proved to be unfounded. The report of Banda (folio 7 of the investigation documents) proves that the accused was asked before the examination, whether he was acquainted with the Spanish language and that he replied in the affirmative. White's knowledge of the language may also be inferred from his signing, without protest, the minutes of the examination (folio 6, ibid.), and it is also proved by the testimony of Calista Peralta (folio 48, ibid.). The order therefore of the attorneygeneral, which denied this request as frivolous, is fully justified.

"The assertion of White that threats and intimidations were used, and that he had even been forced to sign a false document, appears to be a pure invention in the face of the documents and the official reports of Ponce (ride folios 4 and 102 of the investigation documents) and the reports of Ponce of the 29th of April and 7th of December 1861.

"That White was forced to sign any document is the more evidently untrue, as not only was there no reason whatever for it, but also because he refused to sign nearly all the documents laid before him, nor was he ever asked to do so a second time; for it was quite immaterial to the course of the proceedings whether his signature was given or not.

"Finally, just as little can there be any just complaint that the accused was not confronted with any of the witnesses examined, the order for such confrontation depending solely on the discretion of the investigating judge, and on his conscientious consideration whether it would be desirable for the purpose of ascertaining the true state of the case.

"In the present case the judge could not deem it desirable, as there were no contradictions to be cleared up, for which purpose such confrontations are usually ordered; for White says nothing at all against the evidence of the witnesses, but contented himself by declaring that such testimony did not affect him and accusing the Peruvian Government of having bought it.

"But, as it is stated on page 17 of the statement of the British Government, 'It appears that the judges, when they ascertained from his answers to their own interrogatories that he desired any particular witnesses to be examined on his own behalf, took similar means for procuring the testimony of these witnesses.' It is only thereby acknowledged that the judge did his duty according to the legally inquisitorial character of the preliminary investigation for a penal accusation.

"It must be repeated that the principles of law which obtain in England are not applicable here.

"Now, as White was arrested on the 23rd of March 1861, and the accusation of the attorney-general was not made until the 28th of August, it appears at first sight that the investigation lasted an unusually long time. But it was necessary, first of all, to examine a great number of witnesses, and at four places, far distant from each other, namely, Lima, Arica, Tacna, and Iquiqui, and it appears from the documents that the time up to the 4th of July was fully occupied by that examination and by the necessary official communications of the various courts with each other, as well as those of the acting judges with the higher authorities, for the purpose of obtaining their decisions; and there does not appear to be any ground for charging the courts and authorities with dilatoriness. On the 4th of July it was reported from Arica that the examination of the witnesses Pedro, Caro, Jerr, Thomas Pearson, and Manuel Ruperto could not be obtained, as they resided in the Republic of Bolivia. Then, as it could not well be left undone in the then state of the investigation, the necessary steps were taken to obtain their evidence there; but as no answer had, up to the 8th of August, been given by the ministry of the Republic of Bolivia to the written request made for that purpose, the attorney-general, in order to avoid a useless delay, decided on the following day that the proceedings should commence forthwith. That from this day no delay took place

up to the sentence in the third instance, with the exception already mentioned as not satisfactorily explained, but at all events of no importance, has been shown above.

"This complaint also must therefore be considered as disposed of.

"4. The last complaint of the British Government, The expulsion of White from the territory of Peru as the result and conséquence of such unjust proceedings.'

"As the basis of this complaint, the statement of the British Government says (at page 29) that, although the corte superior had annulled the sentence in the first instance, that White should quit the country, the Peruvian Government ordered him to leave the country, and that this order had been transmitted to him through the prefect of the town of Lima, to whom he was ordered to present himself on his release on the 9th of January 1862.

"These alleged facts are, however, contradicted by the documents. In the first place, the sentence of the corte superior is of no importance, as that sentence was quashed by the corte suprema, and only orders a surveillance by the police of the accused, who was freed from the instance. There is no mention, therefore, of banishment in the sentence. Moreover, there is no foundation whatever for the assertion that the Peruvian Government gave this order of banishment contrary to the final judgment. The circumstance also that this complaint was never pressed at the previous diplomatic proceedings by the British Government against the Peruvian Government does not add to its credibility; but the untruth of this assertion is evident from the letter which White addressed to the criminal judge on the 15th of January, in which he requests (fol. 1 of the investigation documents) to be furnished forthwith with copies of the documents of the trial, as he was obliged to quit the republic on account of urgent private affairs.'

"As it appears, therefore, from all that precedes, that the British subject, Captain Thomas Melville White, was arrested on Peruvian territory on occasion of serious suspicions, based upon important information; that the investigation has been conducted with zeal and circumspection, in conformity with the regulations of the Peruvian laws, and without procrastination; that he was publicly accused in consequence of the result of this investigation and by no means found innocent, and was therefore not absolved by the legally valid sentence of the supreme court of Lima, whose jurisdiction is not at all questioned, from the charge of hostile agitation against the republic, but only freed from the instance; while the assertions that White had been treated during his arrest with cruelty and severity, and expelled from the country by the Peruvian Government, contrary to the sentence, when not in direct contradiction to the documents, are wholly destitute of any credible foundation-the present claim on the part of the British Government for a pecuniary compensation for White appears of no force whatever, and is to be rejected as unfounded. "The costs to which each party has been put with regard to these proceedings are to be borne by themselves. The costs incurred by the commission in these proceedings are to be paid, a moiety by each party.

Great Britain and Portugal.—Award of the Senate of Hamburg on the complaint of Mr. Croft against the Portuguese Government February 7, 1856. [Translation.]

"The complaint against the Portuguese Government, which has been referred by Mr. Croft and supported by the British Government, is to the effect that the Portuguese administrative authorities, by denying to Mr. Croft the patent of registration, have infringed those rights which had been adjudged to him by judicial decisions, and thus, in contravention of the constitutional Charter of the kingdom, have withheld the acknowledgment due to the acts of the judicial power; wherefore the Portuguese Government is liable for damages.

"This claim rests, therefore, on the twofold allegation: (1) That the administrative authorities have acted illegally; and (2) that the government is responsible for the consequences of the illegal proceedings.

"Neither of these allegations can be admitted.

"The administrative authorities, in refusing to grant the patent, acted in conformity with the administrative code which regulates their powers, and with the special laws respe ting the registration of donations; for, according to section 254 and section 280 of the said code, they are invested with the function of pronouncing on the admissibility of registrations; and the registration, in the present case, even without referring to the law of the 25th January 1775, which perhaps may not be applicable herein, was at all events inadmissible, according to the prescriptions of Ordinance 1, IV. t. 62, on account of the donor's decease having already taken place. Though differences of opinion might possibly prevail with respect to the latter point, and though, in the case of the Viscount das Picoas, a decision was actually pronounced in a different sense, yet, notwithstanding this, on a closer examination of the case, even those lawyers who had formerly expressed such an opinion (viz, the Attorney-General Ottolini and his assistant, Rangel de Quadros) have retracted it, as may be seen by the unanimous declaration at the conference of 16th October 1850, and a single previous judgment, or precedent, which has been wrongly pronounced before, can not establish a rule for all cases to come, especially where a contradiction of distinct written laws is involved. The committee is of opinion that the grant of registration was justly refused by the administrative authorities. It would be of this opinion, even though, in the suit of Mr. Croft against the family of Barcellinhos, the judicial decisions had prescribed that registration to the administrative authorities, for, with the separation existing between the ordinary tribunals and the tribunals of administrative justice, according to the constitution of the Portuguese monarchy, the former are in no wise competent to prescribe to the latter the way in which they are to decide. On the contrary, the latter have only to proceed according to the legal regulations provided for them. When a court of justice has imposed on a party in a civil suit the duty of performing a certain act before the administrative authorities which, at the time when it is attempted, can, in pursuance of the regulations of the administrative authorities, no longer be done, then the act thus imposed has become an impossibility; but no blame can therefore be imputed to the administrative authorities. The fact is, however, that the legally valid judicial decisions never, in any way, imposed such a duty. The

authoritative decision of the court of appeal at Oporto, dated March 31, 1843, does not say at all that the registration of the donation is to take place either during the lifetime or after the decease of the Baron de Barcellinhos; but it merely says that were it not to take place, the marriage portion on the Baron's death would appear valid only so far as it did not exceed the legitimate share and the legal tax, and that any surplus would have to be recognized and returned as invalid. This meaning of the Oporto judgment is not only apparent from the wording thereof and from the opinions of the judges who pronounced it, but it is likewise unequivocally acknowledged by all the later judicial decisions (the decrees of the Lisbon court of appeal, dated March 12, 1844; of the Judge Novaes, dated July 15, 1850; of the Lisbon court of appeal, dated October 4, 1851, and the opinions upon which these decrees were formed), so that the assertion that the Oporto judgment pronounced a compulsory duty of registration at any time whatever, or even at a specified time-that is, after the death of the Baron-is not founded on fact. But that judgment, as well as all the subsequent judicial decisions, on the contrary, very properly left the question concerning the admissibility and the period of the registration solely to the application to be made to the administrative authorities, and the judgment there to be pronounced, confining itself to the declaration that if a registration were proved, the dowry would be legally valid to its whole amount, whereas, in the contrary case, the part exceeding the legitimate share, and the tax of the law, would be regarded as liable to be rescinded.

"The first of the two propositions must therefore be negatived, and this is no less the case in regard to the second proposition.

"For, even admitting that the administrative authorities who refused the patent were entirely wrong in doing so, nevertheless it could not be inferred that the Portuguese state was bound to make good any possible damage thereby occasioned to Mr. Croft. The acting administrative authorities, the municipal administrator (administrador do conselho) in first resort, the district council (conselho de districto) in second resort, and the council of state, on whose opinion the royal decree of the 4th December 1849 was issued in third resort, had to give a decision in a litigated case, and in this branch of their functions they act, not in the character of mere executors of the government's orders, but as actual authorities pronouncing the sentence of the law, such authorities existing according to the Portuguese constitution, likewise in the province of the administration. For when a certain class of legal questions, according to the provisions of this and of many other similar state constitutions, has been taken away from the ordinary courts of justice and assigned to a special jurisdiction instituted for such questions occurring in the administration, the exercise of this jurisdiction not the less involves an actual judicial activity, since its practice depends solely on the free and independent righteous convictions of the individuals legally entrusted with it, and not on obedience to superior orders; and from this it follows at once that it is impossible that the higher authorities of the government or of the state should be responsible for sentences pronounced by that jurisdiction. There can be no question here of the exceptional cases which, in the opinion of Vattel (II. 7, sec. 84), may justify the reclama