MR. UPHAM, United States' Commissioner:

In the able argument addressed to us by her Majesty's counsel, the British Agent, some stress has been laid on the decision of Sir William Scott (2 Dodson, 336), on a suit brought against the commander of the "Talbot" for the capture of the "John;" and that authority is considered as conclusive of this claim.

But, in that case, the learned judge expressly declined determining whether or not the claimant had a remedy elsewhere; he only decided, for reasons which he gives at length, that the captor should be personally exonerated.

In determining this question, he says: "I certainly go no further than the expressions used by me warrant, that this individual captor is not liable to this individual sufferer."

"That does not exclude a liability elsewhere, if it exists. Whether there be such a liability in the Government is a question I am not called upon to examine; I have neither the proper parties nor the evidence before me. It is sufficient to observe, upon that matter, that there may be such a liability; there, doubtless, would be, if the Government had not made due diligence in advertising the cessation of hostilities, in the quarters and at the periods stipulated, if that were practicable.

"Where property, captured after peace has taken effect, is lost by mere chance, without any fault on the part of the captor, whether an obligation is incurred to restore in value what has been taken away by mere misfortune, the terms of the contract have not specifically provided for; and just principle seems to point another way; that, however, is not the question before me for my decision."-(Schooner John, Beck, master, 2 Dodson, p. 336.)

This case conflicts with the opinion of the same learned judge in the "Mentor," 1 Robinson, p. 183. He there says, "that the seizure of a vessel is a belligerent right, which is not exercisable in time of peace. When there is peace, a seizure, jure belli, is a wrongful act, and the injured party is

entitled to restitution and compensation." He further says, "It is not so clear that the captor is liable to costs and damages, where peace has not been notified. The better opinion seems to be, that the captor is liable to costs and damages, and entitled to indemnification from his Government, whose duty it was to have given notice."

Both these cases sustain this point, that, when there is a want of due diligence in advertising the cessation of hostilities, the injured party is clearly entitled to indemnification; and Vattel says, also, "that those who shall, through their own fault, remain ignorant of the publication of the truce, would be bound to repair any damage they may have caused contrary to its tenor."-(Vattel, book 3, ch. 16.)

There seems to be no doubt that the principle, thus laid down, is correct. But what constitutes due diligence, under such circumstances, is a question at times of difficult determination. It is, therefore, exceedingly desirable that it should be settled by the parties in advance. Vattel says, in the same section, "in order as far as possible to avoid any difficulty" on this point, "it is usual with sovereigns, in their truces, as well as Treaties of Peace, to assign different periods for the cessation of hostilities according to the situation and distance of places."

The question then arises, whether this assignment of different periods for the cessation of hostilities, according to the situation and distance of places, was not designed by the parties to establish the time to be holden as reasonable notice within such limits. Such clearly is the ground assigned by Vattel for such provisions in treaties. What would be reasonable, can be determined just as well before the Treaty as after, and the whole tenor of the Treaty, in this case, goes to show that the Contracting Parties had this question in view, in establishing the various periods within which peace should take place in different localities.

The Treaty provides that "immediately after the ratification, orders shall be sent to the armies, squadrons, officers, subjects, and citizens of the two Powers, to cease from all hostilities; and, to prevent all causes of complaint which may

arise on account of prizes, which may be taken at sea after said ratification, it is reciprocally agreed, that all vessels and effects, which may be taken after the space of twelve days from the said ratification, upon all parts of the coast of North America, from the latitude of 23° north, to the latitude of 50° north, and as far eastward in the Atlantic Ocean as the 36° of west longitude from the meridian of Greenwich, shall be restored on each side: that the time shall be thirty days in all other parts of the Atlantic Ocean, north of the equator, and the same time for the British and Irish channels, for the Gulf of Mexico, and all parts of the West Indies; forty days for the North Seas, for the Baltic, and for all parts of the Mediterranean; sixty days for the Atlantic Ocean, south of the equator, as far as the latitude of the Cape of Good Hope; ninety days for every part of the world south of the equator, and one hundred and twenty days for all the other parts of the world without exception.-(United States' Statutes at Large, vol. 8, p. 219.)

These several periods were undoubtedly agreed upon as equivalent to notice that peace existed within the prescribed limits. It cannot be supposed that the contending parties designed to append to these periods a further indefinite, uncertain time, as to what should constitute due diligence in giving notice, or to restrain or limit the fact in its consequences, that peace should exist at the times named.

After the periods thus agreed upon, the obligation to cease from hostilities was imperative.

Such being the case, we have the true starting-point from which to consider the question of the respective rights of the parties. It is manifest that collisions might then occur without the imputation of any wilful wrong in the violation of the compact entered into. The injury would, however, exist, and the actual loss sustained should, on every principle of equity and justice, as well as of compact, be fully

met.

The stipulation was, therefore, entered into by the parties, that "all vessels and effects" that should be taken after the several times specified "should be restored." The

question then arises, what interpretation we shall place on this provision? Does it mean that vessels and effects captured shall be returned in specie, or that the identical property merely shall be returned, and where this has become impracticable that no restitution or satisfaction shall be had? I cannot believe that such was the intent of the parties.

They acknowledge themselves bound by a constructive notice of the peace, and it was their own fault that they did not take time enough, or did not use diligence enough, to give actual notice of the peace to their armies, squadrons, "to officers, subjects, and citizens," as was specially provided should be done by the Treaty.

Under such circumstances, the doctrine of Vattel, adopted by Sir William Scott, applies, "that those who through their own fault remain ignorant of the publication of the truce are bound to repair any damage they may have caused contrary to its tenor."

The party injured is in the same situation as a neutral whose vessel has been seized and destroyed as the property of a hostile power, where it is holden the neutral can only be justified by a full restitution in value.—(1 Wildman, vol. 2, p. 175.)

There is no other measure of damage that justly meets the requirements of the case. The treaty provides not only that "all vessels," but also "their effects," which may be taken, after a certain specified number of days, within certain described limits, shall be restored on either side. But if the effects of a vessel, consisting of provisions or other articles, are taken and consumed, or are otherwise disposed of, so they cannot be restored specifically, it will hardly be contended that no remuneration is to be made.

If this be so, the rule would equally follow in relation to the vessel. Restoration and restitution are synonymous. One meaning of the word "restore," as laid down by Webster, is, "to make restitution or satisfaction for a thing taken, by returning something else, or something of different value;" and this is the meaning which should be rightfully attached to the word in the Treaty.

I do not understand that this is, in reality, denied; but the position is taken by Great Britain in this case, that she is relieved from restoring the vessel, for the reason that it was subsequently cast away and lost by the act of God, and no one is accountable.

If the case can be brought within this principle the excuse might avail, but there are circumstances connected with it that preclude such defence. No one can plead the destruction of property as the act of God, who is wrongfully in the use and control of such property. He is a wrong doer from the outset; he has converted the property from the instant of possession, and the subsequent calamity which may happen, however inevitable it may be, is no excuse for its loss.

The "John" was in the rightful pursuit of a lawful voyage, at a time and place when peace existed by the express stipulations of the parties, after taking such period for notice as they held that the case required.

She had pursued her course northwardly some four or five hundred miles out from harbour, on her way to her destined port. She was there seized, placed under the charge of new men, and her course was directly reversed, until she was taken back to the West Indies, and through mismanagement, or misadventure, was run on shore and lost.

It may have been the ordinary accident of the seas, or may not; but, in any event, she was taken there without right, and subjected to risks to which she was not legally and justly liable. The plea that she was lost.by the act of God is not, under such circumstances, admissible. The vessel itself cannot be restored, but such compensation and restitution should be made as the nature of the case admits

of.

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In the argument, considerable stress has been laid on a quotation in Kent and Wheaton, said to be founded on Grotius, that where collisions arise, after peace exists, the governments are not amenable in damages, but it is their duty to restore what has been captured, but not destroyed." The citation from Grotius is, however, erroneous. He merely says, in the section referred to, that if any acts be done, in