commerce, is the problem to be solved in the interest of preserving peace with the neutrals, and restricting the war to the original belligerents.

The solution arrived at, and firmly and wisely established, covers the three grounds of (1) neutral trade with ports of the enemy under actual blockade; (2) visitation and search of neutral ships to verify the property, in ship and cargo, as being really neutral; (3) the interception and condemnation of contraband of war, though really of neutral ownership and though not bound to a blockaded port. It is with the last only that we have to deal.

There were but three modes in which the consent of nations, could dispose of this question of contraband trade. First, It might have been proscribed as hostile, and, therefore, criminal, involving the nation suffering or permitting it, or not using due diligence to prevent it, in complicity with and responsibility for it. This has been contended for as the true principle by able publicists, but has not obtained the consent of nations. Second, It might have been pronounced as free from belligerent control as all other neutral commerce, submitting only to verification as really neutral in ownership, and to exclusion only from blockaded ports. This has been contended for, but has not been accepted.

The only other disposition of this conflict of rights and interests at all reasonable is that which has been actually accepted and now constitutes a rule of the law of nations. This limits the right of the belligerent, and the exposure of the neutral, to the prevention of the trade in contraband by warlike force for capture, and prize jurisdiction for forfeiture. Manifestly, the natural, perhaps the necessary, limit of this right and exposure, by the very terms of the rule itself, would be flagrante delicto or during the guilty voyage. To go beyond this would, in principle, depart from the reason of the actual rule and carry you to the ground of this trade being a hostile act in the sense in which the consent of nations has refused so to regard it. But, to adhere to the principle on which the rule stands and attempt to carry its application beyond the period of perpetration, would involve practical difficulties wholly insurmountable, and encroachments upon innocent neutral commerce wholly insupportable. How could you pursue the contraband merchandise itself in its subsequent passage, through the distributive processes of trade, into innocent neutral hands? But, while it remained in belligerent hands, it needs no other fact to expose it to belligerent operations, irrespective of its character or origin. Again, how can you affect the vessel which has been the guilty vehicle of the contraband merchandise in a former voyage, with a permanent exposure to belligerent force for the original delict, without subjecting general neutral trade to inflictions, which are in the nature of forcible punishment, by the belligerent of the neutral nation, as for hostile acts exposing the neutral nation to this general punitive harassment of its trade?

It will, we think, be readily seen that this analogy to contraband trade, as giving the measure of the endurance of the responsibility of Great Britain for the hostile expedition of the Florida, is but a subtle form of the general argument, that the outfit of the Florida was but a dealing in contraband of war, and was to carry no other consequence of responsibility than the law of nations affixed to that dealing. But this argument has been suppressed by the Rules of the Treaty, and need be no further considered.

II. The criticism on the celebrated judgment of Chief Justice Marshall, in the case of the Gran Para, does not seem to shake its force as authoritative upon the precise point under discussion, to wit, whether a visit to a belligerent port terminated the neutral's duty and responsi

bility in respect of a vessel which, in its origin and previous character, lay at the neutral's charge. It is not profitable to consider the special distinctions which may be drawn between the facts of the Gran Para and of the Florida in this respect. If it is supposed that other circumstances than the mere visit of the Florida to a Confederate port divested her of being any longer an instrument of rebel maritime war, furnished from the neutral nation, we fail to find in the evidence any support to such suggestions. Certainly, the fact, if it existed or was shown by any definite evidence, of the fluctuating element of actual hostilities, or navigation in the presence on board of substituted or added seamen, does not divest the cruiser, its armament, its munitions, and its setting forth to take and keep the seas, of their British origin and British responsibility. These all continued up to the violation of the blockade, which they enabled the Florida to make. They equally enabled it to take and to use in the hostile cruise the enlistments at Mobile. Yet, if there be anything in the learned Counsel's argument, it comes to this: that the seamen enlisted at Mobile became, thereafter, the effective maritime war of the Florida, and the cruiser and her warlike and navigable qualities "suffered a sea change," which divested them of all British character and responsibility. This reasoning is an inversion of the proposition, Omne principale ad se trahit accessorium.

III. As a matter of fact, the evidence concerning what happened at Mobile by no means exhibits the crew with which the Florida left Mobile as original enlistments there. The force she took from Nassau, and which enabled her to make the port of Mobile, must have adhered to her. All the motives for such adherence continued in full force, and in a port without ships or trade, and so absolutely closed as Mobile was, there was no possible chance for them, as seamen, except to adhere to the Florida. The evidence does not contain any shipping articles, either at Nassau or at Mobile, and the list made by, or for verification by, Thomson at Liverpool, in reference to prosecutions under the Foreign-Enlistment Act, was made only in reference to nationality and the place where, within Thomson's knowledge, (who did first join her at Mobile,) he found them connected with the Florida. Very possibly a form of enlistment or engagement, as from Mobile as the place of departure, if they could ever get out, for the purposes of wages or otherwise, may have been gone through at Mobile, though it is not so proved. A perusal of Thomson's affidavit will show that it, and the accompanying list, relate only to crew dating on the cruise from Mobile, or from later recruitment, and that he imports to give no evidence that there were not re-enlistments at Mobile of her former crew, except in his own case, or by incidental inference, perhaps, in some others.

IV. The learned Counsel diverges, as it seems to us, from the point open for discussion into a somewhat vague inquiry as to what should be the consequences in respect of indemnity to the United States, from the responsibility of Great Britain for the violations of her obligations as established by the three Rules of the Treaty, if the Tribunal should find Great Britain so responsible.

We have considered this subject in our Argument, submitted on the 15th of June, and need not renew that discussion unless it is required from us. Of course minute and artificial reasoning may attempt to make out that the last man essential to a crew for navigation or fighting, or the last rope or spar which she could not spare, was the guilty cause of all a cruiser's subsequent depredations, and that all preceding structure, fitment, armament, munitions, officers, and men, are absolved from any share of the guilt. This reasoning may point the wit of the

proverb that "it is the last ounce that breaks the camel's back,” but will not go much further. The response is too immediate. What preceded is what gives the place and power for the casual incorporation of the new atom, and the preceding preparations laid foundation for these casual and fluctuating elements of prosperous war, and thereby, as well as directly, for the war itself. Again we have only need to repeat, "Omne principale ad se trahit accessorium." The provisions of the Treaty plainly indicate what the responsibility for indemnity should be if the responsibility for fault be established.

C. CUSHING

WM. M. EVARTS.
M. R. WAITE.

XI.—ARGUMENT OF SIR ROUNDELL PALMER ON THE CLAIM OF THE UNITED STATES FOR INTEREST BY WAY OF DAMAGES.

1. The question of the allowance of interest on the sums claimed in respect of their alleged losses by the United States, is one of grave importance, both in principle and in amount. It has not hitherto been discussed, with any precision or fullness, by either party. By Great Britain this demand has been simply demurred to in principle; it was thought premature to enter into any detailed argument on that subject until some liability should have been established, which would properly raise the question. The United States, in their Argument, presented on the 15th of June, have suggested (paragraphs 484-'5) some reasons why, if a gross sum is awarded, "interest" should be "awarded by the Tribunal as an element of the damage;" but these reasons are very short and vague, and no attempt has been made to develop them in such a manner as to be of any real assistance to the Tribunal.

2. It is necessary to bear in mind what it is which the Tribunal has power to do in this matter. Under the seventh Article of the Treaty, on finding that Great Britain has failed to fulfill any of the duties previously mentioned, in respect of any of the vessels, the Tribunal "may, if it think proper, proceed to award a sum in gross to be paid by Great Britain to the United States for all the claims referred to it." If it does not award a sum in gross under this Article, the duty of examining and of ascertaining and determining the validity of all the claims brought forward, and "what amount or amounts shall be paid by Great Britain to the United States on account of the liability as to each vessel, according to the extent of such liability as decided by the Arbitrators," will devolve upon Assessors, under the tenth Article.

It may be that the Tribunal has power to decide, if it should think it right and just to do so, that on all or some part of the principal amounts of the losses for which Great Britain may be found liable, when ascertained and determined by Assessors in the manner provided by the tenth Article, Great Britain should further be liable to pay interest at some rate or rates to be fixed, which interest would, in that case, have to be computed by the Assessors, and would be included in the sum or sums finally ascertained and determined by them as payable by Great Britain. But it is indisputable, on the other hand, that, under the ninth Article, the Tribunal has no power to direct any interest to be paid upon any gross sum which they may think fit to award. It is one gross sum only, to be paid in coin within twelve months after the date of the award, which they have power to allow. The Counsel for the United States appear to be sensible of this, when they assume in the passage of their Argument already quoted (page 484) that "interest will be awarded by the Tribunal, as an element of the damage;” the meaning of which evidently is, that they ask the Tribunal, when fixing the amount of the gross sum (if any) which they may award to be paid, to take into consideration, and to include in such gross sum, (among other "elements of damage,") some allowance in respect of interest upon the losses for which Great Britain is held responsible.

3. When attention is directed to the nature of the process by which only the Arbitrators can arrive at any gross sum to be awarded against Great Britain, and to the materials or "ele. ents" available to them for the purposes of such an award, it will be clearly seen that they cannot, without disregarding every principle on which the doctrine of interest ordinarily rests, make any such allowance. Instead of being "conformable to public law," and "required by permanent considerations of equity and justice," this demand can be demonstrated without difficulty to be just the reverse. The proofs, however, of this proposition will be better understood if, in the first instance, we ascertain the rules of civil jurisprudence, applicable to the subject of interest.

4. Putting aside those cases in which the liability of an individual to pay interest rests upon an express or implied contract, or upon positive legislation, it may be stated generally, that interest, in the proper sense of that word, can only be allowed where there is a principal debt, of liquidated and ascertained amount, detained and withheld by the debtor from the creditor after the time when it was absolutely due, and ought to have been paid, the fault of the delay in payment resting with the debtor; or where the debtor has wrongfully taken possession of, and exercised dominion over, the property of the creditor.

In the former case, from the time when the debt ought to have been paid, the debtor has had the use of the creditor's money, and may justly be presumed to have employed it for his own profit and advantage. He has thus made a gain, corresponding with the loss which the creditor has sustained by being deprived during the same period of time of the use of his money; and it is evidently just that he should account to the creditor for the interest, which the law takes as the measure of this reciprocal gain and loss. In the latter case the principle is exactly the same; it is, ordinarily, to be presumed that the person who has wrongfully taken possession of the property of another has enjoyed the fruits of it; and if, instead of this, he has destroyed it, or kept it unproductive, it is still just to hold him responsible for interest on its value, because his own acts, after the time when he assumed control over it, are the causes why it has remained unfruitful.

In all these cases it is the actual or virtual possession of the money or property belonging to another, which is the foundation of the liability to interest. The person liable is either lucratus by the detention of what is not his own, or is justly accountable, as if he were so.

5. The rules of the Roman law, as to interest for non-payment of a debt due upon contract, are in strict accordance with the above statement: "In bonæ fidei contractibus, usuræ ex morâ debentur." (Digest, lib. 32, § 2; lib. 17, § 3.) "Interest," says Domat, (lib. 3, tit. 5, § 1,) "is the name applied to the compensation which the law gives to the creditor, who is entitled to recover a sum of money from his debtor in default.” (Cited in Sedgwick on Damages, page 234.)

The Code Civil of France in like manner (lib. 3, tit. 3, "Contrats et Obligations," Art. 1146) provides that "les dominages et intérêts," (which, in the absence of a stipulated amount between the parties, are limited, by Art. 1153, to the rate of interest fixed by law,) "ne sont dûs que lorsque le débiteur est en demeure de remplir une obligation ;" and Art. 1139 defines the meaning of this expression: "Le débiteur est constitué en demeure, soit par une sommation, ou par autre acte équivalent, soit par l'effet de la convention, lorsqu'elle porte que, sans qu'il soit besoin d'acte, et par la seule échéance du terme, le débiteur sera en demeure." The laws of Great Britain and America recognize the same principles.

6. Mr. Sedgwick, an American author, whose work "On the Measure