And again.

The subjects of a neutral state have no right to appeal to their own state for a remedy against the erroneous sentence of an inferior court till they have appealed to the superior court, or to the several superior courts if there are more courts of this sort than one, and till the sentence has been confirmed in all of them. For these courts are so many means appointed by the state to which the captors belong to examine into their conduct; and till their conduct has been examined by all these means, the state's exclusive right of judging continues. (Id.)

Wheaton, (Lawrence's ed.,) p. 675, says that "the neutral has no ground of complaint" until the acts of the captors are confirmed by the sentences of the tribunals appointed by him to adjudicate in matters of prize, what he suffers being the inevitable result of the belligerent right of capture;" and cites Rutherforth at length in his text.

On the 7th March, 1862, Sir Roundell Palmer, solicitor-general, declared in a debate in Parliament that it was the ordinary law of nations, than which" nothing is better known," that the neutral must not interfere except by appeal, if the first decision in prize is deemed wrong. (Law. Wheat., 680 n.)

An English commission in 1753, in a report concerning reprisals by Prussia for captures by Great Britain, said, concerning adjudications in prize, "If no appeal is offered, it is an acknowledgment of the justice of the sentence by the parties themselves, and conclusive." (Wheat., Hist. Law of Nations, 210; see also, Wheat., Int. Law, (Lawr., 678.) Wildman seems to adopt this language as expressive of the rule of international law. (Inst., vol. 1, p. 353.)

Governor Lawrence, the learned editor of Wheaton, in a letter of date May 21, 1871, published in the World newspaper, concerning this very treaty, before its ratification by the American Senate, speaking of this commission and the character of claims which it could allow consistently with principles of public law, said:

So far as regards maritime prizes, it is a well-recognized principle that no claim can be made on the government of the captor till all the remedies provided through the prize courts have been exhausted. (Pamphlet, pp. 28, 29; see also, Law's note 66, to Wheat., Int. Law, 189.)

Opposed to this uniform and unbroken current of authority, English and American, Her Britannic Majesty's counsel cites only a single case, which it is urged should ontweigh all the text-writers. The case cited (bark Jones-American and British commission under treaty of 1853, p. 83,) was not a prize of war. It was a capture of a supposed slave-trader made under British statutes. The capture was made at St. Helena, where there was a court of record having jurisdiction, but the vessel was taken to Sierra Leon, a distance of one thousand miles, for adjudication. She was acquitted of the charge, and it was adjudged that there was no probable cause for seizure. But the court assessed her with costs for "resistance of the master to fair inquiry"—a personal matter of which the court had no cognizance under the statute. There was no appeal. These are the circumstances under which Judge Upham was of opinion that the owner was not bound to take an appeal. He seems to have deemed the judgment for costs coram non judice and utterly void. It further appears that the master did not know where to follow his vessel, and was deprived of all means of following it, (p. 101.) He did not ap

pear in court. How could he if such were the facts? Judge Upham, the American commissioner, might well hold that under such circumstances an appeal was not necessary to perfect the right of the American Government to demand redress.

The opinion of Judge Upham seems to imply that in the absence of special circumstances an appeal would be necesaary.

The opinion of Mr. Hornby, British commissioner, is silent upon the question of appeal; and indeed it is difficult to see, from his opinion, (p. 107,) upon what ground he could have consented to award any dam ages unless it was that claimed by Judge Upham-that the court had no jurisdiction under the statute to adjudge costs against the vessel for the alleged personal misconduct of the master. He was willing to allow for detention of the vessel and damages to her, and sacrifice on cargo.

The umpire expressed no opinion upon the question of appeal.

The case was peculiar, and I do not deem it an authority applicable to the general question under consideration. General rules can never safely rest upon the precedents of exceptional or hard cases. That there should be some exceptions to the general rule as I deem it to be, I have no doubt. For instance, if, as in the case of the Jones, an appeal was rendered very difficult or impossible, or was embarrassed, by the act of the captors; or if previous appeals in similar cases had shown that the appellate tribunal of last resort did not govern itself by international law, thus indicating that an appeal would have been useless, or if it had been waived by the government of the captor, I would hesitate long before holding that appeal was necessary to lay the foundation for an international claim.

But it is suggested that the text-writers cited are considering only the grounds of war or reprisals, and not the causes adequate to justify a claim for indemnity by one nation against another. I can only say that I think this is a mistake. Besides, their reasoning, if correct, is absolutely conclusive against both. If, as Rutherford asserts, "natural equity will not allow that the state should be answerable," or "if the subjects of the neutral state have no right to appeal to their own state for a remedy against the erroneous sentence;" or if, according to Wheaton, "the neutral has no ground of complaint," and what he suffers is only "the inevitable result of the belligerent right of capture;" or if, according to Wildman, a failure to appeal is "an acknowledgment of the justice of the sentence;" or if, according to Lawrence, "no claim can be made on the government of the captor," then I know not upon what ground it can be held that these claims can be sustained upon the facts as alleged.

But reprisals are justified by the public law for refusal to repair an injury, and when it is admitted that reprisals cannot be made, it is thereby confessed that there is no just international demand.

Granted a just claim or injury recognized by the public law, then by that law the state aggrieved is the exclusive judge of the mode of redress. The note of Mr. Seward of December 22, 1862, concerning the case of the Will-o'-the-Wisp, (No. 378, p. 30,) has been referred to. either a waiver of appeal in that case, or the expression of an opinion that an appeal was not necessary? That note does not stand alone. The reply of Lord Lyons (pp. 30, 31) seems to recognize that as a matter of right the United States might stand on the absence of an appeal; but it makes an appeal to the magnanimity of the American Govern ment in the particular case. Mr. Seward's answer thereto of April 2, 1863, gives distinct notice that the appeal is not waived, and that it is deemed necessary before the executive government can be called upon to consider the subject.

M.

Mr. Commissioner Frazer's opinion in the " Rio Grande" cases. (See p. 110, ante.)

1. The remarks made in the general argument for the claimants urging that claims of this character were intended to be referred to this commission by Article XII of the treaty, seem unnecessary, inasmuch as our jurisdiction of the cases is not questioned, and cannot be.

If it is intended to infer that there must be an award of damages, from the fact that there is jurisdiction, I cannot admit the inference. Jurisdiction is merely the power to hear and decide, and necessarily involves the duty of deciding favorably or adversely as the circumstances shall warrant.

2. In like manner the somewhat extended remarks of the general argument to establish that bona fide trade with the Mexican port of Matamoras was not a violation of the blockade, and could not lawfully be reached by the blockade, may be put out of the case. No such thing was ever, for a moment, pretended by the United States. If, however, it is intended to suggest the inference that damages must be awarded for these captures because it was adjudged that these vessels were in fact engaged in that bona fide trade, then I deny the inference. The reason is a good one for discharging the vessel, but it has little to do with the question whether damages should be given. That depends upon the inquiry, was there good apparent cause for making the capture.

3. In view of the instructions to the blockading fleets, (satisfactory to Lord Russell,) of the contemporaneous disavowals of Mr. Seward, and of the uniform decisions of the American prize courts, there is no warrant for the assumption (p. 21) that "these captures were intended to affect the trade between Great Britain and Mexico."

4. The doctrine that this commission may, by its decisious, disregard the law of nations, in deference to whatever undefined notions of "equity and justice" the several members of the commission may happen to entertain from time to time, is to me a very great surprise. It brings to mind the remark of an eminent English law judge, resisting the estab lishment of the jurisdiction of the courts of equity in that country, to the effect that decisions in equity depended upon the individual conscience of whosoever happened to be chancellor, and were therefore as uncertain as the length of the chancellor's arm or foot! From such equity as that he might well have wished the deliverance of his country. The injustice of his reproach is, however, seen in the fact that "equity follows the law"-abides by it-not only obeys but maintains it, and administers justice according to a system of known and established principles sanctioned by precedent; that it does not depend upon the individual conscience of the judge.

What is the law of nations which it is insisted this commission may disregard? All definitions of it are in accord, substantially, and none of them better than Blackstone's, "that which regulates the conduct and mutual intercourse of independent states with each other by reason and natural justice." It is the natural law applied to nations in their relations with each other, so far as they have consented that it shall be thus applied. It is wanting in some of the essentials of strict law, however; it is not prescribed by a common superior, and its only sanction is the public opinion of Christendom. Nor is it a complete code having an established rule for all questions that may arise. It is

yet in the period of its growth; but whenever it does speak it utters the rule which the wisdom of the nations has by common consent found to be most in consonance with reason and natural justice. When it gives a rule for the government of a given case, it furnishes the full measure of international obligation in that case-is the only standard by which conduct in that case can be properly tested. In other words, it ascertains what is "equity and justice" between nations.

If seeking to pay a compliment to the eminent men who negotiated the treaty, I think one would hardly choose to say, "they authorized the mixed commission at will to substitute for the rules of right which have been sanctioned by all Christian powers and the courts of both countries the individual notions of the Commissioners thereafter to be chosen."

The application sought of the proposition alluded to is, in substance, that, though the facts before the prize-court fully justified its judgments, according to the international law as even the British courts would themselves declare it to-day, yet this commission may, upon some imaginary ground of equity, be bound nevertheless to award damages! I can only say that no such result can occur here, except over the most emphatic and decided dissent with which I can oppose it.

The Science (No. 391) was found at anchor in the roadstead outside the mouth of the Rio Grande, within less than a marine league of the Texas shore, which was blockaded. Her outward cargo, then discharged, had consisted in part of confederate grey cloth, (290 bales.) She was, in fact, consigned to Matamoras, and really had discharged her cargo there. Matamoras was forty miles up the river. The Texas shore was accessible and less than two and a half miles distant. Captured November 5, 1863; had been there since August 12.

The Dashing Wave (No. 395) was found at anchor near the Science, but further within American waters. No part of her cargo was war material. There were, however, two boxes (£12,000) of gold coin, £7,000 of which belonged to one Caldwell, whose nationality was unknown, but it is evident he was not British. It appeared from papers on board that at his request Lizardi & Co., British merchants, shipped it as theirs, the bill of lading (p. 193) containing the unusual recital that it was "all British property." She had discharged no part of her cargo. Caldwell had requested this shipment to be made by Lizardi & Co., as their property, in their name, with £5,000 to be advanced by them to him, if their consignee at Matamoras approved of proposed investments of it. He had specially requested that it be insured, "including the war risk," (p. 200.) She was, in fact, bound for Matamoras.

Caldwell made no claim, but a claim was made on behalf of Lizardi & Co. for the whole £12,000, averring that "no other persons are interested therein," and sworn to by their attorney. Also, in the same behalf and to the same broad extent, by Armando Brothers, to whom the consignee had indorsed the bill of lading.

The Volant (No. 388) was captured in American waters, the same as the Science and Dashing Wave, loaded by same brokers who loaded the Science, and had confederate gray cloth, (15 bales,) being balance of invoice sent by Science. The remainder of her cargo was blankets, shoes, and woolen stockings, and brandy. She had not discharged her cargo. The invoice on board described the cloth (p. 73) as four bales blue mixed, one dark mixed, ten sky blue. It seems that the whole was mixed, no sky blue whatever. The manifest showed boots, but no shoes. The Sir William Peel (No. 243) was captured at the mouth of the Rio Grande, in Mexican waters. She had been there about three months.

Her cargo, as per manifest, had been mostly discharged at Matamoras, and she had taken 904 bales of cotton, part of her return cargo. She had two 25-pound guns mounted, considerable ammunition, small arms, tomahawks, cutlasses, &c., for boarding, engines six feet below water line. Burden, 1,044 tons. Signal lights were on her at night.

A confederate officer, it was sworn, claimed to have received arms from her, landed on the coast of Texas at night; and this was not contradicted, though there was opportunity. There is other strong inculpatory evidence, which is, however, contradicted; tending to show both the inward and outward cargoes to have been confederate property.

The question in all these cases is, whether or not there was probable cause for capture. The cargo of each of them was adapted to the Texan market; and there is little doubt that it was expected ultimately to find sale there, whether first to enter into the general stock of Matamoras, or merely to observe the form of passing through that place in transit to Texas.

It seems from the evidence that merchandise unladen at the mouth of the Rio Grande for Matamoras was conveyed to the latter place either in small steamers by the river, or in wagons by land. It seems, also, that this land transportation by wagons was likewise practicable on the Texas side from the coast at the mouth of the river.

It was a matter of notoriety that enormous supplies of military as well as other goods for consumption in the confederacy had been introduced through Texas direct, until the blockade of that coast was made effective, and afterwards through Matamoras. It was equally notorious that there was in Texas a great demand for such goods when these vessels were seized; and that it was the policy of the rebel authorities to ship cotton abroad rather than sell it at home.

These considerations are mentioned to show the strong temptations which existed to introduce goods, and especially arms and ammunition, (which could not go through Matamoras,) into Texas direct. And if accomplished it would avoid Mexican custom-house scrutiny, duties, charges and detentions, and all the inconveniences which flow from circuitous and indirect methods.

Inasmuch as watchful Federal cruisers were present almost constantly any attempt by day to put goods upon the Texas shore would have been too hazardous for probable success. If done at all, it must have been under cover of darkness, and in small quantities at a time, and by the use of small boats. This would consume time, and would be greatly facilitated by nearness of the ship to the Texas shore.

"The Science." The foregoing observations apply in all these cases. With a burden of only 300 tons, the length of her visit (nearly three months) was of itself remarkable. She had the strong temptation to violate the blockade, and she had placed herself so near the Texas shore that she had the opportunity to do it. These circumstances of suspicion she created, and did not explain. If a ship may thus put herself so near a blockaded shore for months, where, under cover of the night, she can land her cargo upon it, and this without any peril or cause of suspicion, then, indeed, the right of blockade is less valuable to a belligerent than I believe it to be.

I am thus led to the conclusion, not merely that the judgment of the Supreme Court in the case of the Science was not clearly wrong, but that that judgment was clearly right.

"The Dashing Wave." The foregoing remarks apply with equal force to the case of the Dashing Wave, except that she had but recently arrived at the place where she was seized; and in this case there is superadded