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. 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 "elements" 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 of Damages" is highly esteemed, and of frequent reference in the courts. of Great Britain, as well as in those of the United States, has a chapter (XV) on " Interest with reference to Damages." At page 373 he says: The allowance or infliction of interest often presents itself entirely disconnected from any question of contract; and, in this aspect, the subject cannot be omitted in any work which treats of compensation, for it is to be observed generally, to use the language of Lord Kenyon, that where interest is intended to be given, it forms part of the damages assessed by the jury, or by those who are substituted in their place by the parties. The subject of interest is susceptible of very clearly defined division: .first, where it can be claimed as a right, either because there is an express contract to pay it, or because it is recoverable as damages which the party is legally bound to pay for the detention of money or property improperly withheld; second, where it is imposed to punish negligence, tortious, or fraudulent conduct. In the first case it is recoverable as matter of law. In the second case it rests entirely in the pleasure of the jury. He then states the rules of the English law, that "all contracts to pay undoubtedly give a right to interest from the time when the principal ought to be paid ;" and that "where money is due, without any definite time of payment, and there is no contract, express or implied, that interest shall be paid, the English rule, independent of statute, is, that it cannot be claimed."1 This latter rule does not appear to be adopted in the greater number of the United States. "There is," says Mr. Sedgwick, “considerable conflict and contradiction between the English and American cases on this subject. But, as a general thing, it may be said that while the tribunals of the former country restrict themselves generally to those cases where an agreement to pay interest can be proved or inferred, the courts of the United States, on the other hand, have shown themselves more liberally disposed, making the allowance of interest more nearly to depend upon the equity of the case, and not requiring an express or implied promise to sustain the claim. The leading difference seems to grow out of a different consideration of the nature of the money. The American cases look upon the interest as the necessary incident, the natural growth, of the money, and, therefore, incline to give it with the principal; while the English treat it as something distinct and independent, and only to be had by virtue of some positive agreement." 2 The American rules for the application of the principles recognized in their courts were thus stated by the Chief Justice of New York, in a case in which the whole subject was carefully examined: From an examination of the cases, it seems that interest is allowed: (1) Upon a special agreement; (2) Upon an implied promise to pay it; and this may arise from usage between the parties or usage of a particular trade; (3) When money is withheld against the will of the owner; (4) By way of punishment, for any illegal conversion or use of another's property; (5) Úpon advances of money.3 In Connecticut, similar propositions were laid down: (1) Interest will be allowed, when there is an express contract to pay it; (2) Such contract may be inferred from usage, special or general; (3) Where there is a contract to pay money on a day certain, and the agreement is broken, interest will be allowed by way of damages, as on notes, &c.; (4) When goods are sold, to be paid for on a day certain, interest, in like manner, follows; (5) Where money is received for the use of another, and there is neglect in not paying it, interest follows; (6) Where money is obtained by fraud, interest is allowed; (7) Where an account is liquidated and balance ascertained, interest begins to run; (8) Where goods are delivered to be paid for, not at a day certain, but in a reasonable time, and there is unreasonable delay, interest is allowed; (9) But where there are current accounts, founded on mutual dealings, and no promise to pay interest, interest will not be allowed.4 With respect to the fraudulent detention of money, the rule acted upon as to interest by the courts of America generally is the same with that which now prevails in the English courts of equity. "Where money "On the Measure of Damages,' p. 376. 3 Page 380. L |