that, as against the losses which they paid, they received the benefit of the enormous war-premiums which ruled at that time; and that these were the risks against which they indemnified themselves (and, it cannot be doubted, so as make their business profitable upon the whole) by those extraordinary premiums. Would it be equitable now to re imburse them, not only the amount of all these losses, but interest thereon, without taking into account any part of the profits which they so received?

16. These remarks would hold good if an exact valuation of the claims were possible; but, before this Tribunal, neither an exact valuation of any part of these claims, nor any approximation to such a valuation, is possible. This consideration alone ought to be decisive against the demand of interest, as an element of damages, in any gross sum to be awarded by the Tribunal.

When this is held to be admissible in private jurisprudence, the estimate or computation of the amount to be added for interest is always founded upon some appropriate evidence, by which the Jury or the. Court is enabled to fix a definite sum as the value of the principal subject for which compensation is due. Before interest can be computed, whether as a legal incident of a liquidated debt, or as an element in damages previously unliquidated, the principal sum must be known; and this, not by conjecture, not by accepting, without proof in detail, the amount at which the interested party may choose to state his own claim, (almost always excessive and exorbitant, and, as a general rule, purposely so overstated, in order to leave a very wide margin for a profit after all probable deductions,) nor by any merely arbitrary modification of that amount, but by such vouchers and proofs as, after the opposite party has had the opportunity of seeing and checking them, are deemed satisfactory. Where such vouchers and proofs are absent, or cannot be satisfactorily tested, all foundation for an allowance of interest, as an element of damages, necessarily fails.

17. In the present case, not only is it altogether impossible to ascertain, either accurately or proximately, any sum which can be taken by the Tribunal as representing the principal amount of the losses, for which Great Britain ought to be held responsible; but the figures which have been laid before the Tribunal on both sides show in a very significant manner what great injustice might be inadvertently done, and how largely any just measure of compensation or indemnity might be exceeded, if the Tribunal were either to assume some amount, arbitrarily fixed, as representing the principal of those losses, and then to add interest on that amount; or were, without any such attempt at exactness, to swell, by some undefined and arbitrary addition under the notion of providing for interest, an award for a gross sum, founded on no distinct elements admitting of any computation. It does not require much attention to the particulars of the claims to see that they have been intentionally so stated, as to leave not only a wide margin for all those deductions, which the criticism of Great Britain might prove to be necessary, but ample room, after every such deduction has been made, for a large and full compensation and indemnity, without any further addition whatever. The British criticisms cannot and do not attempt more than to cut off manifest exaggerations of those claims, either by demonstrating the inadmissibility in principle of some of them, (e. g., the double claims, and the prospective earnings,) or by showing that others (e. g., the claim for gross freights) must, on principle, be reduced by manifestly necessary deductions, or by appealing to the known and ascertained values of shipping, &c., of the same classes before the

war, as a standard of comparison to which estimates of losses, manifestly excessive, may be referred. But when the fullest effect has been given to all these criticisms, the remaining claims continue unvouched and untested, under circumstances in which every really doubtful and uncertain question of actual value is practically taken for granted, even by the reduced British estimate, in the claimant's favor.

18. In illustration and proof of the preceding observations, the following important extract from the Report of Messrs. Cohen and Young, appended to the British Argument or Summary, (pp. 46-47,) containing matters, not of opinion, but of fact, which the Arbitrators may verify for themselves merely by referring to the several documents in which the claims of the United States have been at different times stated, is here subjoined:

"It will be useful," they say, "to make some observations which present themselves on comparing, with the 'Revised Statement,' the original list of claims which was sent by Mr. Seward to Mr. Adams in August, 1866, and also the extension of this, as presented by the Presitlent to the House of Representatives in April, 1869, and which are to be found in the fourth volume of The Correspondence concerning Claims against Great Britain transmitted to the Senate of the United States.'

"These lists of claims not only strongly confirm the opinion we expressed in our First Report, that the estimate we there made of the value of the vessels was probably a very liberal one, but also show in a remarkable manner how, since the year 1866, the claimants have in most cases enormously increased their estimate of the losses alleged to have been sustained by them.

"We will cite some of the more striking instances-calling the list of claims sent to Mr. Adams the Original List,' the List presented to the House of Representatives the 'United States Amended List,' the Statement, on which we have already reported, the 'Former Statement,' and the Revised List of Claims2 on which we are now reporting the 'Revised Statement.'

"The Alert. The claim as stated in the 'Original List' amounted to $57,859; in the 'Revised Statement' (p. 1) it amounts to $202,726. In the Original List' there was a claim of $30,000 for interruption of voyage;' but now, in addition to that amount, there is claimed a sum of $144,869 for prospective earnings.'

6

"The Anna Schmidt.-This vessel was in the Original List' valued at $30,000, which is somewhat less than the average valuation we have allowed in proportion to her tonnage, but in the 'Revised Statement' (p. 13) the sum claimed in respect of the vessel is double that amount.

"The Golden Eagle.-In the 'Original List' the owners claimed for the vessel $36,000, and for freight $26,000. Our average estimate in proportion to her tonnage was about $45,000. In the 'Revised Statement' (p. 40) the owners claim $86,000 for vessel and freight, thus increasing their claim by nearly 50 per cent.

"The Highlander.-She was a vessel of 1,049 tons, and was in ballast. In the 'Original. List' two insurance companies advanced claims for insurances to the extent of $30,000, which was probably about the value of the vessel; but in the 'Revised Statement' (p. 46) the owners put forward an additional claim for the ship to the extent of $84,000 This claim is, however, far less extravagant than the claim for freight, which in the 'Original List' amounted to $6,000; whereas in the 'Revised Statement' it exceeds $68,000, and is advanced without any deduction whatever, although the ship was in ballast at the time of her capture. It will be found that at pages 6 and 27 of our First Report we have specially commented on the character and extent of the extraordinary demands put forward in respect of this vessel.

"The Ocean Rover.-In the Original List' the owners claimed $10,400 for value of ship, loss of oil on board, and damages for breaking up of voyage. The claims now advanced in the Revised Statement' (p. 68) in respect of the same losses exceed $193,000, the difference between the original claim and the more recent one being made up entirely of double claims for single losses.'

"The Kate Cory.-In the 'Original List' the owners claimed $27,800 for the value of the brig, outfit, and oil on board, and there was also a claim of $1,820 for the value of reasonable prospective catch of oil. In the 'Revised Statement' (p. 51) the amounts insured have, as usual, been added to the claims by the owners, and there has been inserted a claim of $19,293 for loss of prospective catch, so that the original claim for $29,620 has grown to $56,474.

"The Lafayette No. 2.-In the 'Original List' the owners valued the ship and outfit

Presented with the American Case, on December 15, 1871.

2 Presented with the American Counter Case, on April 15, 1872.

at $24,000, which is less than our average valuation according to her tonnage; and the secured earnings at $10,475; but in the Revised Statement' (p. 55) the claim put forward in respect of ship and outfit and secured earnings is more than $89,000; and the prospective earnings, which were in the Original List' valued at $33,446, are now estimated at a sum exceeding $50,000. The original claim for $69,471 has grown to $141,858.

"The Rockingham.-The claim in the 'Original List' amounted to $105,000, whereas the claim in the 'Revised Statement' (p. 74) exceeds $225,000. This is also one of the vessels which we selected in our First Report (page 23) as a striking example of the exorbitant nature of some of the claims. There can be no doubt that the original claim was very extravagant, but in the Revised Statement' it has been doubled by improperly adding the insurances to the alleged values.

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The Union Jack.-In the "Original List" it is stated that G. Potter, after deducting the amount received from the Atlantic Insurance Company, claims the sum of $7,584; but in the "Revised Statement" (p. 111) he claims the sum of $34,526, without making any deduction for insurances, although the insurance companies at the same time claim $32,014 in respect of the amount insured by them; and it therefore clearly follows that a sum, at any rate exceeding $26,000, is claimed twice over.

The Catherine.-In the "Original List" the owners claimed about $45,000 for vessels and secured earnings, but made no claim in respect of prospective earnings. Now, in the "Revised Statement," (p. 229,) there is a claim put forward of $35,329 for loss of vessel and cargo, over and above $31,676, the alleged amount of insurances by the owners, which is also at the same time claimed by the insurance company. In addition to this there is a claim for prospective earnings exceeding $19,600, so that the original claim of $45,805 has now grown to the enormous sum of $272,108.

The Favourite.-She was a bark of 393 tons. In the "Original List" the Atlantic Insurance Company, as insurers and assignees of the owners, claimed for loss on vessel and outfit $40,000, which there can be little doubt was the full value. In the "Revised Statement" (p. 240) the claims in respect of the vessel and outfit amount altogether to $110,000. The master, in the "Original List," claimed $1,498 for the loss of his effects; but now he claims for the loss of his personal property, $2,239, and for loss of interest in oil and bone, $2,709.

The Isaac Howland.-In the "Original List" the claim for prospective earnings was $53,075, but in the "Revised Statement" (p. 247) it has grown to nearly four times that sum, namely, to $196,158. Moreover, in the "Original List," the owners claimed $65,000 for ship and outfit, subject to abatement for insurance; whereas, in the "Revised Statement," they claim the same sum, but protest against any diminution of claim by reason of insurance obtained by them, although the insurance companies claim at the same time the whole amount insured by them.

The General Williams.-In the "Original List" the owners claimed $40,503 as damages by the destruction of the vessel, over and above $44,673, the amount of insurances received by them. In the "Revised Statement" (p. 241) there is added to the amount of insurances a sum of $85,177, the claim being in this manner all but doubled. There are also added the following claims: A claim by the owners for prospective earnings amounting to $196,807; a claim by the master for loss of prospective catch, time, and occupation, amounting to $20,000; a similar claim by the mate, amounting to $10,000; another claim of $30,000 for insurances on vessel and outfit; and finally, the sum of $16,000 for insurances by the owners on the vessel's prospective earnings. In this manner the original claim, which was less than $66,000, has grown to the sum of $406,934, and has therefore been increased more than sixfold.

19. One more subject remains to be dealt with. The United States, in their Argument, (page 220,) have appealed to certain historical precedents. After stating, in a passage already referred to, (and to which, it is hoped, a full and sufficient reply has been made,) that they conceive this demand of interest, as an element of damage, to be " formable to public law, and to be required by paramount considerations of equity and justice," they add:

con

Numerous examples of this occur in matters of international valuation and indemnity.

Thus, on a recent occasion, in the disposition of Sir Edward Thornton, British Minister at Washington, as Umpire of a claim on the part of the United States against Brazil, the Umpire decided that the claimants were entitled to interest by the same right which entitled them to reparation. And the interest allowed in this case was (45,077 dollars) nearly half of the entire award, (100,740 dollars.)

So, in the case of an award of damages by the Emperor of Russia in a claim of the United States against Great Britain under the Treaty of Ghent, additional damages were awarded in the nature of damages from the time when the indemnity was due.

firmness, and threats to leave the ship upon the Governor's hands, and to return and report the matter to his Government, obtained her release."

The Tribunal knows, from the contemporaneous documents, what were the real facts, of which this is a garbled and inaccurate version. This same Mr. Hunt also wrote a pamphlet called "The Cruise of the Shenandoah," some extracts from which the United States have made part of their evidence. In this narrative,2 after speaking of the progress of the repairs of the Shenandoah at Melbourne, a story, in some respects similar, is told, but with the omission of all the particulars material to the present inquiry. Not one word is there said about recruits; on the contrary, there is an implied denial that, when the temporary suspension of the repairs took place, any recruitment had been attempted or was intended. "The work," he there says, 66 was nearly completed when an order came from the governor to seize the ship, a rumor having been widely circulated and believed that he had a number of men on board, intending to take them to sea and enlist them in violation of the well-established rules of International Law." Either Mr. . Ebenezer Nye's memory after six years confounded things elsewhere read with Mr. Hunt's representations, or those representations must have had in them, as his "Cruise" itself has, a large element of "romance." Whatever view may be adopted, Mr. Nye's affidavit really adds nothing to the original evidence, from which alone the truth on this subject can be ascertained.

Let it, however, be supposed that the statements of Temple, and of Hunt, according to Nye, might be accepted as accurate; that, in all, forty-two or even forty-four men were taken on board the Shenandoah at or from Melbourne. The Shenandoah had lost, at Melbourne, one officer and twenty-three men out of those who constituted her crew when she arrived there, (being the men, or the greater number of them, who had previously joined her from captured vessels.) By this assumed addition her number of officers when she left was the same, and her complement of men was greater by about twenty only than when she arrived in the colony. If such an addition (supposing it were deemed, contrary to the effect of the whole evidence, to have been improperly "suffered" by the Colonial Government) were deemed a sufficient ground for holding Great Britain responsible to the United States for all her subsequent captures, it seems impossible to escape from the conclusion that if the Kearsarge had gone to sea, and made captures with the sixteen or seventeen men on board whom she shipped from Queenstown, the Confederates (had they been successful in the war) might have held Great Britain responsible for all the subsequent captures of the Kearsarge; nay, further, that France is at this moment à fortiori responsible to the United States for all the captures made by the Florida after she had been permitted to renovate her crew in that country.

On what ground is it to be assumed that the addition of this number of men was a direct or proximate cause of all or any of those captures so as to make Great Britain responsible for them?

True it is, that when the Shenandoah came into Port Philip, on the 25th of January, with seventy hands on board, Captain King reported that "from the paucity of her crew at present she could not be very efficient for fighting purposes.' But she never was meant, and she never was used, for fighting purposes. Her first cruise, after leaving

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Desertas, began with a complement of officers and men certainly not larger than that which remained in her at Melbourne, after all the desertions which took place there, and before any new enlistments. Yet, with that limited number, she began a series of captures; and, as she made these captures, she increased her crew successively from the vessels taken the Alina, the D. Godfrey, the L. Stacey, the Edward, and the Susan. If she had left Melbourne without any recruitment whatever, she would have been in quite as good a condition for her subsequent cruise as she was for her original cruise, when she left Desertas. The whaling vessels, which she met with afterward, could no more have offered resistance to her than the merchant and whaling ships .which she had met before.

On the day of her leaving Port Philip, (18th February,) Consul Blanchard, who had then received all the information which Robbins and others could give him as to the number of men taken on board during the preceding night, wrote thus to Mr. McPherson, the American ViceConsul at Hobart Town: "My opinion is that she intends coming there, with a view to complete her equipment, she having much yet to do to make her formidable. She cannot fight the guns she has on board.”1 In point of fact, her subsequent cruise was conducted exactly as her previous cruise had been, and, on Temple's showing, she added to her crew, during the interval between her leaving Melbourne and her arrival at Liverpool, thirty-eight more men, taken from subsequently-captured vessels-the Hector, Pearl, General Williams, Abigail, Gypsey, W. C. Nye, and Favorite. It is, therefore, perfectly apparent from the whole history of the ship and of both her cruises, that she was not dependent for her power to make captures upon any addition to the strength of her crew which she received at Melbourne, and that her proceedings would, in all probability, have been exactly the same if she had never received that addition. Can the Tribunal possibly decide that, for the whole losses caused to American citizens by those subsequent proceedings, the nation, in one of whose colonies this recruitment of men (not shown to be a proximate cause of any loss whatever) took place, is to be held responsible?

Finally, it is right that, on the part of Great Britain, but in the interest not of Great Britain alone, but of civilized States in general, the attention of the Tribunal should be seriously directed to the general importance of the question on which it is now about to determine.

The facts, to which the discussion relates, occurred seven years ago in a remote colony distant several thousand leagues from Great Britain. The Governor, who then administered the affairs of the Colony, has long been dead. To hold personal communication with the officials, to obtain from them renewed explanations and interrogate them on points of detail, has been impossible. To expect that the British Government should be able to state with exactness every measure of precaution then adopted, and every order or instruction orally given by the police authorities of the Colony to their subordinates, and to account for and explain every circumstance as to which a doubt may be suggested, would be unreasonable in the highest degree. Nevertheless, the Government of Her Majesty has, with an openness, fullness, and precision which it believes to be entirely without example in the history of international controversies, placed before the eyes of the Arbitrators every fact, every direction given to its officers, every act of the Governor of the Colony and his Council, which could be gathered from the records

1 British Appendix, vol i, p. 617.