greed upon the question, whether interest ought or ought not to be allowed upon the ascertained value of the slaves, from the time when they were taken away in the manner which the Emperor of Russia had determined to be a violation of the Treaty of Ghent. These conflicting views of the Commissioners were supported on each side by the law officers of their respective governments. Mr. Wirt, the American Attorney-General, insisted" that interest at least was a necessary part of the indemnity awarded by the Emperor;" that, "without it, a just indemnification could not be made." "The first act of dispossession being thus established to be a wrong, is the continuance of it," he asked, "of that dispossession for eleven years, no wrong at all? Is it consistent with that usage of nations, which Sir John Nicholl recognizes, to redress an act of wrongful violence by the return, at any length of time, of the naked value of the article at the date of the injury?” And he states his conclusion thus: "Upon the whole, I am of opinion that the just indemnification awarded by the Emperor involves not merely the return of the value of the specific property, but a compensation also for the subsequent and wrongful detention of it, in the nature of damages." (Opinions of Attorneys-General of the United States, vol. ii, pp. 29, 31, 32, 33.)

It is instructive, on the other hand, to observe the views upon the question of principle, applicable to the claim of interest, (independently of the construction of the Treaties, the Emperor's award, and the Convention of St. Petersburg,) which were expressed by the eminent LawOfficers of the British Crown. Sir Christopher Robinson was then King's Advocate, and Sir John Copley (afterwards Lord Lyndhurst) and Sir Charles Wetherell were Attorney and Solicitor-General. The King's Advocate (19th May, 1825) thought that, on general principles, interest was not payable. He referred to the same rules of private jurisprudence, which have been stated in an earlier part of the present argu

ment:

The rules of law, so far as they may be applicable to this question, do not favor claims of interest, except under special circumstances, as in cases of agreement, expressed or implied, or of the possession and enjoyment of intermediate profits, or of injury, properly so termed, in respect to the tortious nature of the act, for which the compensation is to be made.

He proceeded to illustrate these rules, from the laws of England and of the United States, and added:

The principles of the General Law of Europe, as derived from the Civil Law, and adopted in the several countries, correspond with this exposition. "Interest of money is not a natural revenue, and is only, on the part of the debtor, a punishment which the law inflicts upon him for delay of payment, ('usura pecuniæ quam percipimus, in fructu non est, quia non ex ipso corpore, sed ex alia causa est, id est nova obligatione.)1

"Usuræ non propter lucrum petentium, sed propter moram solventium infliguntur."*

In the result he regarded the question as entirely depending upon the true interpretation of the Treaties and the Convention of St. Pe tersburgh, and considered that these instruments did not support, but were, on the contrary, at variance with the claim.

The views of Sir J. Copley and Sir C. Wetherell (10th November, 1825) were in some respects different from those of Sir C. Robinson. After referring to the First Article of the Treaty of Ghent, and to the Emperor's award as to its construction, they said:

In the removal, therefore, of the slaves in question, this engagement has been infringed, and the parties injured by such infringement are entitled to compensation.

Domat, Tit. "Interest," lib. i, p. 121.

£ Ibid., p. 419.

It must be obvious, however, that the bare restitution or payment of the value of the slaves, after an interval of so many years from the period when they ought, according to the agreement, to have been restored, will not form, by any means, an adequate compensation to the owners for the loss they have sustained by the breach of this Article of the Treaty; and we think the addition of interest to the value of the slaves, such interest being calculated from the period when they ought to have been given up, is a fair and moderate mode of estimating the damage sustained by the injured parties. In our municipal law, where a party contracts to deliver personal property at a particular time, or where he unjustly detains the goods of another, he may be compelled to deliver such property, or to pay the value, and further to pay damages for the detention. If, therefore, the question had rested here, we should have been of opinion, upon this general reasoning, that the claim to interest ought to have been allowed by the Commissioners. But upon adverting to the Treaty of London, to the award of the Emperor, and to the Convention of St. Petersburgh, we are led to a different conclusion.

The question upon which the British and American Commissioners and Law-Officers had thus differed was eventually settled, upon terms of compromise, by another Supplementary Convention between the two countries. But supposing that the question had been unembarrassed by any difficulties in the construction of the express Treaty engagements upon the subject, and that it ought properly to have been determined, on general principles, in accordance with the views of Mr. Wirt, Sir John Copley, and Sir C. Wetherell, it is plain that these views rested upon the simple and ordinary ground that property of ascertained value, which Great Britain had in her actual possession at the time of the ratification of the Treaty of Ghent, and which, by that Treaty, she had expressly contracted and engaged to deliver up to the United States, had been wrongfully and permanently detained in violation of that engagement. The case, in these respects, was precisely similar to that under the latter clause of the Seventh Article of the Treaty of 1794.

25. Before parting entirely with this precedent, it does not seem out of place to refer to some other forcible observations, made by Sir Christopher Robinson, in an earlier opinion given to the British Government on the same subject, on March 18, 1825:

The subject of interest presents a question of considerable importance and delicacy, and to which it will be difficult to apply the analogy of rules derived from legal proceedings, independent of the political considerations, which may have regulated the conduct of the Power making compensation in the particular case. In that view, it seems to be a reasonable distinction which is raised, that Sovereign Powers do not usually pay interest, unless they stipulate so to do. The obligations of Governments for civil injuries are matters of rare occurrence, and depend, in form and substance, as much on liberal concessions, or on reciprocal engagements, as on the intrinsic justice or equity of the claim. They are usually compensations (compromises?) made on questions in doubt, after considerable intervals of time, by which interest is much enhanced. They are also compensations for the acts of others; for the consequences of error or misunderstanding rather than of intentional injury; and for cases in which no profit or advantage has accrued to the party by whom such compensation is made. Considerations of this kind seem to require that, if interest is to be paid as part of the compensation by Treaty, it should be matter of special arrangement as to amount and particulars; and the reasonableness of that expectation supports the distinction suggested, that, where no such stipulation is made between Sovereign Powers, interest shall not be considered as due.

26. These are the words of a jurist (the reporter of the celebrated judgments of Sir William Scott, Lord Stowell) who was particularly conversant with questions of Public and International Law. Of the numerous examples of the allowance of interest between natións, without special agreement, which are supposed by the Counsel of the United States to exist, he was evidently not aware. Instances may, indeed, be found, (some before, and some later than 1825,) in which claims of individuals for interest, as a legal incident of liquidated debts and obligations have been held proper to be considered, and to be allowed if found just. There are also other instances, in which a State, acknowl

edging itself to have made default in the payment of its own liquidated pecuniary debts and obligations to the citizens of another State, or acknowledging itself to be responsible for the wrongful appropriation and detention, by its officers or people, of property belonging to the citizens of another State, has expressly contracted to make payments or restitution, with interest at an agreed rate. But Her Britannic Majesty's Counsel, after careful inquiry from the best sources of information, has failed to become acquainted with any instance in which interest has yet been allowed as an element of damages between nation and nation in the settlement of unliquidated claims (to recur to the words of Sir C. Robinson) "for the acts of others, for the consequences of error or misunderstanding, rather than of intentional injury; and for cases in which no profit or advantage has accrued to the party by whom compensation is made."

27. The third and latest precedent, cited by the United States, is that of the recent award of Sir E. Thornton between Brazil and the United States, in the case of the ship Canada.

In the year 1857 the Minister of the United States at Rio demanded compensation from the Government of Brazil for "an outrage committed on the high seas, near the Brazilian coast, by a body of Brazilian soldiers, upon a whale-ship called the Canada, sailing under the flag, and belonging to citizens, of the United States." 1 The matter continued pending for some years, and, eventually, on the 14th March, 1870, a Convention was concluded between Brazil and the United States, by which this question was referred to the arbitration of Sir Edward Thornton, then and now Her Britannic Majesty's Minister at Washington.

Under this reference Sir Edward Thornton made his award, dated the 11th July, 1870, by which he found the following facts to be established by the evidence laid before him, viz: that, on the 27th November, 1856, the Canada grounded upon a reef of rocks within Brazilian jurisdiction; that, during the four following days, proper means were used by her captain and crew, with every prospect of success, to get her off; but that, on the 1st of December, a Brazilian officer, with fourteen armed men, boarded her, superseded the authority of the Captain, and forcibly prevented the further prosecution of the efforts which were being made to save the ship; that she would, in fact, have been saved, but for this improper interference of the officers of the Imperial Government of Brazil, and that she was lost through that interference; for which reason, he held the Imperial Government to be responsible for the value of the property so destroyed. He then proceeded to deter mine, according to the evidence before him, (which included proper particulars of her age and classification, and valuations of different dates. the principal sum, representing the value of the ship at the time of her loss, and the actual cost of her outfit. He rejected all claims for prospective catch and earnings; he allowed some small sums for necessary expenses incurred by the crew in traveling; he also allowed to some of them moderate sums for three months' wages; and he allowed interest at 6 per cent. from the date of the loss, as the necessary result (in his judgment) of the liability of the Brazilian Government for the principal

amount.

This decision, like those before examined, proceeded upon ordinary juridical principles. The Brazilian Government, by their officers and

1 Dispatch of Mr. Fish to Mr. Blow, communicated to Baron Cotegipe on the th December, 1869.

soldiers, had wrongfully taken possession of, and had, in effect, destroyed, a United States ship within their jurisdiction, which was entitled to their protection. For the full value of the loss so inflicted upon subjects of the United States, they became immediately and directly responsible, as much as if they had seized and detained the ship, under circumstances enabling them to restore it to its owners. Restitution of the ship itself being impossible, a full compensation and indemnity became actually due, from the moment of the loss; and the payment of this compensation and indemnity, though promptly claimed, was for many years delayed. The amount of the principal loss was properly investigated and accurately determined, and the interest given was accurately computed upon that amount.

28. In every point of importance, with respect to the principles involved, this last precedent (like those which had gone before it) stands in absolute contrast with the present case. In this, as in the earlier cases, (to sum up the whole matter shortly,) those elements were found to be present, which were juridically necessary to constitute a right to interest; and interest was accordingly given as a matter of strict right. In the present case all these elements are absolutely wanting; and, instead of them, others are present, the effect of which is not to support, but to repel, the claim of interest, even if the appeal is made, not to any rule or principle of public law, but to the exercise of a reasonable and equitable discretion.

ROUNDELL PALMER.

XII.-REPLY ON THE PART OF THE UNITED STATES TO THE ARGUMENT OF HER BRITANNIC MAJESTY'S COUNSEL ON THE ALLOWANCE OF INTEREST IN THE COMPUTATION OF INDEMNITY UNDER THE TREATY OF WASHINGTON.

The question upon which the Tribunal is understood to have admitted argument on the part of Her Britannic Majesty's Government is, "Whether, supposing a capital sum as an adequate measure of injury, in the judgment of the Tribunal, has been arrived at, the proper indemnity for that injury involves the allowance of interest as a part of that indemnity from the date when the losses accrued to the sufferers (and as of which the capital of the losses has been computed) until the indemnity is paid?" We have had an opportunity to read the argument of Her Britannic Majesty's Counsel submitted to the Tribunal upon this question, and now avail ourselves of the right under the Treaty to reply to it, so far as such reply seems to us suitable.

I. It is important in reference to this question, as we have heretofore had occasion to suggest in respect to other questions opened for discussion by the Tribunal, to confine the argument within proper limits. By doing this in the present case, we may very briefly dispose of much that occupies a good deal of space in the learned Counsel's argument.

(a) The question assumes that a method of measuring the injury to the United States, and the indemnity therefor from Great Britain, has been adopted, which takes account of the losses suffered as of the dates (actual or average) when they were suffered, and fixes an amount in money which, if then paid to the sufferers, would, in the judgment of the Tribunal, be an adequate, and no more than an adequate, indemnity for such losses to the sufferers. Upon this view of the capital sum, in respect of which the allowance or refusal of interest thereon is in question, (and no other view seems admissible,) it is impossible to raise any other points for debate than the following:

First. Is the delayed payment of a sum which, if paid at an earlier date, would then be only an adequate payment, still an adequate payment without compensation for the delay!

There can be but one answer to this question. The earlier and the later payments cannot both be adequate, and not more than adequate, to the same obligation, unless they are equivalent to each other. But common sense rejects the proposition that a present payment of money and a delayed payment of the same sum are equivalent. They are not the same to the creditor or sufferer who receives the payment, nor to the debtor or wrong doer who makes the payment.

Compensation for the delay of payment is necessary to make present and delayed payments equivalent to each other, and each equal to the same obligation.

It thus being clearly impossible that earlier and later payment should be equivalent, whenever, in fact, only the later payment can be, and is to be, made, it must draw with it the compensation for the delay in the nature of interest, provided it is intended that the parties should stand after the delayed payment as they would have stood after an earlier payment.