be taken for granted that there is a responsibility, because, it is alleged, the government of the United States has, in both. the executive and legislative branches, decided this question. This ground will not surprise any person who has had the opportunity of examining the documents in this case prepared on the part of the claimants. It is plainly to be seen that, from the beginning, they have sought to evade any inquiry into this fundamental point. In the "confidential" letter signed by their committee, Messrs. Arnold, Waterman & Baily, dated New York, October 15, 1858, and addressed to Mr. Bowlin, on the eve of his departure for Paraguay, they say, referring to another paper which they placed in his hands:

"We have ventured also to call your attention to the serious objections to any conmission, especially to examine into any matter of which our government is already satisfied."

No doubt. There were, and are, serious objections, on the part of the company, to such an inquiry. But if the government of the United States, listening in a patriotic spirit, was not imposed upon when it was "satisfied" (if it was satisfied) that outrages had been perpetrated, what serious objection can the impartial inquirer after truth find to a full and deliberate examination of this primary question? A commission was agreed upon, notwithstanding these "serious objections." It is a commission under a treaty and the law of nations, and is composed of one commissioner on the part of each nation. These commissioners are sworn, in the words of the treaty, to investigate this claim, as well as to adjust it, and determine its amount, "upon sufficient proof of the charges and defences of the contending parties." (Article II.) Without repeating further what is said in the opening paper on this subject, or extending the argument, I content myself with the plain words of the convention and the nature of the subject-matter itself, as justifying the assertion that this question of wrong or no wrong is an open question. But if it were not, as has been aptly remarked by the United States commissioner, on the former argument, practically, the result must be the same; since, if it finally appears that no wrong has been done, the damages must be merely nominal.

Assuming, then, for the sake of the argument, that this liability is fixed, what is the damage? First, as to all real, existing, tangible property left in the country of Paraguay by the agent of the company, it clearly appears from the evidence that it was faithfully preserved; liberally appraised, sold at public auction, and the proceeds applied to an ac

knowledged debt due by the company to the Republic, ($10,000 loaned money, and interest,) and that the balance remaining due to the Republic is upwards of $6,000. The precise sum appears in the evidence.

Against this real and tangible part of the case not one syllable of evidence is adduced by the company. On the contrary, the evidence from Mr. Ferguson, one of their own witnesses, confirms it, in a general way.

What remains? The rest is in nubibus. It is made up of extravagant conjectures, running through an imagined succession of prosperous years.

All these calculations are founded upon the assumption that the company had become entitled to certain exclusive rights and monopolies of saw-mills, cigar factories, brick-machines, plows, hoes, shovels, pick-axes, churns, and what not. But the company itself has expressly founded its pretended rights in these respects upon the decree of 1845 and the letter of Mr. Gelly, which they have given in evidence.

Now, it is too clear for controversy, that they did not comply with any of the terms and conditions of that decree. It does not differ esssentially from ordinary patent laws in other countries. Its provisions are reciprocal between the government and the private party. It cannot be sensibly construed so as to confer any monopoly or privilege or patent without the regular official evidence of it being applied for and issued upon the express terms and conditions of the decree itself. It is not even pretended that these, or any of them, were complied with. The printed argument for the claimants (a copy of which has been furnished to me late this afternoon) admits this distinctly at page 22--excuses it by the supposed fact that the agent was "constantly occupied in business," and "thought it unnecessary to press those parts of it which would not suffer by delay." It proceeds to say: "We have still a right, however, to apply for them, (the patents,) and abundant proof with which to support the application."

A bright idea, indeed! But, meantime, until it is executed, there are, and have been, no patents or exclusive rights.

But if this supposed right of now applying for the patents could be exercised here, before this commission, I beg to submit to his honor the United States commissioner, with that decree and these proofs before him, whether he would feel authorized to issue one single patent of all those which are assumed to belong to the company? I should have not the slightest doubt of his judgment in such a matter.

It is very nearly seven years since these wonderful advantages were introduced into Paraguay; but there is not one particle of proof that any single machine or improvement claimed by the company had been put in practical use there. If any witness has testified to it, or any official document certifies it, it has escaped my most careful attention.

If these mysterious improvements in the making of cigars were really worth anything, and were new, was it not the express consideration of any monopoly for a term of years that there should be a precise and formal description of the processes deposited in the public archives, before the exclusive right could accrue, so that the government and people might eventually have the benefit of the secret? The decree in evidence distinctly provides it. But Mr. Morales, the director, Mr. Font, and Mr. Orihuela, the practical men, who were possessed of these valuable processes, are before the commission the first personally, and the two others by their cross-examinations in Paraguay, here produced; and it hardly seems necessary to waste time upon either of the trio or their joint treasury of knowledge.

So of the saw-mill. "Miserable affair," as Mr. Ferguson says it was, could it give a claim to the privileges of the decree, by being merely put up and used-one single machine, by the company, for its own profit-without any model being deposited, or any provision made for the corresponding advantages to the Republic which was to grant the monopoly? The whole theory of this part of the claim seems to me preposterous. But from the beginning, and even in the opening statement here, it has been claimed that a dispensation had been granted by a certain imaginary Secretary of State of Paraguay, Mr. Gelly; and his letter has been given in evidence. It turns out, in the first place, that he never was Secretary of State. But if he had been, the plain language of the letter is to refer Mr. Hopkins, by express citation, to this very decree of 1845—not at all to dispense with its provisions; and if had professed to alter the law, it would have been simply nugatory.

With "the invitations of Paraguay," the "inducements held out for American enterprise and American capital," so often and so boldly referred to throughout the progress of this claim, it might have been expected that some evidence of the truth of this staple of the matter would have been produced, other than a general law, with none of those terms or conditions had the company complied. The case, fortunately, has now reached a point where florid rhetoric and confident assertions will pass for nothing, if the solid foundation of useful

facts be wanting. Where are those facts? Upon what ground of fact or of law can these conjectural profits be claimed? The facts have been reviewed; let us look for a moment at the law.

And, first, it may be remarked, that the abstract doctrine of law is of no practical importance, if there be no facts to which it may be applied; and that is precisely this case, upon the question of the measure of damages. The fundamental fact of a vested right from which profits were expected, is wholly wanting. The other element of a violation of such right (if right there were) is not established.

The principles and cases cited in the opening argument are not at all controverted; but it would be a waste of time, after what has been said in this paper, to go into any examination of them, as to their application to this case. They are familiar to every lawyer. But it is believed that their application to a case like this is sufficiently novel to support a claim to the exclusive use of them in like cases.

The case of the Amiable Nancy, cited from Wheaton, seems a peculiarly unfortunate selection. There the Supreme Court cut down the decree of the court below, from about $3,000 to about $700. One of the items claimed was for the loss of the supposed profits of the voyage upon which the Amiable Nancy was originally bound. Here was a certain specified. voyage, of fixed points, limited duration, involving prices and quantities, susceptible of almost mathematical certainty, -very different from the ærial voyage among the clouds to which it is compared. Yet, the Supreme Court (at page 560) say: "In the opinion of the court, this item was also properly rejected. The probable or possible benefits of a voyage, as yet in fieri, can never afford a safe rule by which to estimate damages in cases of marine trespass. There is so much uncertainty in the rule itself, so many contingencies which may vary or extinguish its application, and so many difficulties in maintaining its legal correctness, that the court cannot believe it proper to entertain it. In several cases in this court, the claim for profits has been expressly overruled," &c., (citing two of them.)

The remark quoted in the argument for the claimants is not made in connection with what is above quoted. The doctrine there laid down is without qualification.

Cases of exemplary and vindictive damages do not go upon the ground of compensations, but of punishment. They furnish no authority for these speculations and conjectures of profits. As to all such calculations, the doctrine of the Supreme Court is as explicit as it is philosophical. It is not

supposed necessary on this occasion to go further than that tribunal for authority.

In all cases claiming exemplary or vindictive damages, evidence of the conduct of both parties is weighed, and the rule of natural justice lies at the foundation. In the present case I fancy that no eloquence, however inflamed, could move a jury to more than one cent damages.

But this is not a case submitted by the Republic of Paraguay for punishment; or for vindictive damages; but simply for compensation, if compensation be due. This is the extent of the submission.

If the doctrine contended for by the claimants can be sustained, the shortest way to fortune is to set on foot some enterprise in Spanish America, under a Hopkins or a Morales. If a pretext can be made for abandoning it in its infancy, as strangled by a government less powerful than our own, then it is to be taken for granted that all the changes and chances of this mortal life, all the dangers of the seas, all the risks and wrecks of speculation, are insured against by that gov ernment; and it is to be assumed that in a few months the exceedingly rare results of years of labor and vicissitude have been actually attained, and being thus lost, are to be made good by the insurer.

Nothing can be further from the certainty, or reasonable approach to certainty, which characterizes all judicial proceedings; and so this company have shown that they consider the case to be. They have been all the time at sea, without chart or compass, as to their measure of damages. They seem to have had the idea that the "millions in the custom house" of President Lopez ought to be taken into consideration, as if the company had been metamorphosed into a young damsel irreparably wronged by him, under a promise of marriage unfulfilled. They have delighted themselves with the idea of fancy damages, taking it for granted that the just pride of nationality and the true sensitiveness of patriotism, which characterize the American people, would necessarily be excited, and be kept excited to the end by the "false clamor" of Mr. Edward Augustus Hopkins. Accordingly, they never continued long in one stay as to the value of their expectations of this claim. It is curious to review their pre

tensions.

Bearing in mind the $5,000 of Mr. Ferguson's estimate of all the movables at San Antonio, the $2,500 which the real estate in Asuncion cost, the $237 for the real estate (with bad title) at San Antonio; the inventory of the curta supellex at