[Vattel, § 16, p. 4.] Again, "whoever uses a citizen ill, indirectly offends the State which is bound to protect the citizen; and the Sovereign of the latter should avenge his wrongs, punish the aggressor, and, if possible, oblige him to make full reparation, since otherwise, the citizen would not obtain the great end of civil association, which is safety." [§ 71, p. 116.]

If the government, for any considerations of the general welfare, sacrifices the rights of an individual, the loss should be made good by the means of the whole, and thus equalize the contribution and burden. This is a principle of universal justice, applicable alike to the affairs of government and individuals. Thus, by the Rhodian Law, it is declared that, "if goods are thrown overboard, in order to lighten the ship, the loss incurred, for the sake of all, shall be made good by the contribution of all." Speaking of the right of "eminent domain," the same learned writer on the law of nations says, that when, in a case of necessity, the sovereign disposes of the rights of an individual, "justice requires that the individual be indemnified at the public charge; and if the treasury is not able to bear the expense, all the citizens are bound to contribute to it; for the burdens of the State ought to be supported equally, or in a just proportion." [Sec. 244, p. 112.] This great principle of equality and justice has been incorporated into the stipulations of our Federal and State constitutions, forbidding the government from taking private property for public, and without just compensation.

Upon these fundamental rules, which regulate the relation between government and citizen, the obligation to make good our loss in this transaction rests. We need not rely, however, upon the assertion of general principles, by elementary writers, for the doctrine has been embalmed in judicial decisions. In the case of De Bode vs. Regina, the Lord Chancellor asserted, that "it is admitted law that, if the subject of a country is spoliated by a foreign government, he is entitled to obtain redress from the foreign government, through the means of his own government. But if, from weakness, timidity, or any other cause, on the part of his own government, no redress

is obtained from the foreigner, then he has a claim against his own country." [House of Lords, 1852. Eng. Law and Eq., vol. xvi., p. 23.] It will be perceived that this general liability is limited by the word "spoliated." To spoliate, is to rob, plunder. So that the redress would not apply to injuries received in legitimate warfare. It was upon this principle that it was insisted in the British Parliament that if British subjects, whose debts and property had been confiscated by the States, during the Revolution, did not receive indemnity under the treaty of 1783, "Great Britain was bound in honor to make them full compensation for their losses." [Debrett's Debates, quoted in vol. iii. Jefferson's Works, p. 373.]

This principle, announced by the highest court in England as a maxim of law, has a wider reach than is necessary to be maintained in the adjudication of the claim now before the court, but no reflection of my own, and no argument or authority adduced, leads me to doubt its entire correctness.

By an examination of our numerous treaties, I find the distinction between acts of war and spoliations fully recognized, as they are also in the admiralty decisions-"spoliatio sed legalis captio." By the 7th article, treaty with Great Britain, 1794, she stipulated to pay for losses and damages by reason of irregular or illegal captures made during the war. [Volume of Treaties, p. 121.] So, in the treaty with Spain, 1802, she stipulated to "make compensation for the damages, losses, and injuries, in consequence of the excesses committed by Spanish subjects on American citizens during the war." [p. 198.] These may suffice, though we might, to the same point, quote the treaties with France, Denmark, the Two Sicilies, Texas, Mexico, and Peru.

I have examined all our treaties with foreign nations, a list of which, with reference to such articles as bear upon the question before you, I now submit for the convenience of the court. I have found in that examination no parallel to the treaty now before you. This is the first instance that our government has submitted the case of an individual to the arbitrament of a foreign power. So far as

I am informed, it is the first case in the history of nations. Under the Treaty of Peace and Amity, in 1814, we agreed with Great Britain to refer the dispute, as to the Boundary established by the treaty of 1783, to two commissioners; and, in the event of their disagreement, to refer it to "some friendly foreign state." [p. 220.] The commissioners thus appointed having disagreed, the terms of submission were fixed by a convention, 29th Sept., 1827. [p. 362.] Again, a difference having arisen, under the 1st article of the Treaty of Ghent, as to reclamations for slaves carried away by the British, it was, by the convention of 1818 [p. 248], agreed to refer the question to "some friendly sovereign or state. Both of these arbitrations involved mere questions of law, as to the true construction of written instruments. I will ask of your honors an examination of these cases, that you may see with what particularity the right of the parties to a full and free investigation was secured. In the latter case, after the question of law was decided, the claimants, as in all other treaties providing for indemnity, were allowed to go before commissioners, and produce the evidence upon which they asserted their right. I do not understand that government is alone the embodiment of the power of the nation, but that it is also the representative of its justice. To require, through legislative enactments, that justice be done, and refuse to do justice itself; to teach one thing by its precept and another by its example, would be to confound all morality, and deprive law of all sanction but force.

We appeal, then, from the power of the government, by which we have been injured, to its justice, for redress. No question of indemnity or personal safety could have swayed the determination of the gallant Reid and his companions in arms. Without a thought, but for the interest and honor of their country, they freely perilled both, and, with victorious swords, carved out the noblest monument of our naval history. For our defence on land we look, in time of war, to our citizen soldiery. For our safety on the ocean, to our volunteer The Armstrong and Fayal are the watchwords for our future. They are the lights which will lead our gallant tars to

seamen

victory. Let them not be dimmed by a denial of that governmental protection to which they are justly entitled.

It may be, may please your honors, that in the zeal of advocacy I may have used expressions and exhibited a feeling not usual in judicial proceedings. If such has been the case, I trust your honors will pardon it for the cause itself; for surely, if there ever was a case in which the cold atmosphere of the court should be warmed with the glow of patriotism, it is the one which, on behalf of the claimants, I now submit for your consideration.

BRIEF OF THE U. S. SOLICITOR.

THE petition asks payment by the United States for the destruction of the brig "General Armstrong" by a British fleet on the 27th September, 1814, at the port of Fayal, in the neutral territory of Portugal. Indemnity was demanded by Portugal of England at the time. Portugal having failed to procure it from England, demand was made on Portugal in 1835. Portugal refusing to pay, although earnestly pressed by the United States, it was finally agreed, by treaty concluded 24th February, and ratified 10th March, 1851, to submit the claim to arbitration. The King of Sweden was suggested by Portugal as the arbitrator, but the United States preferring the President of France, he was agreed upon as the arbitrator. On the 3d of November, 1852, he rendered an award in favor of Portugal, which the United States acknowledged as final and obligatory.

The claim is now urged against the United States, on the ground -1st. That the claim was improperly submitted to arbitration. 2d. That the treaty was so improperly and unskillfully framed, and the arbitration so negligently and improperly managed by the Secretary of State, that the claim was thereby lost before the arbitrator.

In support of this claim, the petitioners, by their counsel, have filed a brief, the points of which, to the number of thirteen, I proceed to state and consider.

First point-Charges that the Portuguese government acknowledged its liability to the United States, and cites the letter of the Marquis d' Aguiar, dated December 23, 1814, and enclosures, in