Robert McKeown, No. 463, was in March, 1863, while employed as a ship-carpenter in the service of the United States Government on board the gunboat Benton, on the Mississippi River, near the mouth of the Yazoo, arrested by the commanding officer of the gun-boat, confined in the hold for about four days, then transferred to another gun-boat, and taken to Cairo, Ill., where he was discharged on the 5th April, after a confinement, in all, of thirteen days. He alleged improper treatment during his confinement, in consequence of which his health was materially injured. His arrest was upon the charge of disloyal and seditious language against the United States while employed on board the gunboat.

The commission unanimously made an award in his favor for $1,467.

5. Prize cases.

These claims related to vessels and their cargoes captured as prize by the United States during the war, and libelled in the prize-courts of the United States. In a portion of them final sentence of condemnation of the vessel or cargo, or both, was given by the courts of the United States, and the claim was now brought for the alleged value of such vessels and cargoes, alleging the condemnation to have been wrongful. In the other cases judgment of restitution was given by the courts, and the claim was now brought for damages by reason of the alleged wrongful capture and detention, and for costs and expenses incurred in respect of the same.

The whole number of memorials filed by different claimants for such captures was seventy-six, some of the memorials covering claims for several different vessels, as in the case of Sanders & Sons, No. 281, in which damages were claimed for the capture and condemnation of twenty-seven vessels.

The whole number of vessels captured, in respect of which and their cargoes claims were interposed, was seventy, in some instances many claims of different alleged owners being interposed in respect of the same vessel and her cargo, as in the case of the Peterhoff, in regard to which, and different portions of her cargo, twenty-two memorials were filed.

In respect of the capture of six of these vessels and their cargoes, or portions of the same, awards of greater or less amount were made against the United States.

In respect of the remaining sixty-four, the claims were wholly disallowed.

The whole amount claimed as damages against the United States in all these cases was $5,560,924, besides interest, amounting, with the addition of interest for the average time claimed, to $9,064,306.

The whole amount of the allowances, in respect of the six vessels as to which awards were made, was $582,177.

The question was early raised, on the part of the United States, as to the jurisdiction of these prize cases by the commission, both in respect to cases where the decision of the ultimate appellate tribunal of the United States had been had, and to those in which no appeal had been prosecuted on the part of the claimants to such ultimate tribunal. As to the former class of cases, the undersigned may properly state that he personally entertained no doubt of the jurisdiction of the commission, as an international tribunal, to review the decisions of the prizecourts of the United States, where the parties alleging themselves aggrieved had prosecuted their claims by appeal to the court of last resort. As this jurisdiction, however, had been sometimes questioned, he deemed it desirable that a formal adjudication by the commission should be had upon this question. The commission unanimously sustained their jurisdiction in this class of cases, and, as will be seen, all the members of the commission at some time joined in awards against the United States in such cases.

The question as to the jurisdiction of the commission in cases where the party complaining had failed to prosecute his appeal from the prize court of original jurisdiction to the court of ultimate appellate jurisdiction, was raised by demurrer in several cases, and was argued at length in the case of the British brig Napier, Ryerson and others, claimants, No. 147. In that case the vessel was captured as prize in July, 1862, by a United States vessel of war near the mouth of the Cape Fear River, on which river is situated the port of Wilmington, in North Carolina, a blockaded port. She had sailed from Turk's Island, one ot the Bahamas, with a cargo of salt, on a voyage alleged to have been destined for the port of Beaufort, N. C., then not blockaded, but in possession of the United States forces. She was taken by the captors to the port of Philadelphia, and there libelled in the United States district court for the eastern district of Pennsylvania, on the charge of attempting and intending to violate the blockade of the port of Wilmington, or other blockaded port in the insurrectionary States, and was condemned by that court as lawful prize, and sold under the decree. The vessel belonged to the port of Yarmouth, Nova Scotia, and was owned by British subjects there resident. No appeal appeared to have been taken from the decision of the district court by which the vessel was condemned. The memorial contained a general averment that neither the vessel nor cargo was "liable to confiscation" under the law of nations or the laws of the United States. A demurrer was interposed on behalf of the United States, specifying, among other grounds of demurrer, the following:

That the memorial does not show any appeal taken from the judgment of said court to the appellate tribunals of the United States having appellate jurisdiction thereof; and does not show that the remedy of the claimants for their alleged grievance under the laws of the United States had been sought or pursued to or in the judicial tribunal of the United States having ultimate appellate jurisdiction of the said matter.

On the argument of this case on demurrer, it was contended, on the part of the United States, that until the claimant has exhausted his remedy by appeal, and finds himself still aggrieved by the judicial tribunal of last resort, he has no ground of reclamation against the United States as the workers of injustice against him. That it is only in the event of final failure of justice, after pursuit of all the regular and ordinary means of redress, that any adjudication is to be considered as working wrong against a foreign litigant so as to entitle him to reclamation through the intervention of his own government. That the litigant who stops short of this and submits to the judgment of the inferior court, without seeking a review and reversal of such judgment by the appellate tribunal, in effect concedes the correctness of the judgment to which he submits. The counsel for the United States cited the report of Mr. Murray, (afterwards Lord Mansfield,) 1753, upon the reprisals made by the King of Prussia upon the Silesian Loan; Wheaton's History of the Law of Nations, pp. 210, 211; Wildman's Institutes, vol. 1, pp. 353, 354; Rutherforth's Institutes, vol. 2, pp. 596-7-8-9; the Opinions of Dr. Nicholl and Mr. Pinkney in the case of the Betsy, before the commission under the seventh article of the treaty of 13th November, 1794, between the United States and Great Britain. (Wheaton's Life of Pinkney, pp. 193 to 276.)

Her Britannic Majesty's counsel, on behalf of the claimants in this and other cases, maintained that the doctrines of the publicists in regard to the necessity of a party aggrieved following out his complete remedy in the appellate prize courts of the nation of whose acts he complained, applied only to the question as to grounds of war and reprisals, and did not apply to the question of jurisdiction by an international tribunal, established by treaty, with the large powers and jurisdiction conferred by the treaty upon this commission. That under the terms of the treaty the commission had jurisdiction of all wrongful acts committed by the authorities of the United States upon the persons or property of British subjects; that the case of the claimant here was founded, not on an alleged denial of justice, but on an act alleged to be in violation of the law of nations, to wit, the wrongful capture of the claimant's vessel, which act had been adopted by the United States, whose armed force committed the wrong, and of which wrongful act the United States had received the benefit. He cited Dana's Wheaton, § 292; Grotius, book 3, c. 2, §§ 4, 5; Wildman, vol. 1, p. 197; the treaty between the United States and Great Britain of 1794, (8 Stat. at L., 121,) and the case of the bark Jones, before the commission under the convention of 1853 between the United States and Great Britain. (Report of that commission, p. 83.)

The commission held, in effect, that, under the treaty, they had jurisdiction, notwithstanding the failure of the claimant to pursue his remedy by appeal to the court of last resort; but that such failure on his part would be considered conclusive against him, unless satisfactory reasons

were given for the omission to appeal. It was thereupon unanimously ordered by the commission that the demurrers be overruled, but that the claimants, in all the prize cases in which appeals had not been taken and pursued to the court of last resort, should file with the commission. their reasons for such omissions or failures to take and prosecute such appeals.

Subsequently the claimants in this case filed an affidavit, assigning as their reasons for not appealing from the decree of the district court the following:

1st. Because it was universally known in Philadelphia at the time said decree passed that appeals from the prize courts there by claimants were almost uniformly confirmed with costs. 2d. That public opinion there was in sympathy with such confirmations, under the suspicion that commercial men in this province (Nova Scotia) were in sympathy with the confederates. 3d. That the other owners of the Napier were not of pecuniary ability to procure the necessary sureties without much inconvenience, nor to sustain further heavy costs, and the burden of loss added to injury, especially as we had already expended nearly $500 in counsel fees, agency, and travelling expenses connected with this seizure.

On the filing of these "reasons" the commission, without further argument, held them insufficient to excuse the want of appeal, and unanimously disallowed the claim. On the decision of the original question Mr. Commissioner Frazer read an opinion which will be found in the ap pendix, L.

Under the order for claimants in cases in which no appeal had been taken to file their reasons for non-appeal, such reasons were filed and passed upon in the following cases:

John W. Carmalt, No. 89, claimant for part of the cargo of the ship Amelia, captured and condemned by the United States, alleged, as his excuse for non-appeal to the Supreme Court of the United States, that the claimant, being then within the State of South Carolina, then at war with the United States, was unable to communicate with counsel in Philadelphia, where the vessel was libelled, or to take any measures for prosecuting such appeal on account of the war then raging.

The commission (Mr. Commissioner Frazer dissenting) held these reasons sufficient; but subsequently, on the hearing on the merits, unanimously disallowed the claimant's claim, it appearing that he was at the time of the alleged capture domiciled within the Confederate States, and his property, therefore, liable to capture on the high seas as enemy's property.

In the case of the brig Ariel, R. M. Carson, claimant, No. 178, the reason assigned for non-appeal was that the claimant had never been aware, until the filing of the demurrer to his memorial before the commission, "that there could have been any appeal from the decision of the United States prize court that condemned the vessel and cargo."

The commission unanimously disallowed the claim, on the ground of the insufficiency of this reason.

In the case of the schooner Argonaut, Joseph B. Heycock, administrator, No. 263, and Frederick Wm. Ruggles, No. 264, claimants, the reasons for non-appeal assigned were that the counsel consulted by the claimants advised them that there was no necessity for taking such appeal, unless they intended to commence a suit in a civil court for damages, and that such claims, arising during the war, would, without doubt, be ultimately made the subject of arbitration, on which advice the claimants acted, and so omitted to appeal.

The commission unanimously disallowed the claim on the ground of the insufficiency of the reasons.

In the cases of the brig Sarah Starr and the schooner Aigburth, Cowlam Graveley, claimant, No. 292, the reasons assigned for non-appeal were that the claimant had become impoverished by his losses during the war, and the expenses of prosecuting his claims in the prize-court of original jurisdiction, and was unable to incur further expense; and also that he was advised that in the excited state of the country, and in view of the tenor of other decisions of the Supreme Court of the United States, he would not be likely to obtain impartial justice by such appeal.

The commission unanimously disallowed the claim for insufficiency of the reasons.

In the case of the schooner Prince Leopold, Henry A. McLeod, claimant, No. 306, the claimant assigned as reasons for his failure to appeal, his poverty and consequent inability to meet the drafts of his proctor and counsel in New York, and his expectation that his proctor would prosecute the appeal at his own expense, of the failure of which expectation he was not advised in season to secure the services of another lawyer on those terms.

The commission unanimously held the reasons insufficient, and disallowed the claim.

In the case of the M. S. Perry, otherwise known as the "Salvor," John McLennan, claimant, No. 370, the claimant alleged as reasons for non-appeal that the case of the vessel was hurried through the prizecourt so rapidly that he, residing in Havana, had no opportunity to interpose any claim or defense; that he was advised by letter from Lord Lyons, Her Majesty's minister at Washington, that he would have full opportunity to defend, but that subsequently it appeared that the vessel and cargo had been condemned and sold some days before this letter was written, and that, though he attempted by correspondence to secure a defence of his rights, all such efforts proved futile and unavailing.

The commission accepted these reasons as sufficient, Mr. Commissioner Frazer dissenting, and directed the case to be heard on its merits. On final hearing the claim was disallowed, as will hereafter appear.