proverb that "it is the last ounce that breaks the camel's back," but will not go much further. The response is too immediate. What preceded is what gives the place and power for the casual incorporation of the new atom, and the preceding preparations laid foundation for these casual and fluctuating elements of prosperous war, and thereby, as well as directly, for the war itself. Again we have only need to repeat, "Omne principale ad se trahit accessorium." The provisions of the Treaty plainly indicate what the responsibility for indemnity should be if the responsibility for fault be established. C. CUSHING WM. M. EVARTS. XI.-ARGUMENT OF SIR ROUNDELL PALMER ON THE CLAIM OF THE UNITED STATES FOR INTEREST BY WAY OF DAMAGES. 1. The question of the allowance of interest on the sums claimed in respect of their alleged losses by the United States, is one of grave im portance, both in principle and in amount. It has not hitherto been discussed, with any precision or fullness, by either party. By Great Britain this demand has been simply demurred to in principle; it was thought premature to enter into any detailed argument on that subject until some liability should have been established, which would properly raise the question. The United States, in their Argument, presented on the 15th of June, have suggested (paragraphs 484-5) some reasons why, if a gross sum is awarded, "interest" should be "awarded by the Tribunal as an element of the damage;" but these reasons are very short and vague, and no attempt has been made to develop them in such a manner as to be of any real assistance to the Tribunal. 2. It is necessary to bear in mind what it is which the Tribunal has power to do in this matter. Under the seventh Article of the Treaty, on finding that Great Britain has failed to fulfill any of the duties previously mentioned, in respect of any of the vessels, the Tribunal "may, if it think proper, proceed to award a sum in gross to be paid by Great Britain to the United States for all the claims referred to it." If it does not award a sum in gross under this Article, the duty of examin ing and of ascertaining and determining the validity of all the claims brought forward, and "what amount or amounts shall be paid by Great Britain to the United States on account of the liability as to each vessel, according to the extent of such liability as decided by the Arbitrators," will devolve upon Assessors, under the tenth Article. It may be that the Tribunal has power to decide, if it should think it right and just to do so, that on all or some part of the principal amounts of the losses for which Great Britain may be found liable, when ascer tained and determined by Assessors in the manner provided by the tenth Article, Great Britain should further be liable to pay interest at some rate or rates to be fixed, which interest would, in that case, have to be computed by the Assessors, and would be included in the sum or sums finally ascertained and determined by them as payable by Great Britain. But it is indisputable, on the other hand, that, under the ninth Article, the Tribunal has no power to direct any interest to be paid upon any gross sum which they may think fit to award. It is one gross sum only, to be paid in coin within twelve months after the date of the award, which they have power to allow. The Counsel for the United States appear to be sensible of this, when they assume in the passage of their Argument already quoted (page 484) that "interest will be awarded by the Tribunal, as an element of the damage ;" the meaning of which evidently is, that they ask the Tribunal, when fixing the amount of the gross sum (if any) which they may award to be paid, to take into consideration, and to include in such gross sum, (among other "elements of damage,") some allowance in respect of interest upon the losses for which Great Britain is held responsible. 3. When attention is directed to the nature of the process by which only the Arbitrators can arrive at any gross sum to be awarded agaiust Great Britain, and to the materials or "elements" available to them for the purposes of such an award, it will be clearly seen that they cannot, without disregarding every principle on which the doctrine of interest ordinarily rests, make any such allowance. Instead of being "conformable to public law," and "required by permanent considerations of equity and justice," this demand can be demonstrated without difficulty to be just the reverse. The proofs, however, of this proposi tion will be better understood if, in the first instance, we ascertain the rules of civil jurisprudence, applicable to the subject of interest. 4. Putting aside those cases in which the liability of an individual to pay interest rests upon an express or implied contract, or upon positive legislation, it may be stated generally, that interest, in the proper sense of that word, can only be allowed where there is a principal debt, of liquidated and ascertained amount, detained and withheld by the debtor from the creditor after the time when it was absolutely due, and ought to have been paid, the fault of the delay in payment resting with the debtor; or where the debtor has wrongfully taken possession of, and exercised dominion over, the property of the creditor. In the former case, from the time when the debt ought to have been paid, the debtor has had the use of the creditor's money, and may justly be presumed to have employed it for his own profit and advantage. He has thus made a gain, corresponding with the loss which the creditor has sustained by being deprived during the same period of time of the use of his money; and it is evidently just that he should account to the creditor for the interest, which the law takes as the measure of this reciprocal gain and loss. In the latter case the principle is exactly the same; it is, ordinarily, to be presumed that the person who has wrongfully taken possession of the property of another has enjoyed the fruits of it; and if, instead of this, he has destroyed it, or kept it unproductive, it is still just to hold him responsible for interest on its value, because his own acts, after the time when he assumed control over it, are the causes why it has remained unfruitful. In all these cases it is the actual or virtual possession of the money or property belonging to another, which is the foundation of the liability to interest. The person liable is either lucratus by the detention of what is not his own, or is justly accountable, as if he were so. 66 5. The rules of the Roman law, as to interest for non-payment of a debt due upon contract, are in strict accordance with the above statement: "In bonæ fidei contractibus, usuræ ex morâ debentur." (Digest, lib. 32, § 2; lib. 17, § 3.) Interest," says Domat, (lib. 3, tit. 5, § 1,) "is the name applied to the compensation which the law gives to the creditor, who is entitled to recover a sum of money from his debtor in default.” (Cited in Sedgwick on Damages, page 234.) The Code Civil of France in like manner (lib. 3, tit. 3, "Contrats et Obligations," Art. 1146) provides that "les dominages et intérêts," (which, in the absence of a stipulated amount between the parties, are limited, by Art. 1153, to the rate of interest fixed by law,) "ne sont dûs que lorsque le débiteur est en demeure de remplir une obligation;" and Art. 1139 defines the meaning of this expression: "Le débiteur est constitué en demeure, soit par une sommation, ou par autre acte équivalent, soit par l'effet de la convention, lorsqu'elle porte que, sans qu'il soit besoin d'acte, et par la seule échéance du terme, le débiteur sera en demeure." The laws of Great Britain and America recognize the same principles. 6. Mr. Sedgwick, an American author, whose work "On the Measure of Damages" is highly esteemed, and of frequent reference in the courts of Great Britain, as well as in those of the United States, has a chapter (XV) on " Interest with reference to Damages." At page 373 he says: The allowance or infliction of interest often presents itself entirely disconnected from any question of contract; and, in this aspect, the subject cannot be omitted in any work which treats of compensation, for it is to be observed generally, to use the language of Lord Kenyon, that where interest is intended to be given, it forms part of the damages assessed by the jury, or by those who are substituted in their place by the parties. The subject of interest is susceptible of very clearly defined division: first, where it can be claimed as a right, either because there is an express contract to pay it, or because it is recoverable as damages which the party is legally bound to pay for the detention of money or property improperly withheld; second, where it is imposed to punish negligence, tortious, or fraudulent conduct. In the first case it is recoverable as matter of law. In the second case it rests entirely in the pleasure of the jury. He then states the rules of the English law, that "all contracts to pay undoubtedly give a right to interest from the time when the principal ought to be paid;" and that "where money is due, without any definite time of payment, and there is no contract, express or implied, that interest shall be paid, the English rule, independent of statute, is, that it cannot be claimed."1 This latter rule does not appear to be adopted in the greater number of the United States. "There is,” says Mr. Sedgwick, “considerable conflict and contradiction between the English and American cases on this subject. But, as a general thing, it may be said that while the tribunals of the former country restrict themselves generally to those cases where an agreement to pay interest can be proved or inferred, the courts of the United States, on the other hand, have shown themselves more liberally disposed, making the allowance of interest more nearly to depend upon the equity of the case, and not requiring an express or implied promise to sustain the claim. The leading difference seems to grow out of a different consideration of the nature of the money. The American cases look upon the interest as the necessary incident, the natural growth, of the money, and, therefore, incline to give it with the principal; while the English treat it as something distinct and independent, and only to be had by virtue of some positive agreement." The American rules for the application of the principles recognized in their courts were thus stated by the Chief Justice of New York, in a case in which the whole subject was carefully examined: From an examination of the cases, it seems that interest is allowed: (1) Upon a special agreement; (2) Upon an implied promise to pay it; and this may arise from usage between the parties or usage of a particular trade; (3) When money is withheld against the will of the owner; (4) By way of punishment, for any illegal conversion or us of another's property; (5) Upon advances of money.3 In Connecticut, similar propositions were laid down: (1) Interest will be allowed, when there is an express contract to pay it; (2) Such contract may be inferred from usage, special or general; (3) Where there is a contractio pay money on a day certain, and the agreement is broken, interest will be allowed by way of damages, as on notes, &c.; (4) When goods are sold, to be paid for on a day certain. interest, in like manner, follows; (5) Where money is received for the use of another, and there is neglect in not paying it, interest follows; (6) Where money is obtained by fraud, 1terest is allowed; (7) Where an account is liquidated and balance ascertained, interest begins to run; (8) Where goods are delivered to be paid for, not at a day certain, but in a teasonable time, and there is unreasonable delay, interest is allowed; (9) But where there are current accounts, founded on mutual dealings, and no promise to pay interest, in terest will not be allowed. With respect to the fraudulent detention of money, the rule acted upon as to interest by the courts of America generally is the same with that which now prevails in the English courts of equity. "Where money "On the Measure of Damages,' p. 376. 3 Page 380. is received by a party who improperly detains it, or converts it to his own use, he must pay interest." (P. 378.) In all these cases, the money must be actually due, and the amount liquidated, that is, ascertained and fixed, or capable of being ascertained by a mere process of computation resulting from known facts, of which actual indebtedness is the legal consequence. With respect to claims for interest on unliquidated demands, the law of Great Britain and of the United States is the same. "It is a general rule," says Mr. Sedgwick, p. 377, "that interest is not recoverable on unliquidated demands. In an action for not delivering teas according to agreement, Judge Washington, at Nisi Prius, said, 'It is not agreeable to legal principles to allow interest on unliquidated or contested claims in damages. The rule is well-established,' says Judge Parker, in the Supreme Court of New York, 'that interest is not recoverable on running or unliquidated accounts, unless there is an agreement, either express or implied, to pay interest.' So in Massachusetts, it is said, that interest cannot be recovered upon an open and running account for work and labor, goods sold, and the like, unless there is some contract to pay interest, or some usage, as in the case of the custom of merchants, from which a contract may be inferred.' And so also, in Texas, interest is denied on an open account. So, in an action on a policy of insurance, if the preliminary proofs are so vague that the claim cannot be computed, interest is not allowable.” At pages 385-387, Mr. Sedgwick considers another class of cases, under the head of "interest, when given as damages," i. e., those in which it is not given properly "as interest," under the control of the Court, and "allowed or disallowed upon certain rules of law;" but "where it is to be settled by the verdict of a jury," and "given more strictly as damages." The cases in which this rule is applied are generally those in which the property of the plaintiff has been wrongfully taken possession of by the defendant: This is generally so in actions of tort, as trover or trespass for taking goods, where interest is allowed at the discretion of the jury. So in an action of trespass, the Supreme Court of New York said: "The plaintiff ought not to be deprived of his property for years without compensation for the loss of the use of it; and the jury had a discretion to allow interest in this case as damages. It has been allowed in actions of trover, and the same rule applies to trespass when brought for the recovery of property." So in Kentucky, in case of a fraudulent refusal to convey land; and so declared also in North Carolina in cases of trover and trespass. It is to be observed that the action of "trover" here mentioned is a form of remedy under American and English law for the conversion by a defendant to his own use of the plaintiff's property; and the action of "trespass" is another form of remedy, under the same laws, when a defendant has intruded, without right, upon the property of the plaintiff. In all the cases here contemplated the liability to be mulcted in interest as damages arises out of the exclusion of the owner from the enjoyment of his own property, by the direct act of the person from whom the damages are recovered, and who, by reason thereof, has himself enjoyed (or, but for his own willful default, might have enjoyed) that benefit of the property from which the owner has been so excluded. The principle on which a jury ought to proceed in giving or not giving interest by way of damages was thus explained by the Court of New York: "In two actions against a master of a ship for non-delivery of goods, it was held in New York that the jury might give damages if the conduct of the defendant was improper; i. e., where fraud or gross misconduct could be imputed to him; but it appearing that such was not the fact, it was not allowed." 1 The principle thus thus laid down is in strict conformity with that |