"The citizenship of the captain and owners of the Tarquin is proved by the best evidence of which the nature of the case will admit. The citizenship of the persons composing the crew it was not necessary to have established, because they are not and never were claimants against the Government of Brazil; their claim was and is against the part owners of the Tarquin, the share of each individual of the crew of a whaler being in 'the nature of wages unliquidated at the time, but capable of being reduced to a certainty upon a conversion of the oil into money;' in other words, had the Tarquin pursued her voyage regularly, and returned into Nantucket, with a full cargo of oil, each individual of her crew would have been entitled to receive wages to the extent of his proportion in the produce of the voyage. Their remedy would have been assumpsit against the owners had the latter refused to comply with their engagements; but the owners had the right to claim the whole amount of oil necessary to complete the cargo against the Brazilian Government, whether the crew of the Tarquin were Americans or not.

"The award and distribution of it are based upon these principles.

"The material facts alleged in the memorial as the basis of the claim preferred being fully established, it becomes necessary to enquire whether the present Government of Brazil is liable to the claimants, or whether her separation from Portugal has released her from that liability in whole or in part.

"It is true that until the Portuguese monarch was driven by the convulsions which shook the continent of Europe in the beginning of the present century to transfer his court from Lisbon to Rio de Janeiro in 1808, Brazil had been but a mere colony of Portugal; but from the date of the establishment of that court at Rio de Janeiro, Brazil may be said to have begun to emerge from her state of colonial vassalage and to have risen gradually to dignity and preeminence, until on the 17th day of December 1815 she was finally elevated by the Prince Regent to become a Kingdom, and was immediately united with Portugal and the Algarves under the style and title of the United Kingdom of Portugal, Brazil and the Algarves. This event is commemorated by Mr. Sumter, the United States minister then residing at Rio de Janeiro, in a despatch addressed to the Department of State, bearing date of the 29th December 1815, in the following language: Under the cover marked A you will find a Law which was published at this Court on the 17th inst., which was the Queen's Birthday, erecting Brazil into a Kingdom, uniting it, together with the Kingdoms of Portugal and the Algarves, in one political body, and assuming for the Prince a title analogous to this change and union.' In the paper referred to it is decreed as follows: "That from and after the publication of the present law the State of Brizil shall be raised to the dignity, preeminence, title, and denomination of the Kingdom of Brazil; second, that my Kingdoms of Portugal, Algarves and Brazil shall henceforth be one single Kingdom under the title of the United Kingdom of Portugal, Brazil and the Algarves.' Thus it was that the sovereignty of Brazil was formally declared by the Prince Regent himself, whilst that sovereignty had been before recognized by the Treaty of Vienna, and Brazil became one of the coordinate States of the United Kingdon of Portugal, Brazil and the Algarves, each of which coordinate States was invested with the right of self-government, Brazil having its own legislative assembly, and being actually the residence of the head of the United Kingdom and of his Court. Such was the status of Brazil when the claim in question originated, to wit, in the summer of 1816. The vessel saved by the Tarquin and the troops on board that vessel were at the time engaged in the service of Brazil, destined to Saint Catharines; the decree from the Prince Regent, made in accordance with his promise to Capt. Bunker to fill up the complement of his cargo of oil in satisfaction of the claim of salvage, was issued in Rio de Janeiro and was to have been executed there by taking so much oil from the royal magazines in that city; so that the service rendered by the Tarquin was rendered to Brazil alone, and that service was very properly ordered by the Prince Regent to be requited at the expense of Brazil alone. No contribution whatever was to have been made by Portugal. The question then presents itself whether on the separation of the two countries which subsequently took place this

claim, still remaining unliquidated, became extinguished altogether by that separation, or was transferred in whole or in part to Portugal from Brazil, whose royal magazine was to have furnished the oil decreed to be delivered to Capt. Bunker, and which (that oil never having been so delivered) was the gainer by so much oil or its equivalent (all public property upon the separation remaining in Portugal or Brazil just as that separation happened to find it), or whether Brazil alone should be held to the entire liability of the claim.

"This claim was in the nature of a public debt, founded upon the King's decree, and by the rule of international law public debts are not extinguished upon the division of a state into distinct states, whether that division be by war or mutual consent; but they must be discharged either jointly or severally according to the principles of justice and equity. And as to Brazil accrued the entire benefit of the service rendered by the Tarquin, as in her royal magazines there remained for her benefit the oil with which that service should have been requitted and paid, in obedience to the order of the King, so also, upon every ground of equity and right, should the entire responsibility for this claim have passed to her upon her separation from Portugal."

On the grounds above stated the commissioner awarded to the claimants a sum representing (1) the value of the oil which it would have required to complete the cargo of the ship; (2) an indemnity for the ship's detention from September 24, 1816, the date of the order of the Prince Regent for the completion of the cargo, till February 20, 1817, when the United States minister at Rio de Janeiro informed the master that he had better abandon all hopes of having the order fulfilled, and leave Rio de Janeiro; and (3) interest at 6 per cent per annum on both the foregoing allowances from June 6, 1817, when the ship arrived at Nantucket, to the close of the commission.

The value of the oil for which the award was made was estimated according to the value at Nantucket of the oil which the Tarquin brought thither on her arrival.

On the last day of the commission, the commissioner Summary of Awards. and secretary certified a full record of the awards, which had been entered at large in a book kept for that purpose. Of these awards the following summary is presented : No. 1. Case of the bark Sarah and Esther, of Boston. Claimant, Daniel T. Willetts. Memorial filed October 13, 1850; amount claimed, $17,732.30. Claim disallowed on the ground that it had not been presented by the United States to Brazil prior to January 27, 1849, the date of the conclusion of the convention.

No. 2. Case of Hayes, Engerer & Co. Claimant, Patrick Barry Hayes, in his own behalf, and as attorney in fact for John Bowen, being the sole surviving partners of the house of Hayes, Engerer & Co. Memorial filed December 11, 1850; amount claimed, Rs. 86,329,732, and $160,000. Disallowed on the same grounds as No. 1.

No. 3. Case of the brig Toucan, of Boston. Claimants, Nathaniel Hamlin and Parker H. Pierce. Memorial filed December 20, 1850; amount claimed, $24,220.5. The sum of $19,453.83 was found to be justly due; and on the basis of this sum an award was made in favor of the claimants, as the ratable proportion to which they were entitled out of the whole fund ($322,535.98), for $15,008.19.

1MSS. Dept. of State.

No. 4. Case of the sloop Morning Star, of Philadelphia. Claimants, Humphrey Hughes and Martha McQuin, administratrix of James McQuin, deceased. Memorials filed February 10, 1851; amounts claimed, Humphrey Hughes, $7,152; Martha McQuin, $3,576. Disallowed on same ground as No. 1.

No. 5. Case of bark Yeoman. Claimant, Bradford Barnes, jr. Memorial filed January 7, 1851; amount claimed, $31,397. Disallowed on same

ground as No. 1.

No. 6. Case of schooner Shilleleh, of Baltimore. Claimant, Richard S. Stewart, executor of the will of George Law (the assignee of John Odom, original owner of the schooner), and administrator of Samuel Rose (original owner of the cargo), by James Birkhead, his attorney in fact. Memorial filed February 22, 1851; amount claimed, $79,847.17. Claim found to be valid to the amount of $74,302.69. An item for sundry commissions against the schooner was rejected because it was "composed of commissions for services in attending to the suit instituted by the owners of said schooner against the Brazilian Government not allowable in admiralty cases as part of the costs and of commissions on sales of cargo which never were made, the same having been seized by the Brazilian Government." An award was made, on account of Law's interest, for $24,273.22, and on account of Rose's for $33,050.03, subject, however, to the deduction which the Secretary of the Treasury might make under the sixth section of the act of March 27, 1850.

No. 7. Case of the ship Shamrock. Claimant, Marcia Kennedy, administratrix of John F. Kennedy. Memorial filed February 22, 1851; amount claimed, $56,324.78. In a supplementary memorial an additional claim was made for $20,973.96. Claim found to be valid to the amount of $26,977.50; ratable proportion awarded, $20,812.57, of which the sum of $3,389.08 was set apart, by consent, for John Gardner.

No. 8. Case of schooner John S. Bryan, of Boston. Claimant, Thomas P. Pingree. Memorial filed March 1, 1851; amount claimed, $11,270.25. Claim found to be valid to the amount of $3,249.47; proportion awarded, $2,506.90.

No. 9. Case of the ship Shamrock, of Beverly, Massachusetts. Claimant, William Burroughs. Memorial filed March 5, 1851; amount claimed, $57,587.734. Found to be valid to the amount of $23,777.80; proportion awarded, $18,344.12.

No. 10. Case of the brig Sally Dana, of Philadelphia. Claimants, John P. Bernadou and Sarah Ray. Memorial filed March 15, 1851; amount claimed, $13,023.72. Claim disallowed on the ground (1) that the charter party, a breach of which on the part of the Brazilian authorities was alleged, was not shown to have been executed by those authorities, and (2) “that according to the principles of international law as uniformly acknowledged and acted upon by the Government of the United States it can not enforce or demand any claim arising out of a mere contract between one of its citizens and a foreign government.”

No. 11. Case of the schooner Hope. Claimant, William W. Harper, administrator of Samuel B. Harper. Memorial filed May 5, 1851; amount claimed, $2,292. Found to be valid to the amount of $1,130.30; proportion awarded, $872.08.

No. 12. Case of the sumaca Felicidade, of Buenos Ayres. Claimants, Putnam I. Farnham and Jed Frye, George D. Phippen, administrator of Peter E. Webster, and John Bertram, by Putnam I. Farnham, their attorney in fact. Memorial filed May 12, 1851; amount claimed, $25,045.07. Found to be valid to the amount of $18,453.90; proportion awarded, $14,229.60.

No. 13. Case of the brig Aspasia, of Baltimore. Claimant, Catherine E. Massicott, executrix of William Massicott. Memorial filed May 20, 1851; amount claimed, $1,030.49, with interest. Found to be valid to the amount of $2,353.81; proportion awarded, $1,810.65.

No. 14. Case of the ship Tarquin. Claimants, Alexander C. Mitchell and Richard Mitchell, partners; Eliza B. Coffin, administratrix of Jared Gardner; Sophia Barrett, administratrix of George Barrett; William B. Coffiu and Reuben Swain, 2d, executors of John Swain; Nathaniel Barney, administrator of Valentine Swain; Deborah Brayton, administratrix of Robert Brayton; Tristram Starbuck, Benjamin F. Gardner, administrator of James Guin, and George M. Bunker, administrator of James Bunker, all represented by Alexander C. Mitchell, their attorney in fact. Memorial filed September 12, 1851; amount claimed, $37,273.15, with interest. Found to be valid to the amount of $69,869.14; proportion awarded, $45,585.96. The award was itemized as follows: Alexander Mitchell and Richard Mitchell, $8,837.02; George M. Bunker, $5,203.79; Eliza B. Coffin, $4,418.51; Sophia Barrett, $4,418.51; William B. Coffin and Reuben Swain, 2d, $4,418.51; Nathaniel Barney, $4,418.51; Deborah Brayton, $2,209.26; Tristram Starbuck, $2,209.26; Benjamin F. Gardner, $2,209.26; Barzillai Luce, $1,925.09; Frederick Swain, $1,418.50; Alexander Macy, $1,122.97; William Hussey, $1,122.97; James Swain, $980.05; John Whitney, $673.78; James Osband, $634.15; David Young, $634.15; John S. Coffin, $634.15; William Steward, $634.15; Lewis Dixon, $634.15; George Butterfolk, $598.92; John Luva, $598.92; Thomas Wood, $598.92; Robert Cathcart, $598.92; Henry Dunsard, $598.92; Thomas Russell, $567.39; Charles Barnard, $567.39; Peter Green, $567.39; Reuben Bowers, $449.19.

No. 15. Case of the ship Canada, of New York. Claimants, Richard I. Arnold, Edward A. Russell, Samuel Russell, Charles F. Tillinghast, oxecutor of Radcliffe Hicks, and William R. Talbot. Memorial filed November 18, 1851; amount claimed, $25,827.92. Found to be valid to the amount of $1,559.78; proportion awarded, $1,203.34.

No. 16. Case of Emanuel Gomez. Memorial filed November 22, 1851; amount claimed, $336. Rejected on the ground that it was embraced in the claim of the brig President Adams, which was settled by Brazil prior to the convention of January 27, 1849.

No. 17. Case of Wright and Houghton. Claimants, John S. Wright and Mary H. Houghton, administratrix of Henry A. Houghton. Memorial filed December 1, 1851; amount claimed, $14,678.27. Found to be valid; proportion awarded, $11,208.30.

No. 18. Case of the bark Navarre, of Philadelphia. Claimant, James Devereux, by W. H. D. C. Wright, attorney in fact. Memorial filed December 1, 1851; amount claimed, Rs. 275 $400. Found to be valid to the amount of $196.99; proportion awarded, $151.98.

No. 19. Case of the bark Globe, of Philadelphia. Claimant, John Devereux, by W. H. D. C. Wright, attorney in fact. Memorial filed December 1, 1851; amount claimed, Rs. 278 $100. Found to be valid to the amount of $199.22; proportion awarded, $153.69.

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No. 20. Case of the ship Louisiana, of New York. Claimants, Andrew Foster and George T. Foster, surviving partners of Andrew Foster & Sons, by W. H. D. C. Wright, attorney in fact. Memorial filed December 1, 1851; amount claimed, for a fine illegally exacted from the master of the ship, Rs. 400. Found to be valid to the amount of $577.94; proportion awarded, $445.87.

No. 21. Case of the ship Florence, of Boston. Claimant, Francis A. Gray, surviving partner of Francis A. and Samuel C. Gray, by W. H. D. C. Wright, attorney in fact. Memorial filed December 1, 1851; amount claimed, for fine illegally exacted, Rs. 1,393 $000. Found to be valid to the amount of $1,453.43; proportion awarded, $1,121.29.

No. 22. Case of the bark Mystic, of New York. Claimant, Fortunato J. Figueira. Memorial filed January 29, 1852; amount claimed, $31,401.50. Found to be valid to the amount of $30,656.75; proportion awarded, $23,651.04.

No. 23. Case of Isaac Austin Hayes. Claimant, Patrick Barry Hayes, administrator of Isaac Austin Hayes. Memorial filed February 4, 1852; amount claimed, $90,000, and one-fifth of Rs. 62,739 $703. Disallowed, "because the claim being one arising out of the alleged false imprisonment of the said Isaac Austin Hayes by the Brazilian authorities, all right to claim damages for said false imprisonment died with the person of said Hayes, according to the well-established maxim of law, 'Actio personalis moritur cum persona.'" But subsequently, on reargument, the commissioner very properly abandoned this ground, made an allowance of $1,000 in gross, and awarded the sum of $771.48.

No. 24. Case of the brig Brutus, of New York. Claimant, Francis W. Dominick, by W. H. D. C. Wright, attorney in fact. Memorial filed February 17, 1852; another memorial filed March 1, 1852, by Henry Way, administrator of Dominick; amount claimed $35,177. Found to be valid to the amount of $38,655.83; proportion awarded, $29,822.19.

No. 25. Case of Captain Wolfe. Claimant, William Wolfe, by W. H. D. C. Wright, attorney in fact. Memorial filed February 17, 1852; allowance made of $2,150.27; proportion awarded, $1,658.88.

No. 26. Case of the brig Caspian, of Boston. Claimants, John C. Zimmermann and Nalbro Frazier, composing the firm of Zimmermann, Frazier & Co., agents of the owners of the brig, by W. H. D. C. Wright, attorney in fact. Memorial filed February 17, 1851; allowance made of $54,632.95. The proportional sums awarded were as follows: Nalbro Frazier, $8,741.80; William Hammond, $8,741.80; Wilhelmina de Valangin, administratrix of Albert P. de Valangin, $4,370.90; Mary Lewis, administratrix of Stephen J. Lewis, $11,551.94; James Ellison, executor of Joseph Baker, deceased, Henry F. Baker, and John W. Geyer, $8,741.79.1

No. 27. Case of the brig Sally Dana, of Philadelphia. Claimant, Catherine Duval, executrix of James Duval. Memorial filed February 19, 1852;. amount claimed, $7,750. Rejected for reasons stated in No. 10.

No. 28. Case of Joseph Ray. Claimant, Margaret Ray, administratrix. Memorial filed February 27, 1852; amount claimed, Rs. 642,645 $573. Rejected, because the evidence did not show that Joseph Ray had "suffered

1 See Wright v. Ellison, 1 Wallace, 160.