the fact that appeal proceedings had been taken in the Sayward case by Cooper, and, of course, has no reference to the application for a writ of prohibition of years later. The costs in the Sayward case in the litigation so "appealed" might, on amicable adjustment, be included in the convention, and they were.

Finally, the owner of the Sayward—the claimant— as has been seen, is a civil citizen of the United States. Thomas H Cooper is the sole owner and claimant within the findings of fact of the Paris Tribunal.

THE "ADDITIONAL CLAIMS."

These are for the owners of the Wanderer, the Winifred, the Henrietta, and the Oscar and Hattie.

Preamble 5, made a part of Article I, by reference, states that the United States admits no liability as to them. The facts regarding these cases are analyzed under their proper heads, infra.

The case of the Winifred is concluded against Great Britain by the action of Captain Parr, Her Majesty's Naval Commander in the Pacific.

The handing of the Winifred over to the United States authorities for prosecution under the revenue laws, by the commander of a British ship of war, estops that Government from making a claim as much as if that action had been taken by royal order. It is universally recognized that on the high seas or in foreign waters, the commander of a commissioned public ship of war represents the sovereignty itself, and speaks for it. Everything done by him is presumably by the direct authority and express order of the State, until such acts are expressly disavowed. (See case of "Trent.")

On this all writers on international law are agreed. (See Hall Int. Law, secs. 65–226.)

The point that the seizure was made outside of the

jurisdiction has nothing to rest upon. When the British ship Winifred came within the control of Her Majesty's ship of war, in the harbor of Unalaska, so far as any privilege from extra-territorial seizure was concerned, it was, as it could be, waived by the action of Great Britain acting through Commander Parr.

The additional claims are not governed by the findings of fact or the proceedings of the Paris Tribunal in any respect.

The international question of jurisdiction being out of the way, issue is taken with the position of the British counsel that the Commissioners under the present Convention can revise the finding of the court of Alaska on any juridical question. No international court can revise the judgment of the court of a nation, unless that judgment be by the court of last resort in its judicial system. This rule is established as one of universal application, to which there can be no exception, unless an appeal was prevented.

The owners of the Winifred can not enter this international court, without showing an unsuccessful appeal to the last appellate jurisdiction in the judicial system of the United States. (See vol. 6, Papers, etc., Washington Treaty, pp. 88-141), where the authorities are collected and the whole subject is exhaustively considered and is repeatedly passed upon.

In this case the point of jurisdiction was not made by the owner; he, properly acquiescing in the direction of the commander of H. M. S. Melpomene, defended on the merits and was condemned, and took no appeal. Moreover, for the Winifred to recover would be against public policy. Whatever purpose of excuse her distress might serve, for entering the sea, she was thereafter found actually engaged in taking seals in violation of the laws of both Great Britain and the United States, as is admitted on all sides.

THE OSCAR AND HATTIE CASE.

It is the settled rule in such cases that however the facts may turn out, if the captor acted on reasonable cause of suspicion, damages can not be allowed for the seizure. But in this case Her Majesty's Government under the modus vivendi set out what should be considered the probable cause. This order was

adopted in the United States. On the question of probable cause we cite The Isabella Thompson, Am. and Brit. Mixed Com., Vol. 6, Papers Relating to Washington Treaty, p. 93; Pacifique, id., p. 97 et seq., and cases cited. And see Dr. Lushington in the Leucade, 2 Spinks, 236; The Peterhoff, 5 Wall, 28, which was before the Am. and Brit. Commission, vol. 6, papers, etc., pp. 136-139.

In this case, under the modus vivendi, the Oscar and Hattie was turned over to H. M.S.Melpomene in Bering Sea. It is not disputed that the facts were correctly represented to the commander of the Melpomene. That officer, by taking the Oscar and Hattie into court, passed his judgment upon probable cause. Her case thus passed from the control of the United States and the responsibility for prosecution, from then, was in the hands of the officers of the British Government.

The court of first hearing-the supreme court of British Columbia-on a full hearing of the facts, con; demned the ship. It is said now, that on reversal of that judgment by the appellate court of Her Majesty, the United States are liable as for damages for the seizure. Neither Government would be liable on the facts of the case, but in any case the responsibility must rest with Great Britain.

The cases of the Henrietta, the Wanderer, the Oscar and Hattie, and the Winifred are hereafter especially treated under their respective heads.

The Pathfinder, in Neah Bay, No. 21.-This vessel was found in waters within the exclusive jurisdiction of the United States; she was boarded by the officers of customs, who had been advised that she had escaped from a previous seizure that had been made under the direction of the Treasury Department for alleged violation of the laws of the United States.

The revenue cutter, without delay, towed her to the nearest telegraph station, at Port Townsend, a six hours' run, and at once communicated with the Treasury Department at Washington, whereupon her release was immediately ordered by telegraph. She was detained but a part of one day, and the utmost possible expedition was used in obtaining authoritative instructions in regard to her case.

For this act Great Britain brings a claim for "seizure" and for damages for future catch.

It need not be argued that the general rule is that all foreign vessels, and for this purpose even ships of war, are liable to visitation from customs and quarantine officers of the nation whose jurisdiction they enter. (See Baker's Halleck, Vol. I, p. 217, notes 5 and 6; and see Hall, pp. 195–200–209.

The United States have statutes, called "hovering acts," similar to those of Great Britain, and "officers of revenue cutters are authorized to search, examine, and remain on board all incoming vessels, domestic or foreign, when within 4 leagues, or 12 miles, of the coast." (Rev. Stat. U. S., secs. 2760-2867-2868; and see 9 Geo., II, chap. 35.) The English law was enacted in 1735; the American act in 1799.

The law as to a vessel, that has put into a foreign port in distress, is perfectly well settled. The privilege of such vessel, by the comity of nations, which in this respect has become international law, is admitted to the fullest extent; but the exemption does not go to the length of excluding reasonable quarantine or customs inspections. The detention for customs

inspection may be for a sufficient time to ascertain the character of the ship, and in case the distress privilege is claimed, by protest or otherwise, the authorities are entitled to be reasonably satisfied of the good faith of such claim. The privilege itself, so far as property is concerned, goes only to the exemption of the ship from the execution of the laws of the jurisdiction, which, but for the privilege, might work forfeiture of ship or cargo.

There is no doubt whatever, either, that if the privilege be claimed, and the good faith of the claim is fairly doubted, the question may be brought before the courts of the nation of the port for trial.

The burden of proving the necessity or distress, which brought the ship in, is upon the ship. (The Diana, 7 Wall., 354; and see The Copenhagen, 1 C. Rob., 289.)

In any case, however, the privilege must be asserted and claimed promptly from the authorities of the jurisdiction in person, or by a consul of the ship's nation; otherwise it does not avail.

In this case, as the Commissioners will find on reference to the Record, the claim now set up on the part of this vessel, that she was in Neah Bay to "fix her rudder" or otherwise from distress, was never made to the visiting officers at any time, or brought to their attention formally or informally!

On the long Pacific coast of the United States, which is especially exposed at all times to offenses against the revenue laws, or, for that matter, on any other of their coasts washed by the high seas, the proper officers of the customs service may visit a ship and, upon reasonable suspicion as to its character, detain it for the necessary time to ask for instruetions from their Government.

The right and the practice is one of self-protection, and not one that any nation can surrender. The distress theory, and the bill for damages, originated