public debt? Why, if there be any element at all in what is universal, it must include the judicial question of validity in what Congress has heretofore done. We survey now the past situation; we look at the debt as it is, or look at the laws as they are and their feature, and the vigor that has been given to the public securities, and we say now in our plenary sovereignty that that debt, as read in the letter of the law, shall never be questioned.

I have but to ask the attention of the Court, not so much to the discussion, as to my abstinence from discussion, of the secondary questions involved here. They have been very ably and very ingeniously presented both by Mr. Townsend and Mr. Potter, in exhibition of the inconveniences, the incongruities and the disappointments which will grow out of this or that form of construction of the degree of efficacy that shall be given to this money in the discharge of past contracts or obligations arising substantially ex delicto. A great part of the criticism, ingenious and interesting, will be found after all to be but a form of that criticism we all must submit to, the imperfection of human justice; for in the very case that his honor, Judge Nelson, put of the oats bought in Canada and lost on the North River, the rule, undisturbed now by this question of medium value, as he rightly holds, is, that in the phrase of law, the invoice price is to furnish the value. Very well. I bought my oats at fifty cents in gold in Canada, and a week after without any disturbance in the currency they are worth one dollar by the rise of oats, and my oats which are worth a dollar to me are paid, by the tort feasor in the collision, at fifty cents. General rules are necessary. The oats may have fallen to twenty-five cents; the tort feasor instead of doing the particular justice of restoring my oats which he might do at twenty-five cents, which is the exact restoration of my situation, provided it be immediate, is obliged to pay fifty cents for oats sunk worth only twenty-five cents.

This is the imperfection of natural and human tribunals. A man trusts his jaw to a dentist and it is broken. The courts instead of giving him a new jaw, gives him so much money in his pocket. So in a variety of ways. It is but the imperfection of human justice. A great many of the cases, I am persuaded, will not stand the test of law. If I deliver a bag of gold to my clerk or porter to pay duties, and he sells it by the way, and brings, as Mr. Potter supposes, for the money, legal tender notes and pays his debt to me, that will not save him from the State prison for having embezzled my gold as he did on the way. There are a great many cases where an injudicious selection of agents for definite trusts results, in spite of all the law can do, to disappointment of confidence reposed. But all these modifications being applied and the matter reduced to what belongs to it, this same general necessity of law which I have adverted to, when this disturbing element of the measure of damages being changed does not come in, requires us to apply only the same possible completeness of justice to this disturbing element if it be a legal one.

You must give a judgment on a contract. If it be a contract sounding in debt, there is no question of evidence and none for a jury. The law then must pass upon it. It is in dollars of our currency. That contract of law will sustain a judgment only for the number of dollars claimed in it. When the law says that the metallic currency shall be met in dollars of legal tender then the judgment of the court must be so, and it would not escape injustice if it did the other and gave de presenti in its judgment of to-day a measure of value in paper money adequate to the gold unless it be specific performance of judgment, which it cannot do, for the specific performance of the judgment would be that it should be paid in gold, unless paper money equal in value should be tendered. If when gold is 280, an obligation to pay a hundred dollars in gold is to result in a judgment for $280, why the

judgment creditors can exact $280 in greenbacks when $100 of them are equal to his debt.

You must, therefore, have a general rule of law, and pressing that upon the Court, and insisting upon this and this alone as necessary in the public administration of the question, I say that whenever in contract a debt is liquidated in money of our currency called dollars judgment payable in legal tender according to law can be only for that amount. But when you liquidate it in judgment, not being liquidated in contract or arising from tort, and evidence is admissible either to prove what foreign money is worth or to prove what the value converted or the measure of trespass should be accounted in, then the court by the established rules of law liquidate it on the judgment of a jury finding on the fact. And that judgment is then for the first time the liquidation in dollars of the United States of the obligation, to show that it becomes a debt. All other difficulties, if your Honors please, of adjustment or interpretation as to what belongs to notes payable in commodities and how they are to be liquidated in commodities, as they are payable in commodities when they describe gold and silver dollars, are matters of private right submitted to the jurisdiction of this Court, with which the public, as now represented in this presentation of the matter, to which your Honors have done me the favor to listen, and which is submitted on their behalf, has nothing to do.

VII

ARGUMENT BEFORE THE INTERNATIONAL TRIBUNAL OF ARBITRATION AT GENEVA

NOTE

By the Treaty of Washington of May 8, 1871, all claims against Great Britain in behalf of the citizens of the United States who, during the Civil War, had suffered loss through the depredations upon the high seas of the Confederate cruisers, built, equipped and manned in the ship-yards of England, were referred to arbitration. The principal offender among these cruisers was the "Alabama" and all these claims thus arising were called generically the Alabama Claims. An important article of the treaty relating to this subject provided that the arbitrators in deciding the matter submitted to them should be guided by the following rules:

"A neutral government is bound, first, to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted in whole or in part, within such jurisdiction to war-like use. Secondly, not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men. Thirdly, to exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties."

The arbitrators named pursuant to the treaty were as follows: Mr. Charles Francis Adams, United States Minister at London during the Civil War, appointed by President Grant; Sir Alexander Cockburn, Chief Justice of the Queen's Bench, appointed by Queen Victoria; Count Frederick Sclopis, an eminent Italian jurist and statesman, appointed by the King of Italy; Mr. Jacob Staempfli, a

former President of the Swiss Confederation, appointed by the President of that Government; and Baron d' Itajuba, Brazilian minister at Paris, appointed by the Emperor of Brazil.

The sessions of the tribunal were held in the "Salle des Conferences" of the ancient Hotel de Ville at Geneva, Switzerland. This room has since been called "Salle de l'Alabama," and a tablet commemorating the momentous transactions of the arbitration has been placed upon its walls.

Great Britain was represented before the tribunal by Lord Tenterden, the Agent of his Government, and by Sir Roundel Palmer, afterwards Lord Chancellor Selborne, as counsel, with whom was associated Mr. Montague Bernard. The Agent for the United States was Mr. J. C. Bancroft Davis, and the counsel, three in number, were Caleb Cushing, for many years among the foremost at the bar, Morrison R. Waite, afterwards Chief Justice of the United States Supreme Court, and Mr. Evarts.

The first meeting of the Tribunal was held December 15, 1871, when the printed cases of the two governments with the accompanying evidence were presented, the arbitrators designating the 15th of the following April as the time for presenting their respective counter cases. The final session of the Tribunal was on the 14th of September, 1872.

At the session of the Tribunal held July 25, 1872, in the language of Protocol XIV of the conference:

"On the proposal of Baron d'Itajuba, as one of the arbitrators, the Tribunal decided to require a written or printed statement or argument from the Counsel of Great Britain upon the following questions of law:

"1. The question of due diligence, generally considered;

"2. The special question as to the effect of the commissions of Confederate ships of war entering British ports;

"3. The special question, as to the supplies of coal in British ports to Confederate ships; with the right to the other party to reply either orally or in writing, as the case may be."

On July 29 the printed argument of Sir Roundel Palmer, Counsel for the British Government, was filed with the arbitrators pursuant to the direction of the Tribunal, and on the 5th and 6th of August Mr. Evarts delivered the following oral argument in reply: