Papers Relating to the Foreign Relations of the United States, Transmitted to Congress with the Annual Message of the President, December 2, 1872, Part II, Volume I

[105] *Part III. The duties which Great Britain, as a Neutral, should have observed toward the United States.

[undated.]

The Queen’s Proclamation a recognition of obligation under the law of nations. The second branch of the subject, in the order in which the United States desire to present it to the Tribunal of Arbitration, involves the consideration of the duties which Great Britain, as a neutral, should have observed toward the United States during the contest. However inconsiderately and precipitately issued, the Proclamation of Neutrality recognized the obligation, under the law of nations, to undertake the performance of those duties, and it becomes important to have a correct understanding of their character.

Great Britain has recognized its obligations in various ways. In attempting to define these duties, it is natural, first, to endeavor to ascertain whether Great Britain itself has, by legislative or official acts, recognized any such obligations; and next to inquire whether the canons of international law, as expounded by publicists of authority, demand of a neutral, the observance of any other or broader rules than have been so recognized. The United States will pursue the examination in this order.

[106] Recognized by the Foreign Enlistment Act of 1819. They find, first, an evidence of Great Britain’s conception of its duties as a neutral in the Foreign *Enlistment Act which was enacted in 1819, and was in force during the whole of the Southern rebellion.

Municipal laws designed to aid a government in performance of international duties. It must be borne in mind, when considering the municipal laws of Great Britain, that, whether effective or deficient, they are but machinery to enable the Government to perform the international duties which they recognize, or which may be incumbent upon it from its position in the family of nations. The obligation of a neutral state to prevent the violation of the neutrality of its soil is independent of all interior or local law. The municipal law may and ought to recognize that obligation but it can neither create no destroy it, for it is an obligation resulting directly from International Law, which forbids the use of neutral territory for hostile purpose.¹

The local law, indeed, may justly be regarded as evidence, as far as it goes, of the nation’s estimate of its international duties; but it is not to be taken as the limit of those obligations in the eye of the law of nations.

History of Foreign Enlistment Act of 1819. [107] [108] It is said by Lord Tenterden, the distinguished Secretary of the, British High Commissioners, in his memorandum attached to the report² of Her Majesty’s Commissioners upon the neutrality law,³ *that the neutrality law of the United States formed the foundation of the neutrality of England.⁴ “The act for the amendment of the neutralty laws,” he says, “was introduced by Mr. Canning on the 10th of June, 1819, in an eloquent speech, in the course of which he said, ‘It surely could not be forgotten that in 1793 this country complained of various breaches of neutrality (though much inferior in degree to those now under consideration) committed on the part of subjects of the United States of America. What was the conduct of that nation in consequence? Did it resent the complaint as an infringement of its independence? Did it refuse to take such steps as would insure the immediate observance of neutrality? Neither. In 1794, immediately after the application from the British Government, the Legislature of the United States passed an act prohibiting, under heavy penalties, the engagement of American citizens in the armies of any belligerent Power. Was that the only instance of the kind? It was but last year that the United States passed an act by which the act of 1794 was confirmed in every respect, again prohibiting the engagement of their citizens in the service of any foreign Power, and pointing distinctly to the service of Spain or the South American Provinces.”¹ It appears from the* whole tenor of the debate which preceded the passage of the act that its sole purpose was to enable the Executive to perform with fidelity the duties toward neutrals which were recognized as imposed upon the Government by the Law of Nations.

The United States assume that it will be conceded that Great Britain was bound to perform all the duties of a neutral toward the United States which are indicated in this statute. If this obligation should be denied, the United States beg to refer the Tribunal of Arbitration to the declaration of Earl Russell in his communication to Mr. Adams of August 30, 1865, where he² “lays down with confidence the following proposition:” “That the Foreign Enlistment Act is intended in aid of the duties * * of a neutral nation.”³ They also refer to Lord Palmerston’s speech in the House of Commons, July 23, 1863,⁴ in which he says: “The American Government have a distinct right to expect that a neutral will enforce its municipal law, if it be in their favor.”

Great Britain bound to perform the duties recognized by that act. Indeed, Great Britain is fully committed to this principle in its dealings with other Powers. Thus, during the Crimean war, Her Majesty’s Government, feeling aggrieved at the acts of the Prussian Government in tolerating the furnishing of arms and other contraband of war to Russia, were advised by the Law Officers of the Crown that they might justly remonstrate against violations of Prussian law.⁵

[109] After these declarations by British authorities, it will scarcely be contended that the United States had not the right to expect, and to demand of Great Britain the performance of the measure of duty recognized by existing municipal laws, however inadequate those laws might be as an expression of international obligations.

Duties recognized by Foreign Enlistment Act of 1819. The British Foreign Enlistment Act of 1819 consisted of twelve sections, written in the verbiage which the customs of England make necessary in the laws providing for the punishment of crimes. These sections relate to four distinct subjects. First, they repeal all former statutes; secondly, they define the acts which the British legislators regarded as acts which a neutral ought not to permit to be done within its jurisdiction; thirdly, they provide modes for prosecuting persons found guilty of committing the acts which are prohibited by the statute, and they indicate the punishments which may be inflicted upon them when convicted; fourthly, they exempt certain parts of the Empire from the operation of the statute.¹

[110] *This Tribunal need take no notice of the penal portions of the statute, which affect only the relations between the State and those who owe allegiance to its laws by reason of residence within its territory. The United States will therefore confine themselves to attempting to deduce from the statute the definitions of the principles, and the duties, which are there recognized as obligatory on the nation in its relations with other Powers. The adjudicated cases often disregard the distinction between the duties of a neutral, however defined, and the proceedings in its courts against persons charged as criminals for alleged violations of its laws for the preservation of neutrality. Even some of the best publicists, in referring to this class of decisions, have not always remembered that, while in the former we have only to do with principles of public law, in the latter we are dealing with the evidence necessary for the conviction of an offender. Bearing this distinction in mind, the Tribunal of Arbitration may be able to reconcile many apparently conflicting authorities, and arrive at just conclusions.

The acts which, if committed within the territory of the neutral, are to be regarded as violations of its international duties, are enumerated in the second, fifth, sixth, seventh, and eighth sections of the statute.

[111] *Translating this statutory language into the expressions commonly employed by publicists and writers on International Law, this statute recognizes the following as acts which ought to be prevented within neutral territory during time of war.

1. The recruitment of subjects or citizens of the neutral, to be employed in the military or naval service of a foreign Government or of persons assuming to exercise the powers of government over any part of foreign territory; or the acceptance of a commission, warrant, or appointment for such service by such persons; or the enlisting or agreeing to enlist in such service: the act in each case being done without the leave or license of the Sovereign.

2. The receiving on board a vessel, for the purpose of transporting from a neutral port, persons who may have been so recruited or commissioned or the transporting such persons from a neutral port. Authority is given to seize the vessels violating these provisions.

3. [112] The equipping, furnishing, fitting out, or arming a vessel, with intent or in order that it may be employed in the service of such foreign Government, or of persons assuming to exercise the powers of government over any part of a foreign country, as a transport or store-ship, or to *cruise or carry on war against a power with which the neutral is at peace; or the delivering a commission for such vessel, the act in each case being done without the leave or license of the Sovereign.

4. The augmenting the warlike force of such a vessel of war by adding to the number of guns, by changing those on board for other guns, or by the addition of any equipment of war, if such vessel at the time of its arrival in the dominions of the neutral was a vessel of war in the service of such foreign Government, or of such persons, the act being done without the leave or license of the Sovereign.²

Royal Commission to revise Foreign Enlistment Act of 1819. [113] [114] *During the insurrection, as will be seen hereafter, this act was, by the construction of the English courts, stripped of its effective power. The United States repeatedly and in vain invited Her Majesty’s Government to amend it. Although these calls proved abortive during the contest with the South, the appalling magnitude of the injury which had been inflicted by British-built and British-manned cruisers upon the commerce and industry of a nation with which Great Britain was at peace appears to have awakened its senses, and to have impelled it to take some steps toward a change. In January, 1867, the Queen’s Commission was issued to some of the most eminent of the British lawyers and judges, authorizing them to inquire into and consider the character, working, and effect of the laws of the Realm, available for the *enforcement Of neutrality, during the existence of hostilities be between other States with whom Great Britain might be at peace, and to inquire and report whether any and what changes ought to be made in such laws for the purpose of giving to them increased efficiency, and bringing them into full conformity with international obligations.¹

Report of the Commission. That Commission held twenty-four sittings, and finally reported that the old Foreign Enlistment Act of 1819 was capable of improvement, and might be made more efficient by the enactment of several provisions set forth in the report.²

[115] Among other things the Commission recommended that it be made a statutory offense to “fit *out, arm, dispatch or cause to be dispatched, any ship, with intent or knowledge that the same shall or will be employed in the military or naval service of any foreign Power in any war then being waged by such Power against the subjects or property of any foreign belligerent Power with whom her Majesty shall not then be at war.”³ It was also proposed to make it a statutory offense to “build or equip any ship with the intent that the same shall, after being fitted out and armed, either within or beyond Her Majesty’s Dominions, be employed as aforesaid;” ⁴ and it was proposed that the Executive should be armed with summary powers similar to those conferred upon the President of the United States by the eighth section of the act of 1818. It was further proposed to enact that “in time of war no vessel employed in the military or naval service of any belligerent, which shall have been built, equipped, fitted out, armed, or dispatched contrary to the enactment, should be admitted to any port of Her Majesty’s Dominions.”⁵

[116] The Tribunal of Arbitration will not fail to observe that these recommendations were made by a board composed of the most eminent judges, jurists, publicists, and statesmen of the Empire, who had been in public life and had participated *in the direction of affairs in Great Britain during the whole period of the Southern rebellion; and that they were made under a commission which authorized these distinguished gentlemen to consider and report what changes ought be made in the laws of the Kingdom, for the purpose of giving to them increased efficiency, and bringing them into full conformity with the international obligations of England. The Tribunal of Arbitration will search the whole of that report, and of its various appendices, in vain, to find any indication that that distinguished body imagined, or thought, or believed that the measures which they recommended were not “in full conformity with international obligations.” On the contrary, the Commissioners say that, so far as they can see, the adoption of the recommendations will bring the municipal law into full conformity with the international obligations.⁶ Viewing their acts in the light of their powers and of their instructions, the United States feel themselves justified in asking the Tribunal to assume that that eminent body regarded the acts which they proposed to prevent by legislation, as forbidden by International Law.

The Foreign Enlistment Act of 1870. [117] The report of the Commissioners was made in 1868, but was not acted upon until after the breaking out of the late war between Germany and France. On the 9th of August, 1870, Parliament *passed “An act to regulate the conduct of Her Majesty’s subjects during the existence of hostilities between foreign States with which Her Majesty is at peace.” This act, which maybe found in Volume VII,¹ embodies the recommendations of the commissioners which are cited above, except that which excludes a ship which has been illegally built or armed, &c., &c., from Her Majesty’s ports.

Judicial construction of that act. Soon alter the enactment of this statute, a vessel called the “International,” was proceeded against for an alleged violation of its provisions. The case came before Sir Robert J. Philli more, one of Her Majesty’s Commissioners who signed the report in 1868. In rendering his decision on the 17th of January, 1871, he said: “This statute, passed during the last session, under which the authority of this court is now for the first time evoked, is, in my judgment, very important and very valuable; strengthening the hands of Her Majesty’s Government, and enabling them to fulfill more easily than heretofore that particular class of international obligations which may arise out of the conduct of Her Majesty’s subjects toward belligerent Foreign States, with whom Her Majesty is at peace.” ²

[118] *These eminent commissioners and this distinguished jurist have chosen their words with the precision which might have been expected of them. They declare that, in the execution of the commission, they have only sought to bring the law of England into harmony with the law of nations. Their functions ceased when they recommended certain changes with that object in view. Parliament then took up the work and adopted their suggestions. Then, as if to prevent all misapprehension, one of the commissioners, acting as a judge, held that the act of 1870 is intended to bring the law of the realm into harmony with the international duties of the Sovereign.

International law is a part of the common law of England. The United States confidently submit that the new provisions, inserted in the act of 1870, were intended, at least as against the British Government, as a re-enactment of the law of nations, as understood by the United States to be applicable to the cases of the Alabama, and other ships of war constructed in England for the use of the insurgents.

They conceive that Great Britain is committed to the doctrines therein stated, not merely by the articles of International Law expressed in its statutes, but also by the long-settled Common Law of England confirmed by acts of Parliament.

[119] * The act of 7 Anne, ch. 12, enacted in consequence of the violation of the law of nations by the arrest for debt of the Ambassador of the Czar, Peter the Great, in London, is prominent in the history of the legislation of Great Britain.³

[120] Lord Mansfield, commenting on this act in the case of Triquet vs. Buth, 3 Burrow’s Reports, p. 148, says that this act was but declaratory. All that is new in this act is the clause which gives a summary jurisdiction for the punishment of the infraction of the law. He further remarks that the Ambassador, who had been arrested, could have been discharged on motion. This act of Parliament was passed as an apology from the nation. It was sent to the Czar, finely illuminated, by an Ambassador Extraordinary, who made the national excuses in an oration. “The act was not occasioned by any doubt whether the law of nations, particularly the part relative to public ministers, was not part of the law of England, and not intended to vary an iota from it.” Lord Mansfield further says, in reference to the case of Brevot vs. Barbot, that Lord Talbot declared “that the law of nations, in its full extent, was part of the law of England;” and adds, “I remember, too, Lord Hard-wick declared his opinion to the same effect, and denying that Lord Chief* Justice Holt ever had any doubt as to the law of nations being part of the law of England, upon the occasion of the arrest of the Russian Ambassador.”¹

To the same effect is the remark of Lord Tenterden, when he says “that the act of Anne is only declaratory of the common law. It must, therefore, be construed according to the common law, of which the law of nations must be deemed a part.”²

Blackstone states the doctrine in general terms as follows: “The law of nations is a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world, in order to decide all disputes, to regulate all ceremonies and civilities, and to insure the observance of justice and good faith, in that intercourse which must frequently occur between two or more independent States, and the individuals belonging to each.

* * * * * *

[121] “In arbitrary States this law, wherever it contradicts, or is not provided for by the municipal law of the country, is enforced by the Royal Power; but since in England no Royal Power *can introduce a new law or suspend the execution of the old, therefore the law of nations (whenever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the common law of the land. And those acts of parliament which have from time to time been made to enforce this universal law, or to facilitate the execution of its decisions, are not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the Kingdom; without which it must cease to be a part of the civilized world.” ³

In the presence of these authorities it cannot be doubted that the law of nations enters integrally into the common law of England, and that any enactment by Parliament on this point derives force only from its conformity with the law of nations, having no virtue beyond that, except in so far as such enactment may afford means for the better enforcement of that law within the realm of England.

That eminent judge and jurist, Lord Stowell, even goes so far as to say that, while an act of Parliament can affirm the law of nations, it cannot contradict it or disaffirm it to any effect as respects foreign Governments.⁴

[122] *Lord Stowell’s position is in perfect’ accordance with the observation of Lord Mansfield, in another case, viz: Heathfield vs. Chilton, that, “The privileges of public ministers and their retinue depend upon the law of nations, which is part of the common law of England. And the act of Parliament of 7 Anne, ch. 12, did not intend to alter, nor can alter the law of nations.”⁵

Duties recognized by the Queen’s Proclamation of Neutrality. The next act of the British Government to which the United States invite the attention of the Tribunal, as showing to some extent that Government’s sense of its duties toward the United States, is the Proclamation of Neutrality of May 13, 1861, already alluded to.

[123] It is not claimed that a belligerent has the right, by the custom of nations, to require a neutral to enforce in its favor an executive Proclamation of the neutral, addressed to its own citizens or subjects; but it is maintained that, as between Great Britain and the United States, there is a binding precedent for such a request to Great Britain. In 1793, during General Washington’s administration, the representative of Great Britain in the United States pointed out to Mr. Jefferson *, who was then Secretary of State, acts which were deemed by Her Britannic Majesty’s Government *to be “breaches of neutrality,” done “in contravention of the President’s Proclamation” of Neutrality, and he invited the United States to take steps for the repression of such acts, and for the restoration of captured prizes. It appears that the United States complied with these requests.¹

Relying, therefore, upon this precedent, established against Great Britain, rather than upon a right under the laws of nations, which can be asserted or maintained against the United States or against other nations, the United States invite the attention of the Tribunal to the fact that two principles, in addition to those already deduced from the Foreign Enlistment Act of 1819, appear to be conceded by the Proclamation of May 13, 1861:

1. That it is the duty of a neutral to observe strict neutrality as to both belligerents during hostilities.

Definition of neutrality. Neutrality is defined by Phillimore “to consist in two principal circumstances: 1. Entire abstinence from any participation in the war; 2. Impartiality of conduct toward both belligerents.” “This abstinence and this impartiality must be combined in the character of a bona-fide neutral.”²

[124] Bluntschii defines it thus: La neutralité est la non-participation à la guerre. Lorsque l’état neutre soutient un des belligérants, il prend *part à la guerre, en faveur de celui qu’il soutient, et dès lors il cesse d’être neutre. L’adversaire est autorisé à voir dans cette participation un acte d’hostilité. Et cela n’est pas seulement vrai quand Fetat neutre livre lui-même des troupes ou des vaissoeux des guerre, rnais aussi lorsqu’il prete a un des belligerants un appui mediat en permettant, tandis qu’il pour rait l’empêclier, que, de son territoire neutre, on envoie des troupes ou des navires de guerre.”³

Hautefeuille says: “Cet état nouveau impose auxneutres des devoirs particuliers: ils doivent s’abstenir complètement de toute acte d’immixion aux hostilités et garder une stricte impartialité envers les deux belligérants. * * * L’impartialité consiste à traiter les deux belligérants de la même manière et avec une parfaite égalité dans tout ce qui concerne les relations d’état à état.”⁴

Lord Stoweil says: “The high privileges of a neutral are forfeited by the abandonment of that perfect indifference between the contending parties, in which the essence of neutrality consists.⁵

[125] Calvo collects or refers to the definitions given by the various writers on International Law, and expresses a preference for Hubner’s: “La mas *aceptable es la de Hubner, por la claridad y precision con que fija, no solo la situacion de las naciones pacificas, sino la extension que tiene sobre ellas el status belli.”⁶

2. The proclamation also distinctly recognizes the principle that the duties of a neutral in time of war do not grow out of, and are not dependent upon, municipal laws. Offenders against the provisions of the act are therein expressly forewarned that such offenses will be “acts in derogation of their duty as subjects of a neutral sovereign in the said contest, or in violation or contravention of the law of nations in that behalf

Duties recognized by instruction to British officials during insurrection. The next acts of the British Government, indicating its sense of its duties as a neutral toward the United States, to which the attention of the Tribunal is invited, are the several instructions issued during the contest, for the regulation of the official conduct of its naval officers and of its colonial authorities toward the belligerents.¹

These various instructions state or recognize the following principles and rules:

1. A belligerent may not use the harbors, ports, coasts, and waters of a neutral in aid of its warlike purposes, or as a station or place of resort for any warlike purpose, or for the purpose of obtaining any facilities of warlike equipment.

*2. [126] Vessels of war of the belligerents may be required to depart from a neutral port within twenty-four hours after entrance, except in case of stress of weather, or requiring provisions or things for the crew, or repairs, in which case they should go to sea as soon as possible after the expiration of the twenty-four hours.

3. The furnishing of supplies to a belligerent vessel of war in a neutral port may be prohibited, except such as may be necessary for the subsistence of a crew, and for their immediate use.

4. A belligerent steam-vessel of war ought not to receive in a neutral port more coal than is necessary to take it to the nearest port of its own country, or to some nearer destination, and should not receive two supplies of coal from ports of the same neutral within less than three months of each other.

Correspondence between the two Governments in 1793, 1794. [127] The attention of the Tribunal is further invited to the official opinions expressed by the representative of Great Britain in the United States during the administration of President Washington upon the duties of a neutral toward a belligerent; and to the acts of the Government of the United States during that administration, preceding, and accompanying, and subsequent to those expressions of opinion; and to the treaty concluded between the United States and Great Britain in 1794.

*The first acts took place in the United States in 1793, a year before the passage of the first American Neutrality Law, when the United States had nothing but the Jaw of nations and the sense of their duties as a neutral to guide them.

The envoy from the new French Republic, M. Genet, arrived at Charleston, in the United States, early in April, 1793, with the purpose of making the ports and waters of the country the base of hostile operations against Great Britain. The Steps which he took are fairly referred to by Lord Tenterden in the memorandum already cited.²

The Capital was then at Philadelphia, several hundred miles distant from Charleston, with few regular means of communication between the two towns. The Government of the United States was in its early infancy. Four years only had passed since it was originated, and it had not been tested whether the powers confided to it would prove sufficient for an emergency that might arise in its Foreign Relations. It had neither navy, nor force that could be converted into one, and no army on the sea-coast; and it was obliged to rely upon, and did actually call out, the irregular militia of the States to enforce its orders.

[128] Under the directions of M. Genet, privateers were fitted out, manned, and commissioned, from *Charleston and other ports, before he reached Philadelphia, and prizes were brought in by them. On the 22d of April, 1703, M. Genet not having yet reached Philadelphia, President Washington issued his celebrated proclamation, the first of its kind, in which he declared that “the duty and interest of the United States require that they should, with sincerity and good faith, adopt and pursue a conduct friendly and impartial toward the belligerent Powers;” and he warned all persons against “committing, aiding, or abetting hostilities against any of the said Powers.”¹

The news of the coming of M. Genet had preceded his arrival at Philadelphia. On the 17th of May, 1793, Mr. Hammond, the then British Minister, made complaint of his acts, and called attention to the fact that privateers were fitting in South Carolina, which he conceived to be “breaches of that neutrality winch the United States profess to observe, and direct contraventions of the Proclamation.”

[129] He invited the Government to “pursue such measures as to its wisdom may appear the best calculated, for repressing such practices in future, and for restoring to their rightful owners any captures which these particular privateers may *attempt to bring into any of the ports of the United States.”²

Two days before the receipt of that representation, Mr. Jefferson had already complained to the French Minister of these proceedings, and M. Genet, on his arrival, claimed to justify himself by the existing treaties between France and the United States.

Other cases subsequently occurred, in which Mr. Hammond intervened; for an account of which the Tribunal of Arbitration is respectfully referred to Lord Tenterden’s memorandum.

The subject of Mr. Hammond’s complaints and his demand for the restoration of the captured vessels were under consideration until the 5th of June, 1793, when answers were given simultaneously to M. Genet and to Mr. Hammond.

[130] The former was told that the United States could not tolerate these acts of war within their territories. The latter was told that effectual measures would be taken to prevent a repetition of the acts complained of; but as to restoring the prizes, it could be done for two reasons: first, because if commission’s to the privateers valid and the captures were legal, the Executive of the United States had no control over them; and if they were illegal the owners had a sufficient * remedy in the national courts; secondly; because the acts complained of had been done at a remote port, without any privity of the United States, “impossible to have been known, and therefore impossible to have been prevented government”.³

It is worthy of note that the owners did resort to the courts, and that prizes taken by these privateers were restored by judicial process.⁴

The Government of General Washington determined, however, as it had been informed of these attempts at violating the sovereignty of the nation, that it was the duty of the United States not only to repress them in future, but to restore prizes that might be captured by vessels thus illegally fitted out, maimed, equipped, or commissioned within the waters of the United States; or, if unable to restore them, then to make compensation for them.

The reasons for this course are stated in a letter from Mr. Jefferson to Mr. Hammond, dated the 5th of September, 1793.¹

[131] The United States Government also, on the 4th of August, 1793, issued instructions to collectors of the customs,² which were intended to enforce*the President’s Proclamation of April 22. We have the authority of Lord Tenterden for saying that the result of the publication of those instructions was, that the system of privateering was, generally speaking, suppressed.³

From this examination, it appears that a well conceived and extended system of violating the neutrality of the United States, when they were weak and the powers confided to their Executive were untried, was put in operation in April by the representative of one of the powerful nations of Europe, and was suppressed before August without legislation; and also that the United States undertook to make compensation for the injuries resulting from violations that had taken place where they had failed to exert all the means in their power to prevent them.

The Treaty of Nov 19, 1794. [132] It was subsequently agreed between the two Governments⁴ that in cases where restitution of the prizes should be impossible, the amount of the losses should be ascertained by a method similar to that provided by the Treaty of Washington, and that a money payment should be made by the United States to Great Britain in lieu of restitution. The examination of these claims extended *over a period of some years, and the amounts of the ascertained losses were eventually paid by the United States to Great Britain.

Construction of that Treaty by the commissioners appointed under it. In the case of the “Jamaica,” before the commission, under the 7th article of the treaty of 1794, the capturing vessel was alleged to have been armed in the United States, but the prize, (the Jamaica,) with her cargo, was burned by the captors, and never brought within the jurisdiction of the United States. Upon this bare case, without any allegation of permission or neglect by the Government of the United States as to the arming of the French cruiser, the advocate for the claimants contended that the law of nations obliged the United States to make compensation. The claim was rejected, “the board [one gentleman only dissenting] were of opinion that the case was not within the stipulation of the article under which the commissioners act.”

A rehearing being granted and counsel heard, Mr. Gore delivered the opinion sustaining the original determination. After reviewing British precedents cited by the counsel for the claimants, as supporting his view of international law, Mr. Gore says:

[133] The counsel for the claimant seemed to suppose that the obligation to compensate arose from the circumstance of the privateer having been *originally armed in the United States; but as there is not the smallest evidence to induce a belief that in this or in any other case the Government permitted, or in any degree connived at, such arming, or failed to use all the means in their power to prevent such equipment, there is no ground to support a charge on the fact that the armament originated in their ports.”¹

All these steps prior to 1794 were taken by the United States under the general rules of International Law, without the aid of a local statute, in order to perform what Mr. Jefferson called “their duty as a neutral nation to prohibit such acts as would injure one of the warring powers.”² In 1794, however, the Congress of the United States, on the application of Great Britain, passed a statute prohibiting such acts, under heavy penalties.³

The neutrality laws of the United States enacted at the request of Great Britain. [134] The general provisions of the United States act of 1818 (which is still in force) are set forth in note 1, on page 114. This act was passed at the request of the Portugese Government. The act of 1838 was enacted on the suggestion of Great Britain. In the year 1837 a formidable rebellion against Great Britain broke out in Canada. Sympathizers with the insurgents beginning to *gather on the northern frontier of the United States, Mr. Fox the British Minister at Washington, “solemnly appealed to the Supreme Government promptly to interpose its sovereign authority for arresting the disorders,” and inquired what means it proposed to employ for that purpose. The President immediately addressed a communication to Congress, calling attention to defects in the existing statute, and asking that the Executive might be clothed with adequate power to restrain all persons within the jurisdiction of the United States from the commission of acts of the character complained of. Congress, thereupon, passed the act of 1838. Thus Great Britain once more asked the United States to amend their neutrality laws, in British interest, so as to give more power to the Executive, and the request was complied with.

Case of the bark Maury. 135 In the year 1855, Great Britain being then at war with Russia, it was supposed by the British Consul, at New York, that a vessel called the Maury, which was being innocently fitted out at New York for the China trade, was intended as a Russian privateer. The British Minister at Washington at once called the attention of Mr. Marcy, the then Secretary of State, to this vessel. The affidavits which he inclosed for the consideration of the Secretary of State fell far, very far short of *the evidence which Mr. Adams submitted to Earl Russell in regard to the Liverpool cruisers. The whole foundation which the British Minister furnished for the action of the United States was the “belief” of the Consul, his lawyer, and two police officers, that the vessel was intended for Russian service. This was communicated to the Government of the United States on the 11th of October. Notwithstanding the feebleness of the cion, the prosecuting officer of the United States was, on the of 12th October, instructed by telegraph to “prosecute if cause appear, and at work on the 13th in order to prevent a violation of the sovergnity of the United States to the injury of Great Britain.⁴ The proceedings given at length in the accompanying volumes show with what rapidity and zeal the investigation was made, and that the charge was at once proved to be unfounded.

Principles thus recognized by the two Governments. In all this correspondence and these precedents, the following principles appear to have been assumed by the two Governments:

1. That the belligerent may call upon the neutral to enforce its municipal proclamations as well its municipal laws.

2. 136 That it is the duty of the neutral, when the fact of the intended violation of its sovereignty is disclosed, either through the agency of the representative of the belligerent, or through the vigilance of the neutral, to use all the means in its power to prevent the violation.

3. That when there is a failure to use all the means in the power of a neutral to prevent a breach of the neutrality of its soil or waters, there is an obligation on the part of the neutral to make compensation for the injury resulting therefrom.

Obligation to make compensation, for injuries. [137] The United States are aware that some eminent English publicists, writing on the subject of the “Alabama Claims,” have maintained that the obligation in such case to make compensation would not necessarily follow the proof of the commission of the wrong; but the United States confidently insist that such a result is entirely inconsistent with the course pursued by Great Britain and the United States, during the administration of General Washington, when Great Britain claimed of the United States compensation for losses sustained from the acts of cruisers that had received warlike additions in the ports of the United States, and the United States admitted the justice of the claim, and paid the compensation demanded. The United States also point to the similar compensation made by them to Spain in the treaty of 1819, for similar injuries inflicted on *Spanish commerce during the War of the Independence of the Spanish American Colonies, as showing the sense of Spain on this point.

In the course of the long discussions between the two Governments on the Alabama claims, Great Britain has attempted to justify its course by a reference to the conduct of the United States toward Portugal between 1816 and 1822.¹

Correspondence between the United States and Portugal.

These several replies of Mr. Adams amply defended the course of the United States in that affair. From the replies and from the official documents referred to in them, it would appear that in the year 1850 the United States had brought to the point of settlement a long-standing claim against Portugal, for the destruction of the American armed brig General Armstrong, in the harbor of Fayal, in the year 1814. They were at the same time pressing some other claims against Portugal, and were conducting a correspondence with the Portuguese Legation at Washington, growing out of the seizure of a Portuguese slaver.²

[138] The Portuguese Government, as an offset to these claims of the United States, revived some exploded claims of Portugal against the United States, for alleged violation of neutrality, that had slumbered for nearly thirty years. These are the claims referred to by Earl Russell in his note to*Mr. Adams of May 4, 1865,³ and his note to the same of August 30, 1865,⁴ and his note to the same dated November 2, 1865.⁵ Lord Russell asserts that the complaints of Portugal were more frequent and extended to a larger amount of property after 1818 than they had done before. Mr. Adams denies this allegation,⁶ and his denial is supported by the evidence in possession of the Government of the United States.

[139] [140] The facts appear to be these: On the 20th December, 1816, the Portuguese Minister informed the then Secretary of State (Mr. Monroe) of the fitting out of privateers at Baltimore to act against Portugal, in case it should torn out that that Government was at war with the “self-styled Government of Buenos Ay res.” He further stated that he did not make the application in order “to raise altercations or to require satisfaction,” but that he solicited “the proposition to Congress of such, provisions by law as will prevent such attempts for the future,” being “persuaded that my [his] magnanimous Sovereign will receive a more dignified satisfaction, and worthier of his high character, by the enactment of such laws by the United States.” Mr. Monroe replied, on the 27th of the same month, “I have communicated your letter to the President, and have now the honor to transmit to you a copy *of a message which he/has addressed to Congress on the subject, with a view to obtain such an extension, by law, of the Executive power as will be necessary to preserve the strict neutrality of the United States, * * * and effectually to guard against the danger in regard to the vessels of your Sovereign which you have anticipated.” The act of 1817 was passed and officially communicated to the Portuguese Minister on the 13th of March, 1817. On the 13th of May, 1817, the Portuguese Minister informed the Secretary of State that although “the law passed at the last session of Congress obviated a great part of the evils” of which he complained, he feared there would be a lack of vigilance on the part of some of the officials, and he asked for special instructions to them. On the 8th of March, 1818, he complained to Mr. John Quincy Adams, then Secretary of State, of the capture of “three Portuguese ships, captured by privateers fitted in the United States, manned by American crews, and commanded by American captains, though under insurgent colors;” and he asked for satisfaction and indemnification for the injury. The note making this complaint contained neither proof of the allegations in the note as to the fitting out of vessels in the United States, or as to their being manned by Americans, nor indications from which the United States might have discovered * those facts for themselves. The Secretary of State, therefore, in reply to such an allegation, very properly stated the fact that the United States had “used all the means in its power to prevent the fitting out and arming of vessels in their ports to cruise against any nation with whom they were at peace,” and had “faithfully carried into execution the laws to preserve inviolate the neutral and pacific obligations of the Union;” and therefore could not consider themselves “bound to indemnify individual foreigners for losses by captures.” It will not escape the notice of the Tribunal that Mr. Adams calls attention to the distinction between the national obligations under the law of nations and the duty of the Government to execute the municipal law; and that he grounds his refusal upon the fact that both have been complied with.

[141] The Portuguese Minister next complains (October 15, 1818) that a privateer is fitting out in Baltimore, and the Secretary of State orders a prosecution and asks for the names of the witnesses, and it appears that before November 13th the Portuguese Minister is informed that the grand jury have found a bill against the accused. On the 14th of November the Portuguese Minister sends to the Secretary of State depositions and the names of witnesses, and informs him that he is alarmed at the “thick crowd of individuals who*are engaged in this iniquitous business,” and that “great care has been taken to intercept the notice of such facts from the knowledge of the Executive. “Mr. Adams, on the 18th of November, informs the Minister that the evidence has been placed in the hands of the prosecuting attorney of the United States. It thus appears that the second complaint was disposed of to the satisfaction of the representative of Portugal.

The third complaint, made on the 11th of December, 1818, states that an armed vessel called the Irresistible, sailing under so called Artigan colors, was committing depredations on the coast of Brazil, and that the commander and crew of the vessel were all Americans. It will be observed that in this complaint there is no charge made of an illegal use of the soil or waters of the United States in violation of their duties as a neutral. The charge is that citizens of the United States, beyond their jurisdiction, have taken service under a belligerent against Portugal.

[142] The next communication from the Portuguese Minister is made on the 4th of February, 1810. He asks to have the neutrality act of 1817 continued. The Secretary of State answers, on the 9th, that that has already been done by the passage of the act of 1818. This appears to have been regarded as entirely satisfactory.

[142] [143] *The next note is dated the 17th of March, 1819. Although stating that there were persons in the United States “interested in this iniquitous pursuit of plundering the lawful property of an inoffensive friendly nation,” in which statement the Minister undoubtedly supposed that he was correct, he says that he has “abstained from written applications about the new individual offenses,” and he makes no particular complaint, furnishes no evidence, and indicates no suspicions. It appears to be the object of the note to induce the Government of the United States to withdraw its recognition of the Artigan flag. “If this,” he says, “is once declared illegal, and the prizes made under it acts of piracy, all occasions of bitterness and mistrust are done away.” “I can, in the capacity of Minister of my Sovereign, certify you solemnly, and officially too, if necessary, that Artigas and his followers have been expelled far from the countries that could afford them the least means and power of navigating, and consequently have no right to fight by sea. What becomes, then, of the rights of privateers under this flag?” When the Tribunal come to consider the case of the Shenandoah at Melbourne they will find this language, which was referred to with approbation, and assumed by Earl Russell,¹ to be exactly in point in *disposing of the claims growing out of the acts of that vessel.

On the 22d of April the Secretary of State acknowledges the note of December 11, 1818, and says that he is informed the commander of the Irresistible has returned to Baltimore, and will be prosecuted for a violation of neutrality, and asks the Minister to furnish proof for the trial.

On the 23d of November, 1819, the Minister again complained. He says: “One city alone on this coast has armed twenty-six ships, which prey on our vitals, and a week ago three armed ships of this nature were in that port waiting for a favorable occasion of sailing for a cruise.” But he furnishes no facts, and he gives neither proof nor fact indicating the city or the district which he suspected, and nothing to afford the Government any light for inquiry or investigation. On the contrary, he says: “I shall not tire you with the numerous instances of these facts;” and he adds, as if attaching little or no real importance to the matter: “Relying confidently on the successful efforts of this Government, I choose this moment to pay a visit to Brazil.”

[144] On the 4th of June, 1820, the Minister, not yet having departed, informs the Secretary of State that he desires to offer his “thanks for the law that prohibits the entrance of privateers in the *most important ports of the Union;” that he “acknowledges the salutary influence of the Executive in obtaining these ameliorations;” and that he is “fully persuaded of the sincere wishes of this Government to put a stop to practices so contrary to friendly intercourse.”

On the 8th of June, 1820, he gives information of a formidable privateer, which he says is to be fitted out at Baltimore, and adds that he “has not the least doubt that the supreme Executive has both the power and the will of putting a stop to this hostile armament;” to which the Secretary of State, on the 20th of July, replies that “such measures have been and will continue to be taken, under direction of the President, as are within the competency of the Executive, and may serve to maintain inviolate the laws of the United States applicable to the case.”

[145] On the 16th of July the Minister “laid before this Government the names and value of nineteen Portuguese ships and their cargoes, taken by private armed ships fitted in the ports of the Union by citizens of these States;” but he did not accompany this allegation with proof of such fitting, or with anything tending in the remotest degree to fix a liability on the United States, or to afford them the means of an independent examination. He also proposed a joint commission for the set*tlement of these matters, which the Secretary of State, on the 30th of September, 1820, declined, saying that “the Government of the United States has neither countenanced nor permitted any violation of neutrality by their citizens. They have, by various and successive acts of legislation, manifested their constant earnestness to fulfill their duties toward all parties to the war. They have repressed every intended violation of them which has been brought before their courts and substantiated by testimony.” Other claims were transmitted to the United States Government on the 4th of December, 1820, unaccompanied, as had been the invariable case before, by anything tending to show a liability in the United States to make compensation.

The case appears to have been closed by an offer from Portugal, on the 1st of April, 1822, to grant to the United States exceptional commercial advantages if the United States would recognize these claims, and the refusal of the United States, on the 30th of April, to do so.

[146] It is worthy of remark that in Earl Russell’s elaborate statement of this correspondence, in his note of the 30th of August, 1865, he omits, with a completeness which argues design, certain parts of it which showed that the United States were animated with a constant desire to perform their *international duties. Thus, nothing is said of the Portuguese note of February 4, 1819, asking that the neutrality act of 1817 may be continued in force, and the American reply stating that it had been so continued. Nothing is said of the American note of the 22 of April, 1818, stating that the commander of the Irresistible, the vessel referred to in the Portuguese note of December 11, 1818, had returned to Baltimore and would be prosecuted. The American note of the 20th of July, 1820, is also omitted, in which, in answer to the Portuguese note of the 8th of June, 1820, it is stated that measures have been, and will continue to be, taken to maintain inviolate the laws of the United States.

The tribunal of arbitration cannot fail to observe that these suppressed notes had an important bearing in forming a judgment upon the correctness of the conduct of the Government of the United States in this case—a case which has received the official approval of Earl Russell, as Her Majesty’s Principal Secretary of State for Foreign Affairs. From a candid review of the whole correspondence, it appears that the United States admitted or asserted the following propositions, to which Her Majesty’s government, through Earl Russell, has given its assent:

1. [147] Principles recognized in that correspondence. That a neutral government is bound to use *all the means in its power to prevent the equipping, fitting out, or arming, within its jurisdiction, of vessels intended to cruise against a power with which it is at peace.

2. If the means within its power are, in the opinion of either belligerent, inadequate for the purpose, it is bound to receive suggestions of changes from the belligerent, and if it be true that the means are inadequate, it should so amend its laws, either in accordance with such suggestions or otherwise, as to put new and more effective means in the hands of its Executive.

3. That it is bound to institute proceedings under its laws against all vessels as to which reasonable grounds for suspicion are made to appear, even if the grounds for suspicion fall short of legal proof.

[148] The Government of Portugal, during the whole correspondence, offered no evidence to prove that captures had been made by armed vessels illegally fitted out, equipped, or armed in the United States, nor even statements of facts tending to lead to the discovery of such evidence, which were not at once used for the purpose of detaining such vessels, or of punishing the guilty parties; nor did they contest by proof the allegation of Mr. John Quincy Adams that the Government of the United States had done everything in its power to perform its duties as a neutral, and to execute its laws. The *correspondence shows exclusively that in every case in which the United States was furnished either with positive legal proof, or with such an intimation of the facts as would enable them to pursue the investigation themselves, they acted with the vigor which was required of them by International Law, and which Great Britain failed to show in similar cases during the rebellion.

The claims lay buried until they were exhumed by Mr. Figaniere, in 1850, as an offset to the “General Armstrong” case; and would have been forgotten if Earl Russell had not rescued them from oblivion.

Rules in the Treaty of Washington. [149] The latest official act of Her Majesty’s Government, indicating the views of Great Britain as to the duties of a neutral in time of war, is to be found in the rules contained in Article VI of the Treaty of Washington. It is true that it was thought essential by the British negotiators to insert in that instrument a declaration on the part of Her Majesty’s Government that they could not consent to those rules as a statement of principles of International Law which were in force at the time when the claims now under discussion arose. But the United States were then, and are still, of the opinion, and they confidently think that the Tribunal of Arbitration will agree with them, not only that those rules were then in force, but *that there were also other rules of International Law then in force, not inconsistent with them, defining, with still greater strictness, the duties of a neutral in time of war.

Article VI of the Treaty of Washington contains 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 warlike 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.”

[150] Article VII contains the following provision as to compensation: “In case the Tribunal finds * that Great Britain has failed to fulfill any duty or duties as aforesaid, it 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;” and Article X provides that, “in case the Tribunal find that Great Britain has failed to fulfill any duty or duties as aforesaid, and does not award a sum in gross, the high contracting parties agree that a Board of Assessors shall be appointed to ascertain and determine what claims are valid and what amount or amounts shall be paid by Great Britain to the United States on account of the liability arising from such failure.”

The obligation to prevent vessels of war from being fitted out, armed, or equipped, within the jurisdiction of a neutral, when such vessels are intended to cruise or to carry on war against a Power with which the neutral is at peace, is recognized almost in the identical terms in which it was stated in the original United States act of 1794, which Mr. Canning said was passed at the request of the British Government, and in the British act of 1819, passed to aid Great Britain in the performance of its duties as a neutral.

What is “due diligence.” [151] The rules impose upon the neutral the obligation to use due diligence to prevent such fitting out, arming, or equipping. These words are not regarded by the United States as changing in any * respect the obligations of a neutral regarding the matters referred to in the rules, as those obligations were imposed by the principles of International Law existing before the conclusion of the Treaty.

The phrases “negligence” and “diligence,” though opposite, are correlative expressions: the presence of the one implies the absence of the other. It happens that in the ordinary course of judicial proceedings the term “negligence” is of the one most frequently employed, and is therefore the one most often commented on and explained by writers on law. “Negligence,” which is only the absence of the diligence which the nature and merits of any particular subject and the exigencies of any particular case demand as “due” from the nature of its inherent circumstances, implies blamable fault, called in the Born an law culpa, with responsibility for consequences. The idea of obligation, either legal or moral, and of responsibility for its non-performance, is found in all the forms and applications of the question, either of diligence or of negligence.

[152] Legal writers in England, in America, and on the Continent of Europe, have treated this matter in reference to numerous subjects of controversy, public and private. It has come under the consideration of courts in questions relating to the *custody of property, to the performance of contracts, to the transportation of persons or property, to the collision of ships and railway-trains, to the discharge of private trusts, to the execution of public duties, and in many other ways.

In most of these cases, with the Roman, Continental, and Scottish jurists, and to a certain extent with English and American courts, the question has generally been put as one of negligence or culpa, rather than as an absence of diligence. But, nevertheless, the phrase “due diligence,” exacta diligentia, is of received use in the civil law.¹

The extent of the diligence required to escape responsibility is, by all authorities, gauged by the character and magnitude of the matter which it may affect, by the relative condition of the parties, by the ability of the party incurring the liability to exercise the diligence required by the exigencies of the case, and by the extent of the injury which may follow negligence.

[153] One of the earliest and one of the best of the English expositors of the Roman law is Ayliffe, (New Pandects of Roman Civil Law as anciently established in that Empire and practiced in most European Nations, London, 1731.) He says: “A fault is blamable through want of taking proper *care; and it obliges the person who does the injury, because by an application of due diligence it might have been foreseen and prevented.”²

[154] [155] *Mr. Justice Story has elaborately discussed the meaning of these terms, and the extent of diligence required to avoid responsibility. He says, as the result of a comparative examination of the authorities of different nations, “What is usually done by pru*dent men in a particular country in respect to things of a like nature, whether it be more or less, in point of diligence, than what is exacted in another country, becomes in fact the general measure of diligence.”¹

[156] Following the example of Sir William Jones, *and other writers on the civil law, Mr. Justice Story favors the idea that there may be three degrees of diligence, and three degrees of negligence, which are capable of being accurately defined and applied to the various circumstances of life. But while asserting, as the authorities supported him in doing, that not only the Roman law, but the jurists of Continental Europe and of Scotland all recognize this division, he candidly concedes the difficulty of applying such a fictitious system, and he is obliged to admit the general and only sound principle, that “diligence is usually proportioned to the degree of danger of loss, and that danger is, in different states of society, compounded of very different elements.”¹

The highest court of the United States has doubted the philosophy of grading the degrees of diligence and negligence into fixed classes.²

The Scottish courts have laid down a rule which is perhaps more philosophical—that where an injury has been suffered through the act or omission of another, it must be shown, in order to avoid liability, that the accident was caused without any fault of the party doing or suffering the act or omission, and through some latent cause, which could not be discerned, obviated, controlled, or averted.³

[157] *In the discussion upon the Treaty of Washington in the House of Lords, Lord Granville, the Minister for Foreign Affairs, is represented as saying: “The obligation to use due diligence implies that the Government will do all in its power to prevent certain things, and to detain vessels which it has reasonable ground for believing are designed for warlike purposes.”⁴ Lord Cairns, in the same debate, is represented as saying: “The point turns upon the words ‘due diligence.’ Now, the moment you introduce those words you give rise to another question, for which I do not find any solution in this rule. What is the standard by which you can measure due diligence! Due diligence by itself means nothing. What is due diligence with one man, with one Power, is not due diligence with another man, with a greater Power.” Sir Roundell Palmer, in a subsequent debate in the House of Commons, said that he supposed that due diligence “meant that a neutral should use, within a reasonable sense, all the means legitimately in its power.”⁵

[158] It is needless to say that the United States do not agree in these official definitions by Lord Granville and Sir Roundell Palmer, in the sense in which*they are probably made. The definition to which Lord Cairns has given the weight of his authority appears to be nearer to the opinions as to these words, entertained by the United States.

The United States understand that the diligence which is called for by the Rules of the Treaty of Washington is a due diligence; that is, a diligence proportioned to the magnitude of the subject and to the dignity and strength of the Power which is to exercise it:—a diligence which shall, by the use of active vigilance, and of all the other means in the power of the neutral, through all stages of the transaction, prevent its soil from being violated:—a diligence that shall in like manner deter designing men from committing acts of war upon the soil of the neutral against its will, and thus possibly dragging it into a war which it would avoid:—a diligence which prompts the neutral to the most energetic measures to discover any purpose of doing the acts forbidden by its good faith as a neutral, and imposes upon it the obligation, when it receives the knowledge of an intention to commit such acts, to use all the means in its power to prevent it.

No diligence short of this would be “due;” that is, commensurate with the emergency, or with the magnitude of the results of negligence. Understanding the words in this sense, the United States finds them identical with the measure of duty which Great Britain had previously admitted.

[159] Fitting out, arming, or equipping each an offense. *It will also be observed that fitting out, or arming, or equipping, each constitutes in itself a complete offense. Therefore a vessel which is fitted out within the neutral’s jurisdiction, with intent to cruise against one of the belligerents, although not equipped or armed therein, (and vice versa) commits the offense against International Law, provided the neutral government had reasonable ground to believe that she was intended to cruise or carry on war against such belligerent, and did not use due diligence to prevent it.

The second clause of the first Rule. The neutral is required by the second clause of the first Rule of the Treaty to prevent the departure from its jurisdiction of any vessel intended so to cruise or carry on war, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use.

Reasons for change of language. [160] The Tribunal of Arbitration probably will not have foiled to observe that a new term is employed here. In the first clause of the first Rule the obligation of the neutral is limited to the prevention of the “fitting out, arming, and equipping” the vessel. In the second clause, the language is much broader: a vessel which has been “specially adapted, in whole or in part, to warlike use,” may not be permitted to depart. The reasons for this change may probably be found in the different interpretations which have been put by the Exe*cutive and Judicial Departments of the two Governments upon the words “fitting out” and “equipping,” and in the desire of the negotiators of the Treaty to avoid the use of any words that could be deemed equivocal. The United States will endeavor to explain to the Tribunal what these differences of interpretation were.

[161] [162] The eighth section of the United States law of 1818 empowers the President to take possession of and detain vessels which have been “fitted out and armed” contrary to the provisions of the act. In the year 1869, while there was a state of recognized war between Spain and Peru, (although there had been no active hostilities for several years,) the Spanish Government made contracts for the construction of thirty steam gun-boats in the port of New York. After some of these boats were launched, but while most of them were on the stocks, and before any had received machinery or had been armed, the Peruvian Minister, on behalf of his Government, represented to the Government of the United States that this was being done in violation of the neutrality of the United States. The President, proceeding under the section of the statute above referred to, took possession of the vessels, and they remained in the custody of the naval forces of the United States until they were released, with*the consent of the Peruvian Minister at Washington. This was done under the assumption that the construction of a vessel in neutral territory during time of war, which there is reasonable ground to belive may be used to carry on war against a power with which the neutral is at peace, is an act which ought to be prevented; and that the constructing or building such a vessel was included in the offense of fitting it out. The same interpretation (in substance) has been given to this language by the judicial authorities of the United States.¹ The British tribunals have given a different opinion upon the meaning of these words. In the case of the Alexandra,² against which proceedings were had in London, in 1863, for an alleged violation of the provisions of the act of 1819, it was held that the proof of the construction of a vessel for the purpose of hostile use against the United States did not establish such an equipment, or fitting out, or furnishing, as would bring the vessel within the terms of the Foreign Enlistment Act¹ and enable the Government to hold it by proceedings under that statute. When the Joint High Commissioners met at Washington, *and had to consider what words they would use in the Treaty, they found the Executive of the United States and the Judiciary of Great Britain differing as to the meaning of these important words.² The Tribunal of Arbitration may therefore reasonably presume that the framers of that Treaty, after the experience of the American insurrection, sought for language which would, beyond any question, indicate the duty of the neutral to prevent the departure from its ports of any vessel that had been specially adapted for the hostile use of a belligerent, whether that adaptation began when the keel was laid to a vessel intended for such hostile use, or whether it teas made in later stages of construction, or in fitting out, or in furnishing, or in equipping, or in arming, or in any other way.

[163] The undoubted duty of the neutral to detain such a vessel, although it had not been formulated by Great Britain in any of the acts prior to 1861 which have been passed in review, is understood to have been included in the obligation to prevent her construction. The United States regard this duty as one that existed by the law of nations prior to the Treaty of Washington; but as that *Treaty provides that, for the purpose of the present discussion, the rule is to be taken as having the force of public law during the Southern Rebellion, it is needless to discuss that point.

Continuing force of this rule. The United States invite the particular attention of the Tribunal to the continuing character of the second clause of this rule. The violation of the first clause takes place once for all when the offending vessel is fitted out, armed, or equipped within the jurisdiction of the neutral; but the offense under the second clause may be committed as often as a vessel, which has at any time been specially adapted, in whole or in part, to warlike use, within the jurisdiction of the neutral, enters and departs unmolested from one of its ports. Every time that the Alabama, or the Georgia, or the Florida, or the Shenandoah came within British jurisdiction, and was suffered to depart, there was a renewed offense against the sovereignty of Great Britain, and a renewed liability to the United States.

Duty to detain offending vessels admitted by Great Britain. [164] [165] The British Government, certainly once, if not oftener, during the rebellion, admitted its duty to detain these cruisers. Mr. Cobden stated it forcibly in a speech in the House of Commons:³ “The Government admit, through their legal adviser, that they have the power, if they choose to exercise it, to prevent these vessels from entering our harbors; but the honor, able and learned gentleman doubts the expediency of exercising it, and his reason is that he thinks we have not clear proof of guilt. This brings me to a striking piece of inconsistency on the part of the honorable and learned gentleman. He begins with administering a solemn exhortation, and something like a solemn reproof to English shipbuilders, for infringing our neutrality laws and disregarding the Queen’s Proclamation by building these ships. Well, but if they are violating our neutrality and disregarding the Queen’s Proclamation, it must have been because they built these vessels for a belligerent to be employed against some Power with which we are at peace. The honorable and learned gentleman assumes that these individuals are guilty of these acts. He knows they have been guilty of these acts; he knows that these three vessels in particular, and the Alabama more especially, have been built for the Confederate Government, and employed solely for that Government, and yet he doubts the expediency of stopping them from entering our ports. He speaks as though we were asking that he should send out ships of war to order away these vessels without trial. He says there must be legal proof; but it does not require legal proof to warrant you in telling a Government, ‘You have got these vessels clandestinely; you got them by the infringement of our neutrality *code, or, at least we suspect you upon fair grounds of doing so; and unless you prove that they came legitimately into your hands, we must refuse them the hospitality of our ports.’ Why, how do you act in private life? You hear charges and reports compromising the honor of your acquaintance or friend. You may have a moral conviction in your mind that that individual’s honor is compromised, but you may not have legal proof of it, and still you may be quite justified in saying to him, ‘Until you clear up these charges, which on the face of them criminate you, I must refuse you the hospitality of my house.’ I hold that you have the right to say the same thing in regard to these cruisers. But what was the course of the Government in the case of the Alabama? They told Mr. Adams, the American Minister, that they should give orders to stop the Alabama, either at Queenstown or Nassau. Therefore the principle was recognized in the case of that vessel that you had a right to stop her when she reached your jurisdiction. I say, therefore, in the same way, prevent their entering your harbors until they give an account of themselves, to show how they became possessed of that vessel. This has a most important bearing, and one so apparent that it must be plain to the apprehensions of every honorable gentleman who hears it.”

[166] Also recognized by France. The French Government, during the insurrec*tion, practically asserted the same power in the neutral to protect its violated sovereignty. The British Government in 1864 sold a screw gun-boat to persons who proved to be agents of the insurgents. This was done at a time when it was a matter of public notoriety that those agents were in England making great efforts to fit out a navy. The purchasers took the vessel to Calais to complete the equipment. On the way from the Thames to Calais the name of the vessel was changed to the “Rappahanock,” the insurgent flag was hoisted, an insurgent officer, holding an insurgent commission, took the command, and the crew were mustered into the service of the insurgents. On arrival at Calais, attempts were made to complete the equipment. The French Government stopped this by placing a man-of-war across the bows, and holding the vessel as a prisoner, and the Rappahannock was thus prevented from destroying vessels and commerce, sailing under the flag of a nation with which France was at peace.

The second Rule of the Treaty. The second Rule provides that a neutral government is bound 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.

[167] *A question has been raised whether this rule is understood to apply to the sale of military supplies or arms in the ordinary course of commerce. The United States do not understand that it is intended to apply to such a traffic. They understand it to apply to the use of a neutral port by a belligerent for the renewal or augmentation of such military supplies or arms for the naval operations referred to in the rule. Taken in this sense, the United States maintain that the same obligations are to be found, (expressed in other words,) first, in the Foreign Enlistment Act of 1819 and, secondly, in the instructions to the naval forces of Great Britain during the rebellion.

The Tribunal of Arbitration will not fail to observe the breadth of this rule.

[168] The ports or waters of the neutral are not to be made the base of naval operations by a belligerent. Vessels of war may come and go under such rules and regulations as the neutral may prescribe; food and the ordinary stores and supplies of a ship, not *of a warlike character, may be furnished without question, in quantities necessary for immediate wants the moderate hospitalities which do not infringe upon impartiality may be extended* but no act shall be done to make the neutral port a base of operations. Ammunition and military stores for cruisers cannot be obtained there; coal *cannot be stored oh ere for successive supplies to the same vessel, nor can it be furnished or obtained in such supplies; prizes cannot be brought there for condemnation. The repairs that humanity demand can be given, but no repairs should add to the strength or efficiency of a vessel, beyond what is absolutely necessary to gain the nearest of its own ports.

In the same sense are to be taken’ the clauses relating to the renewal or augmentation of military supplies or arms and the recruitment of men. As the vessel enters the port, so is she to leave it, without addition to her effective power of doing injury to the other belligerent, if her magazine is supplied with powder, shot, or shells; if new guns are added to her armament; if pistols, or muskets, or cutlasses, or other implements of destruction, are put on board; if men are recruited even if, in these days when steam is a power, an excessive supply of coal is put into her bunkers, the neutral will have failed in the performance of its duty.

The third Rule of the Treaty. [169] The third Rule binds the neutral to exercise the same measure of diligence as required by the first Rule, in order to prevent, in its own ports and waters, and as to all persons within its jurisdiction, any violation of the obligations and duties prescribed by the first and second Rules. The same wakefulness and watchfulness, proportioned to the *exigencies of the case and the magnitude of the interests involved, that was required by the first Rule, is likewise required in the performance of the duties prescribed by the second Rule, without which the neutral will have failed in the performance of his duty.

Duty to make compensation for injuries. The express recognition in the Treaty of an obligation (in case the Tribunal finds that Great Britain has failed to fulfill any of her duties in these respects) to pay to the United States the amount or amounts that may be found due, “on account of the liability arising from such failure,” makes it unnecessary, in this connection, to do more than to refer to what has already been said on that subject.

Foregoing views in ‘harmony with opinions of European publicists. [170] The doctrines of International Law which have thus been deduced from the practice of Great Britain are in harmony with the views of the best publicists. The discussions between the two Governments growing out of the acts herein complained of, and unfortunately made necessary by the unwillingness of Great Britain to apply to the United States the same measure of justice which was applied to Spain in 1819, to Portugal in 1827, and which was received by Great Britain from the United States in 1793, have evoked the comments of many writers in England, in America, and on the continent of Europe. For obvious reasons the opinions of the Eng*lish or American* writers favorable to their respective countries—(as for instance Professor Bernard in Great Britain or President Woolsey in America)—will not be regarded.

On the 20th of May, 1865,¹ Mr. Adams had occasion to quote to Lord Russell the opinion of Hautefeuille: “What the obligation of Her Majesty’s Government really was, in this instance,” he said, “is so clearly laid down by a distinguished writer, notoriously disposed never to exaggerate the duties nor to undervalue the privileges of neutrals, that I will ask the liberty to la before you his very words: ‘Le fait de construire un bâtiment de guerre pour le compte d’un belligérant, ou de l’anner dans les états neutres, est une violation du territoire. Toutes les prises faites par un bâtiment de eette nature sont illégitimes, en quelquelieu qu’elles été faites. Le souverain offensé a le droit de s’en emparer, même de force, si elles sont amenées dans ses ports, et d’en réclamer la restitution lorsqu’elles sont, comme cel a arrive en général, conduites dans les ports hors de sa juridiction. Il pent également réclamer le désarmement du bâtiment illégalement armé sur son territoire, et mêmo le détenir, s’il entre dans quelque lieu soumis à sa souveraineté, jusqu’à ce qu’il ait été désarmé.’”²

[171] Bluntschli. *The distinguished Dr. Bluntschli, professor at the University of Heidelberg, in his pamphlet, entitled Opinion impartiale sur la question de l’Alabama et sur la manière de la résoudre,” reprinted at Berlin, in 1870, from the Revue de Droit International, says as follows:

“La violation des devoirs d’un état ami, dont l’Angleterre se rendit coupable lors de l’équipement de l’Alabama, fut la circonstance la plus éclatante, mais non la seuie dans laquelle se révélèrent les dispositions hostiles du gouvernement anglais. Il y eut encore d’autres croiseurs audistes du même genre. Les nombreux coureurs de blocus qui transportaient en même temps de la contrebande de guerre, avaient tous également leur origine et leurs propriétaires en Angleterre. Partout où les troupes de l’union finirent par l’emporter et s’emparèrent des places ennemies, elles trouvèrent des armes anglaises et des canons anglais.

“Tous les faits ainsi allèguès n’ont pas la meme importance. Mais plusieurs d’entre eux, si taut est qu’il faille les tenir pour avouès ou prouvés,—ce dont nous n’avons pas à juger ici,—doivent certainement etre considérés comme constituant une infraction aux devoirs d’un état neutre.

[172] “L’état neutre qui vent garantir sa neutralité, doit s’abstenir d’aider aucune des parties belligé*rantes dans ses opérations de guerre. Il ne peut prêfer son territoire pour permettre a Fune des parties d’organiser en lieu sûr des enterprises militaires. Il est obligé de veiller fidèlement à ce que des particuliers n’arment point surson territoire des vaisseaux de guerre, destinés à être livrés à une des parties belligérantes. (Bluntschli, Modernes Völkerrecht, § 763.)

“Ce devoir est proclamé par la science, et il dérive tant de l’idée de neutralité que des égards auxquels tout état est nécessairement tenu envers les autres états, avee lesquels il vit en paix et amitié.

“La neutralité est la non-participation à la guerre. Lorsque l’état neutre soutient un des belligérants, il prend part à la guerre en faveur de celui qu’il soutient et dès lors il cesse d’être neutre. L’adversaire est autorisé à voir dans cette participation un acte d’hostilité. Et cela n’est pas seuleraent vrai quand l’état neutre livre lui-même des troupes ou des vaisseaux de guerre, mais aussi lorsqu’il prête à un des belligérants un appui médial en perinettant, tandis qu’il pourrait l’empêcher, que, de son territoire neutre, on envoie des troupes ou des navires de guerre.

[173] “Partout oil le droit de neutralité étend le cercle de son application, il restreint les limites de la guerre et de ses désastreuses conséquences, et il *garantit les bienfaits de la paix. Les devoirs de l’état neutre envers les belligérants sont, en substance, les mêmes que ceux de l’état ami, en temps de paix, vis-à-vis des autres états. Aucun état ne pent non plus, en temps de paix, permettre que l’on organise sur son territoire des agressions centre un état ami. Tons sont obligés de veiller à ce que leur sol ne devienne pas le point de départ d’entreprises militaires dirigées contre des états avec lesquels ils sont en paix.

“Ces devoirs internationaux universels sont aussi consacrés, dans le droit public interne, par les législations anglaises et américaines. La loi anglaise du 3 juillet 1819 contient à ce sujet (art. 7) la disposition suivante:

[174] “‘And be it further enacted, That if any person within any part of the United Kingdom, or in any part of His Majesty’s Dominions beyond the seas, shall, without the leave and license of His Majesty for that purpose first had and obtained as aforesaid, equip, furnish, fit out, or arm, or attempt or endeavor to equip, furnish, fit out, or arm, or procure to be equipped, furnished, fitted out, or armed, or shall knowingly aid, assist, or be concerned in the equipping, furnishing, fitting out, or arming of any ship or vessel, with intent or in order that such ship or vessel shall be employed in the service of any foreign prince, state, or potentate, or of any *foreign colony, province, or part of province, or people, as a transport or store-ship, or with intent to cruise or commit hostilities against any prince, state, or potentate, or against the persons exercising, or assuming to exercise, the powers of government in any colony, province, or part of any province or country, or against the inhabitants of any foreign colony, province, or part of any province or country with whom His Majesty shall not then be at war ...’

“Cette loi défend incontestablement tout appui prêté en cas tie guerre, peu importe que les parties belligérantes soient des états étrangers re-connus, ou des usufrpateurs du pouvoir, ou des colonies, ou des provinces révoltées. Done, le gouvernement anglais, en perinettant intentionnelle-ment ou par une négligence évidente,—alors qu’il aurait pu et dû l’empêcher,—l’équipenient de 1’Alabama, a méconnu du même coup un devoir international à l’égard de l’union américaine et les prescriptions d’une loi nationale. Par ces motifs il est aussi, d’après les règles du droit des gens, responsable envers l’état lésé.

[175] “Il est notoire que la loi anglaise est une imitation de la loi américaine de 1818 sur la neutralité, laquelle ne faisait elle-même que reviser et rétablir la loi antérieure de 1794. C’est même précisément la question de l’équipement de corsaires sur *un territoire neutre, au profit d’une partie belligérante, qui donna la première impulsion a cette législation. En 1793 l’Angleterre, qui était à cette époque en guerre avee la France, se plaignit de ce qu’à New-York on équipât des corsaires francais pour nuire an commerce maritime anglais. Le President Washington sevit avec une grande energie contre cette violation de la neutralité et, malgré la sympathie de la population américaine pour les Français, malgré les démarches de l’ambassadeur français Genet, il fit saisir les corsaires. Il empêcha, de la même manière, la construction, en Géorgie, d’un corsaire destiné à entraver la navigation frangaise. Des deux côtes, il observa consciencieusement et raisoimablement les devoirs d’un état neutre, et détermina ensuite le congrès à règler ces devoirs par voie législative.¹

“Le ministre libéral Canning invoqua dans le parlement anglais, en 1823, cette honorable attitude de Washington pour défendre, de son côté, la loi anglaise sur la neutralité contre les attaques d’hommes politiqnes passionés on de particuliers égoistes.²

[176] “L’opinion du monde savant et du moude politique éclairé est presque unanime à reconnaître ces principes, que le peuple americain et son premier *Président out l’honneur d’avoir proclamés avant tons les autres, dans des textesde lois el airs et formels.”

Rolin Jaequemyns. Mr. Rolin Jaequemyns, in a notice of the able treaties of Mountague Bernard, published in the same review in 1871, says:

[177] “Dans ie cas spécial de l’Alabama, M. M. Bernard insiste sur le fait que ce vaisseau, en sortant du port de Liverpool, n’avait ni un canon, ni un mousquet. Il reçut clans la bale de Moëifra environ qtiarante homines d’équipage qui luifurent amenés de Liverpool, mais sans aucun matériel de guerre. C’est seulement à Terceira, une des îles Agores, par: consequent dans les eaux portugaises, qu’il fut rejoint par la barque Agrippine, de Londres, et un peu plus tard par le steamer Bahama, de Liverpool, qui lui amenèrent ses olficiers, son armement, les habits de l’équipage et un supplément de charbons.³ Un fait analogue s’est présenté pour les corsaires Shenandoah et Géorgia, qui, également con straits en Angleterre, en étaient également partis sans armes ni équipement. ‘Il est vrai,’ dit M. M. Bernard, (p. 382,) ‘que l’armement fourui à ces vaisseaux leur futexpedie de differents ports anglais, chaque fois évidemment *en vertu d’un concert préalable, mais c’est ce que le gouvernement anglais ne savait ni ne pouvait savoir,’ et plus loin il essaie d’établir la thèse qu’un gouvernement neutre n’est pas obligé, en droit international, d’empêcher la sortie de ses ports de bâtiments ayant l’apparence de vaisseaux de guerre mais désamés, alors même que l’on a des raisons de les croire construits pour le service d’un des belligerants. (V. p. 385 et pp. 390 et ss.)

[178] [179] “Il nous semble que l’adoption d’une pareille proposition équivaudrait à l’indication d’un moyen facile d’éluder la règie qui déclare incompatible avec la neutralité d’un pays l’organisation, sur son territoire, d’expéditions militaires an service d’un des belligérants. Il suffira, s’il s’agit d’une entreprise maritime, de faire partir en deux ou trois fois les éléments qui la constituent; d’abord le vaisseau, puis les homines, puis les armes, et si tons ces elements ne se rejoigneut que hors des eaux de la puissance neutre qui les a laissés partir, la neutralité sera intact. Nous, pensons que cette interprétation de la loi intern ation ale n’est niraisonnable, ni équitable. Sans doute il ne faut pas demander l’impossible, et puisque le droit international actuel n’empêehe pas les neutres cle permettre à leurs sujets l’exportation d’armes et de munitions de guerre à l’usage des belligérants, on ne peut exiger que l’on arrête les amies dans le cas dont il *s’agit. Mais cette tolérance n’est qu’une raison de plus pour se montrer scrupuleux à l’égard des vaisseax et des bommes. La considération que la fraude, même confinée dans ces iimites, sera encore prati-cable, que les homines pourront être nominaleinent engagés pour une destination paeifique, que la différence entre les vaisseaux cle guerre et ceux do commerce ne se repounait pas toujours à des caractères certains, pent servir, dans les cas particuliers, à excuser ou à justiner la conduite du gouvernement neutre qui se laisse tromper aux apparences. Mais dans l’espèce ces motifs de justification ou d’excuse n’exis-tent certainement pas. Bien que l’Alabama n’ait été armée ni dans la Mersey, ni dans la bale de Moëifra, il est certain que, dès le 24 juin (plus d’un mois avant son départ), M. Adams avait informé officiellement Lord Russell qu’un nouveau et puissant steamer était prêt à quitter Liverpool, dans le dessein manifesto de servir à la guerre maritime, et que les parties intéressées dans l’entreprise étaient des personnes bien connues à Liverpool comme agents et officiers des insurgés sndistes.¹ Il est certain que, le 21 jnillet, com me le collecteur et les autorités des douanes avaient prétendu ne pouvoir agir sur des renseignements vagues, le consul des États-Unis leur remit six affidavits, et que le 23 jnillet il leur en remit *deux autres; que trois de ces documents étaient les dépositions de inarms engagés à bord de l’Alabam a, et attestant com me chose notoire ‘que le vaisseau était un vaisseau de combat (a fighting vessel), construit et aménagé com me tel, avec de grandes quantités de poudre, de charbons, et de provisions; que les déposants avaient été enrôlés par des personnes bien connues comme agents des États-Confédérés; qu’ils n’avaient pas encore d’articles formels d’engagement, inais qu’il était généraiement su à bord que le vaisseau était un corsaire du gouvernement fédéral, destiné à combattre les États-Unis en vertu d’une commission de M. Jefferson Davis.² Un des marins ajoutait cette déclaration caractéristique, qu’il avait été déjà capturé comme coureur de blocus, et que son idée fixe était de retourner dans le sud ‘pour se venger sur les gens du nord de ce qu’ils lui avaient pris ses habits.’ On lui avait promis que cette occasion ne tarderait pas à se présenter.³

[180] “A ces affidavits était jointe une consultation émanée d’un des premiers avocats d’Angleterre, *M. Collier, lequel, sur le vu des pièces, émettait l’opinion qu’une violation du ‘Foreign Enlistment Act’ était établie, et que le collecteur des douanes avait le droit et le devoir d’arretêr le vaisseau.

“Six jours encore s’écoulerént avant le rapport des jurisconsultes officiels (law officers). Ce fut le 29 jnillet seulement qu’ils conclurent également à ce que le vaisseau fut arrêté. Mais le 28, le corsaire, averti qu’on allait l’empêcher de partir, se hatait de quitter, quatre jours plus tôt qu’il ne se l’était proposé le bassin où il se trouvait, et le 29 il prenait la mer.⁴ Cependant il ne quitta les eaux anglaises que le 31.

“M. Bernard ne croit pas que la sortie de l’Alabama, effeetuée dans ces circoustances, suffie pour justifier l’imputation de faute grave de coupable négligence à la charge du governement anglais. Il convient, toutefois, que ni un Anglais, ni un Américain n’a peut-être le droit d’avoir sur cette question une confiance implieite dans son propre juge-inent. Mais il ne voit pas ce qui l’empêcherait de dire que l’accusation lui parait légère et déraisonnable. Quant à nous, nous ne voyons pas comment il serait possible a quelqu’un qui n’est ni Anglais, ni Américain, de partager cette patriotique indulgence.”

[181] Ortolara. *Mr. Théodore Ortolan, of the French navy, from his practical experience, as well as from his theoretical knowledge and his high reputation as a publicist, is recognized as a writer of authority on these subjects. In a late edition of his Diplomatie de la mer ¹ he discusses the subject of neutral obligations with special reference to the differences between Great Britain and the United States. He says:

[182] “Si l’on suppose un navire construit sur le territoire neutre, non pas sur commande d’un belligérant, ou par suite d’un traité ostensible ou dissimulé avec ce belligérant, mais en vue d’un dessin quelconque, soit de navigation commerciale, soit tout autre, et que ce navire, déjà par lui-même propre à la guerre ou de nature à être converti à cet usage, une fois sorti des ports de la nation neutre, soit vendu, dans le cours de sa navigation, occasionnellement, a Pun des belligerants, et se mette a naviguer en destination directe pour ce belligérant, un tel navire dans de telles circonstances tombe uniquement sous le coup des règies relatives a la contrebande de guerre. Il est sujet à être arrêté et confisqué par l’ennemi qui pourra s’en emparer, mais sans qu’aucun grief de violation des devoirs de la neutralité puisse sortir de ce fait contre l’état neutre pour n’avoir pas defendu à ses *nationaux de telles ventes ou ne les avoir pas réprimées. C’est une opération de trafic qui a eu lieu, trafic de contrebande de guerre, dont aucune circonstance particulière n’est venue changer le caractère.

“Tel fut, en l’année 1800, le cas du navire américain le Brutus, capturé par les Anglais et jugé de bonne prise par la cour d’amirauté d’Halifax.

* * * * * * *

“Mais la situation change, la contrebande de guerre n’est plus la question principale, d’autres règles du droit des gens interviennent et modifient profondément la solution, si l’on suppose qu’il s’agisse dâbatiments de guerre construits, armés ou équipés sur un territorre neutre pour le compte d’un belligérant, par suite d’arraugement pris à l’avance avec lui, sous la forme d’un contract commercial quelconque: vente, commission, louage d’industrie ou de travail; que les arrangements aient été pris ostensiblement ou qu’ils le soient d’une mauière secrète ou déguisée; car la loyauté est une condition essentielle dans la solution des difhcultés internationales, et sous le convert de fausses apparances, il faut toujours aller an fond des choses. II y a ici, incontestablement, une secoude hypothèse qu’il importe de distinguer soigneusement de la précédente.

[183] “Nous nous rattacherons, pour résoudre en * droit des gens les difficultés que présente cette nouvelle situation, à un principe universellement établi, qui se formule en ce pen de mots: ‘Inviolabilité du territoire neutre.’ Cette inviolabilité est un droit pour l’état neutre, dont le territoire ne doit pas être atteint par les faits de guerre, mais elle impose aussi à ce meme état neutre une etroite obligation, celle de ne pas permettre, celle d’empêcher, aetivement au besoin, l’emploi de ce territoire par l’une des parties, ou au profit de l’une des parties belligérantes, dans un but hostile à l’autre partie.

“Les publicistes en crédit ne font aucun doute pour ce qui concerne l’armement et l’équipement dans un port neutre de bâtiments de guerre destinés à accroître les forces des belligérants. Ils s’aceordent pour reconnaître l’illégalité de ces armements ou équipements, comme une infraction de la part de l’état neutre qui les tolérerait aux devoirs de la neutralité.

“N’est-il pas évident qu’il en doit être de même a fortiori de la construction de pareils bâtiments, lorsque cette construction a lieu dans les conditions prévues en notre seconde hyothèse?”

[184] The attention of Italian jurists and publicists has also been attracted to the discussion. A learned and exhaustive pamphlet appeared at Florence in 1870 from the pen of Professor Pier *antoni. Without claiming the extreme rights which this learned gentleman concedes to them, the United States invite the attention of the Tribunal of Arbitration to the following expression of opinion:

Pierantoni. “Dopo che nella sez. XXII, il professor di Pavia sostiene che né il governo inglese ne gli altri governi debbano assumere la giuridica responsabilita delle depredazioni commesse dai corsari separatisti, nella seguente sez. XXIII, passa ad esaminare il secondo suo assunto: se la neutrality fu violata dalla Gran Bretagna per la costruzione dell’ Alabama, legno corsaro, e pel consentito armamento nei cantieri inglesi. Egli in brevi termini chiama FInghilterra responsabile dei soli danni cagionati dalle depredazioni del detto legno, scrivendo: ‘Di queste perdite soltanto deve rispondere il governo bri-tannico, per essere le medesime una conseguenza immediata di un fatto illegittimo, che ebbe luogo da sua parte, violando apertamente le leggi della neutralità.’

[185] “Io non posso acconsentire a questa mite conchiusione, anzi me ne discosto per considerazioni di fatto e di diritto. In linea di fatto, io non intendo come il chiarissimo autore escluda le altre specie di oifese, che-il Sumner ed il suo governo adducono di aver patite dalla nazione americana (sic.) Nella esposizione dell’ argomento ho citato *i tre capi, nei quali riassume il Sumner la serie delle oifese patite. Il caso del vascello costrutto a Liverpool è il più grave; ma gli Americani sostengono che avvennero altri simiglianti casi, e sino a prova contraria non è lecito circoscrivere il numero dei fatti addotti come offensivi.

“In diritto, io non so, chè in questa seconda parte lo scrittore non ricorre ad alcuna dimostrazione dottrinale, perche egli limiti le conse-gueoze della violata neutrality al semplice rifacimento de’ danni cagionati dal legno corsaro.

“I principii della neutralità soltanto accennati dimostrano più grave la responsabilità del governo che la violò.”¹

Lord Westbury. [186] Lastly, the United States cite, for the consideration of the Tribunal, the authority of Lord Westbury, Lord High Chancellor of England during the rebellion, who, on the 7th day of March, 1868, in a discussion in the House of Lords on these questions, said: “There was one rule of conduct which, undoubtedly civilized nations had agreed to observe, and it was that the territory of a neutral should not be the base of military operations by one of two belligerents against the other. In speaking of the base of operations, he must, to a certain degree, differ from the noble earl, [Earl Russell.] It was not a question whether armed ships *had actually left our shores; but it was a question whether ships with a view to tear had been built in our ports by one of two belligerents. They need not have been armed; but if they had been laid down mid built with a view to warlike operations by one of two billigerents, and this was hnotvingly permitted to be done by a neutral Power, it was unquestionably a breach of neutrality.” ¹

The public and official acts of other European Governments have also been in harmony with the principles which are claimed in this paper to have been violated by Great Britain.

Case of Swedish vessels. During the war between Spain and the Spanish-American Colonies, the Government of Sweden sold, in the ordinary course of commerce, to some private individuals, some vessels of war, after first dismantling them of their armament, and reducing them to a much less formidable condition than the Alabama was in when she left Liverpool. Some of the correspondence which took place between the Spanish Minister at Stockholm, the Russian Minister, and the Swedish Government may be found in De Marten’s Causes Célèbres, Vol. 5, page 229, et seq. A good résumé of the whole case may be found in De Cussy,² to which the United States invite the attention of the Tribunal of Arbitration in full, as follows:

[187] *“Dans l’année 1820, le roi de Suède prit la résolution de faire vendre, quand. L’occasion s’en présenterait, quelques bâtiments ‘de guerre dont la construction remontait à plus de vingt-cinq ans, ordon-nant d’ailleurs de les remplacer immédiatenient par des bâtiments nouveaux en appliquant aux frais de construction de ceux-ci le produit de la vente des premiers: le but et les intentions du roi, en cette circonstance, étaient de rend re, au sein de la paix, quel que activité aux chantiers de la marine royale, par la construction de cinq ou six vaisseaux de guerre.

“La Suède fit proposer à l’Espagne d’acheter ces bâtiments, tant par l’intermédiaire de M. de Moreno, envoyé de la cour de Madrid, à Stockholm, que par celui de M. de Lorichs, chargé d’affaires de Sa Majesté suédoise auprès du gouvernement de S. M. catholique. Le ministère fit également proposer, en même temps, a la cour d’Espagne de lui céder, à des prix modérés, de la poudre et des projectiles, et de mettre les chantiers de la marine royale de Suède à la disposition de S. M. catholique.

“La cour de Madrid déclina ces propositions diverses: l’Espagne possédait, répondit M. de Moreno, tons les éléments nécessaires pour la fabrication de la poudre, et un nombre suffisant de vaisseaux de guerre; l’argent seul manquait pour mettre en activité les moulins à poudre et pour ravitailler les bâtiments.

[188] *“Le ministre de la marine de S. M. suédoise avisa done aux moyens nécessaires pour trouver des acquéreurs. Six vaisseaux, fort bons encore, bien que leur construction remontât à 25 et 30 ans, furent déclarés réformés, et leur vente fut annoncée; c’étaient le vaisseau Försigtigheten (la Prévoyance) et les frégates, l’Eurydice, la Camille, la Manligheten, le Chapman, et la Tapperheten.

“Avant de procéder à la vente, qui eut lieu au commencement de l’année 1825, le ministre suédois fit renouveler la proposition d’achat des dits bâtiments au chargé d’affaires d’Espagne qui se trouvait encore, à cette époque, à Stockholm, ainsi qu’à son successeur M. d’Alvarado.

“Sur le refus de la légation espagnole d’entrer en négociation pour l acquisition des bâtiments désignés, le gouvernement suédois accepta les offrcs que lui lit la mar son de commerce, établie à Stockholm, Mi chaelson et Benedicks; celle-ci pen après céda les bâilments dont clle avait fait l’aequisition à la maison anglaise Barclay, Herring, Richardson et Cie, de Londres.

[189] “Or, cette derniere maison ayant, ainsi que la maison Goldsmith, de Londres, fourni les fonds de l’emprunt contracté, peu de temps avant, par le Mexique, l’Espagne crut reconnaitre, dans la circonstance de l’achat des bâtiments réfonnés fait par la maison Barclay, Herring, Richardson et *Cie, des mains de la maison de Stockholm, une intention de simulation ayant pour but d’éloigner la pensée que la gouvernement suédois était intbrmé (quand il accepta les offres de la maison Michael son et Benedicks, de Stockholm) de la destination qui serait prochainement donnée aux vaisseaux de guerre vendus par le ministre de la marine.

“Pour M. d’Alvarado, chargé d’affaires d’Espagne, il ne semblait pas douteux que les batiments achetés, dans le priucipe, par la maison Michaelson et Benedicks, pour passer, pen de temps après, entre les mains de la maison Barclay, Herring, Bichardson et Compagnie qui se trouvait en relations d’affaires d’argent avec la colonic récoltée, étaient destinés à renforcer les armements maritimes des insurgés de l’Amérique espagnole.

[190] “C’est dans cette conviction, fondée, disait-il, sur la notoriété publique à Stockholm, à Carlserona, à Gothenbourg, et à Londres, que M. d’Alvarado, dans la note qu’il addressa, le ler juillet 1825, à M. le comte de Wetterstedt, ministre des affaires étrangèresde Suède, et par laquelle il faisait appel à la loyauté de S. M. suédoise, dont la religion avait sans doute été surprise, conjura le gouvernement du roi de résilier les contrats de vente, et avant tout de retenir dans ses ports quatre des bâtiments vendus qui s’y trouvaient encore.

“Dans sa réponse an chargé d’affaires d’Es*pagne, le ministre suédois déclara que si le gouvernement de S. M. suédoise avait vendu, à des négociations, quelques vaisseaux de guerre, qu’on avait jugé apropos de réformer, en se réservant d’ailleurs la moitié de l’armement, il n’avait fait qu’exercer son droit que personnene pouvait lui contester. ‘Son action,’ continuait le ministre, ‘s’arrête la: et si M. d’Alvarado pent, ou croit pouvoir, prouver que les acquéreurs out l’intention de faire de ces bâtiments un usage qui pourrait devenir nuisible à l’Espagne, c’est auprès du gouvernement britannique que sa cour doit agir, lui seul pouvant exercer sur ses sujets la surveillance qui lui conviendra. Mais vouloir, sur de simples présomptions, arrêter une vente dans la crainte d’un danger a venir, qui pourrait en résulter, ce serait anéantir l’activité et le développement de toutes les transactions commerciales.’

“A la suite de diverses notes échangées entre le ministre suédois et M. d’Alvarado, qui obtint des envoyes des puissances amies et alliées de l’Espagne, résidant à Stockholm, d’appuyer ses réclamations, le gouvernement de S. M. le roi de Suède, voulant donner un témoignage de la bonne foi qui Pavait guidé dans toute cette affaire, consentit à résilier les contracts de vente qui avaient été passés, en dernier lieu, à l’occasion de la Prévoyance, de l’Eurydice, et de la Camille.

[191] *“Cette résiliation entraîn a, pour le gouvernement suedois, une perte d’argent assex considérable, que l’on a évaluée à plus de 60,000 francs.

“Les membres de l’opposition, dans la diète tenue en 1828, cherchèrent à établirque la gouvernement du roi avait violé la constitution, (éternel et banal argument de toutes les oppositions dans tons les pays!) non-seulement poor avoir vendu des bâtiments de la marine de l’état sans avoir obtenu préalablement l’assentiment des états, mais aussi pour avoir depuis permis la résiliation des marchés, et s’être soumis, de cette sorte, à une perte en argent d’un chiffre élevé. Une commission fut nommée pour examiner la conduite du gouvernement, laquelle, après leur examen, fut trouvée irrépréhensible.

[192] “Les états sollicitèrent, il est vrai, du roi, que S. M. voulût bien prendre les mesures nécessaires pour faire rentrer au trésor les sommes que le gouvernement avait cru devoir sacrifier, quand il se vit mieux éclairé sur les inconvénients résultant de la vente effecteée et lorsqu’il céda aux représentations diplomatiques dont cette vente était devenue l’objet; mais la mort du Comte de Cederström, chef de l’administration de la marine, contre lequel la demande paraissait dirigee, mit fin à cette affaire; ellene fut pas reprise, en *effet, dans le cours des séances de la diète suivante.

“Le gouvernement suédois en résiliant les contrats de vente, et en s’imposant un sacrifice d’argent en cette eirconstance, agit dignement et loyalement; aussi longtemps qu’il ne vit dans la vente des batiments de guerre réformés et d’une partie de leur armement, qu’une opération purement commerciale, dont les résultats devaient protiter uniquement, tant au commerce d’aueuu acquéreur, qu’au trésor de l’état, au moment aù de nouvelles constructions navales allaient être entreprises, le gouvernement suédois était parfaitement dans son droit; mais du jour où il put croire que les bâtiments achetés par la maison de Stockholm et revendus à la maison de Londres étaient destinés effectivement à renforcer les armements maritimes d’une colonic que l’Espagne considérait encore comme insurgée contre son autorité et dont l’indépendance politique n’a-vait encore été reconnue par aucun des grands états européens, la Suède, alliée ou amie de l’Espagne, ne pouvait se prêter, sans porter atteinte au principe de la neutralité, à ce que ses vaisseaux de guerre réformés concourussent à accroître les forces navales du Mexique.

[193] “Ce ne fut que le 26 décembre 1820 que la Grande-Bretagne signa, à Londres, un traité public avec les états mexicains; dans l’année 1827, *la France, les Pays-Bas, le Hanovre, le Danemark suivirent cet exemple, en signant, avec le gouverneinent mexicain, des traités de commerce et de navigation; le 28 décembre 1836, en fin, l’Espagne, comprenant l’inutilité de continner la lutte contre des colonies qui s’étaient séparées d’eile sans retour, conclut avec le Mexique un traité de paix et d’amitié.

“En agissant autrement qu’elle le fit, c’est-à-dire en persistant à repousser les réclamations du chargé d’affaires d’Espagne, la Suède, nous le répétons, aurait manqué aux devoirs et aux obligations de la neutralité. C’eût été se prêter à favoriser l’un des deux belligérants (et, dans le cas actuel en 1825, le belligérant favorisé était un peuple dont la condition politique était encore indéterminée), que de ne pas prendre les mesures nécessaires pour que les bâtiments de guerre réformés, vendus avec un demi-armement, n’aliassent pas accroître les forces navales d’une colonic de l’Espagne insurgée contre l’autorité du roi catholique.”

Offending vessels not simply contraband of war. [194] [195] It may possibly be asserted that the construction, or the fitting out, or the arming, or the equipment by neutrals of vessels of war intended for the service of a belligerent were, before the Treaty of Washington, to be regarded as standing upon the same footing with the dealings in articles *ordinarily esteemed contraband of war. Should this be the case, the United States might content themselves with a reference to the history of the legislation of the two countries, as a complete answer to such an asserttion. While the subjects or citizens of either country have been left by law free to manufacture or sell muskets or gunpowder, or to export them at their own risk, even if known to be for the use of a belligerent, the legislatures, the executives, and the judiciaries of both Great Britain; and the United States have joined the civilized world in saying that a vessel of war, intended for the use of a belligerent, is not an article in which the individual subject or citizen of a neutral State may deal, subject to the liability to capture as contraband by the other belligerent. Such a vessel has been and is regarded as organized war—more clearly organized war than was that unarmed expedition which left Plymouth in 1828 for Portugal,¹ and was arrested*by the British navy at the same Terceira to which the Alabama fled to receive the arms and ammunition that she failed to take on board at Liverpool, either because the purposes of the Foreign Office were surreptitiously revealed, or because the insurgent agents had reason to believe that they could evade the law by the construction of the vessel on one side of the river Mersey, the collection of the armament on the other side of it, and the putting them together more than three miles out at sea.

It is not, however, necessary for the United States to rely in this respect upon the action of the several branches of the Governments of the two countries. The question has been considered by several of the leading publicists of the Continent. Ortolan, in his “Diplomatic de la mer,² says, in addition to what has already been cited:

Opinion of Ortolan. [196] “A part toute prohibition faite législativement par telle ou telle nation, il faut, en droit international, considérer comme des actes décidément contraires à la neutralité, l’équipement, et l’armement et, à plus forte raison, la construction dans les ports neutres de bâtiments de guerre appartenant aux belligérants, ou destinés, par concert ostensible ou dissimulé avec les belligérants par à être rem is en leur pouvoir. Nous croyons fermement *qu’il est impossible d’assimiler de pareils actes a la eontrebande de guerre proprement dite et que Fobiigation pour un etat neutre de s’opposer à ce qu’ils aient lieu sur son territoire est indépendante de toute loi intérieure ou particuliére à cet état; que la loi intérieurepeutet doit sanctionner cette obligation mais qu’elle ne saurait ni la créer ni la détruire, parceque c’est une obligation qui résulte uniquement de la loi iuternationale, laquelle défend d’user, dans un but hostile, du territoire neutre.”

And of Heffer. Heffter,³ the distinguished German publicist, says to the same effect:

“C’est un devoir général pour les peuples restés spectateurs tranquilles de la lutte, de iry prendre aucune part active, ni de participer directement aux actes de la guerre. Les gouvernements, les sujets étrangers qui fournissent à l’un des belligérants des secours directs commettent une violation du devoir de la neutralité, un acte d’immixion dans les hostilités auquel l’adversaire est en droit de s’opposer par tons les moyens. Dans la pratique on regarde comme de tels actes d’hostilité:

“1°, le transport volontaire des soldats, matelots et autres hommes de guerre;

“2°, la construction dans les ports neutres de vaisseaux de guerre on de commerce pour le compte de Fennemi des leur sortie;

[197] *“3°, le transport volontaire de dépêches de l’un des belligérants.

“Ces diverses contraventions, lorsqu’elles sont régulièrement constatées, entraînent la saisie et la confiscation du navire employé au transport. La confiscation s’étend également à la cargaison, si il est établi que les propriétaries avaient connaissance du but illicite du voyage. Toutefois cette pénalité n’est pas toujours exécutée à leur égard avec la même sévérité. En réalité elle constitute un acte de légitime défense auquel le neutre qui se rend complice de l’un des belligérants ne saurait échapper du côté de l’adversaire.

“En dehors des cas qui viennent d’être énumérés., il existe encore un certain nombre d’objets dont le commerce est regardé, d’une manière plus ou moins générale dans la pratique des états, comme prohibé. Il constitute la contrabande de guerre proprement dite.”

Case of the Santisima Trinidad. [198] Without wearying the patience of the Tribunal in the further discussion of this question, it will be assumed that a vessel of war is not to be confounded with ordinary contraband of war. Indeed, the only respectable authority which has been cited even apparently to the contrary, is an observation which Mr. Justice Story thrust into the opinion of the Supreme Court of the United States, upon the case of the Santisima Trinidad.¹ *lf that eminent jurist had said that a vessel of war was to be regarded in public law as an article which might be legitimately constructed, fitted out, armed, equipped, or dealt in by a person in the territory of a neutral, with the intent that it should enter the service of a belligerent, subject only to a liability to capture as contraband of war by the other belligerent, the United States would have been forced, with great regret, to ask this tribunal to disregard an opinion so at variance with common sense, and with the whole current of the actions of nations. Happily they are under no necessity of casting an imputation on the memory of one of their brightest judicial ornaments.

[199] [200] During the last war between the United States and Great Britain a privateer, called the Monmouth, was constructed at Baltimore, and cruised against the enemy. After the peace she was stripped of her armament, and converted into a brig. She was subsequently loaded with munitions of war, armed with a portion of her original armament, and sent to Buenos Ayres, (which was then a revolted colony of Spain recognized as a belligerent, but not recognized as an independent government,) to find a market for her munitions of war. The supercargo was also authorized “to sell the vessel to the Government of Buenos Ayres if he could obtain a suitable price.” He did sell her, and she*went into the service of that Government as a man-of-war. She subsequently put into a port of the United States, and while there enlisted thirty new men, and took with her, when she put to sea, the newly enlisted men, and a tender, which carried some mounted guns and twenty-five men. After this addition to her effective power for injury, assisted by the tender, she captured the Spanish vessel Santisima Trimdad, and carried her cargo into Norfolk, one of the ports of the United States. On the instigation of the Spanish authorities, proceedings were taken for the restitution of this property, on the ground, first, that the Independencia had been originally illegally fitted out, armed, or equipped in the United States; secondly, that she had, after entering the service of Buenos Ayres, illegally recruited men and augmented her force within the United States. The court decreed a restitution of the property on the second groun d. Any rem arks, therefore, upon the first point were outside of the requirements of the case, and, under the American practice, would be regarded as without authority; but inasmuch as they were made by one of the most eminent writers on public law, they deserve the consideration which they have received. Taking them in connection with the facts as shown in evidence, it is clear that the distinguished judge intended to con*fine his statement to the case of a vessel of war equipped and dispatched as a commercial venture, without previous arrangement or understanding with the belligerent, and at the sole risk of the owner. “It is apparent,” he says, “that she was sent to Buenos Ayres on a commercial venture.” The whole of his subsequent remarks turned upon the absence of an intent, in Baltimore, in the mind of the owner, before she sailed, that she should, in any and at all events, whether sold or not, go into the service of the belligerent.

[201] Controlled toy the case of the GranPara [202] Effect of a commission of the offender as a vessel of war. The judges who were brought in contact with the witnesses in that case, and had access to all the original papers, and knew personally both the men and the facts, and who, therefore, had opportunities which are denied to us of judging of the merits of the case, seem to have reached the conclusion, that this particular transaction was a purely commercial venture; and they placed the decree of restitution of the captured property upon later violations of law. It may, however, be said that the ordinary experiences of human life show that such deeds border upon the debatable ground between good faith and fraud. The court which decided that case evidently did so on the impressions which the judges received from the particular evidence before them, for, on the very next *day, the most illustrious of American judges, John Marshall, then Chief Justice of the United States, in the parallel case of the Irresistible, a vessel built at Baltimore, sent to Buenos Ayres, and there commissioned as a privateer, pronouncing the opinion of the same court, declared that the facts as to the Irresistible showed a violation of the laws of the United States in the original construction, equipment, and arming of the vessel; and that, should the court decide otherwise, the laws for thei preset ration of the neutrality of the country would he completely eluded. ¹ In justice to the highest court of the United States, these two cases should be read together by all persons wishing to know its views upon the duties of a neutral nation in time of war, since if there be any difference in the principles involved in the two cases, then the true construction of the law is to be found in the carefully considered language of the court in the case of the Gran Para. The cases were both argued in February, 1822: the Gran Para upon the 20th, and the Santisima Trinidad on the 28th. The opinions were delivered in March: that of the Santisima Trinidad on the 12th; that of the Gran Para on the 13th. There can be no doubt that they were considered together in the consultation-room. Therefore any apparently broad or ill considered expressions in the opkiion rendered on the 12th of March are to be regarded as limited and corrected by the carefully considered exjjressions of the Chief Justice on the following day.

Having thus demonstrated that the principles for which the United States contend have been recognized by the statesmen, the jurists, the publicists, and the legislators of Great Britain; that they have the approbation of the most eminent authorities upon the continent of Europe; and that they have been regarded by the other Powers of Europe in their dealing with each other, it only remains to show how the liability of the neutral for the acts of cruisers illegally built, or equipped, or fitted out, or armed within its ports, may be terminated.

It has been intimated, in the course of the discussions upon these questions between the two Governments, that it may be said, on the part of Great Britain, that its power to interfere with, to arrest, or to detain either of the belligerent cruisers whose acts are complained of ceased when it was commissioned as a man-of-war; and that, consequently, its liability for their actions ceased.

[203] [204] The United States might well content themselves with calling the attention of the Tribunal of Arbitration to the utter uselessness discussing these questions, if the liability to make com*pensation for the wrong can be escaped in such a frivolous way. It is well known how the several British-built and British-manned cruisers got into the service of the insurgents. Few of them ever saw the line of the coast of the Southern insurgent States. The Florida, indeed, entered the harbor of Mobile, but she passed the blockading squadron as a British man-of-war. In most cases the commissions went out from England—from a branch office of the insurgent Navy Department, established and maintained in Liverpool at the cost and expense of the insurgent (so-called) Government. From this office the sailing orders of the vessels were issued; here their commanders received their instructions; and hence they departed to assume their commands and to begin the work of destruction. They played the comedy of completing on the high seas what had been carried to the verge of completion in England. The parallel is complete between these commissions and those issued by Genet in 1793, which were disregarded by the United States at the instance of Great Britain. If a piece of paper, emanating through an English office, from men who had no nationality recognized by Great Britain, and who had no open port into which a vessel could go unmolested, was potent not only to legalize the depredations of British built and manned cruisers *upon the commerce of the United States, but also to release the responsibility of Great Britain therefor, then this arbitration is indeed a farce. Such, however, cannot be the case.

Opinion of Sir Roundell Palmer. Sir Bounded Palmer, the Attorney General of Lord Palmerstoh’s Cabinet, as well as of the present Government, well said, in the House of Commons, in 1864, when defending the course of Great Britain as to the Tuscaloosa, a tender of the Alabama, “Can it be said that a neutral Sovereign has not the right to make orders for the preservation of his own neutrality, or that any foreign Power whatever violating these orders, provided it be done willfully or fraudulently, is protected to any extent by International Law, within the neutral territory, or has the right to complain, on the ground of International Law, of any means which the neutral Sovereign may see fit to adopt for the assertion of his territorial rights?” * * * It is a mere question of practical discretion, judgment, and moderation what is the proper way of vindicating the offended dignity of the neutral Sovereign.”¹

Opinion of Chief Justice Marshall. [205] The United States do not deny the force of the commission of a man-of-war issuing from a recognized Power. On the contrary, they point with a pardonable pride to the exhaustive language of *Chief Justice Marshall oh this subject² as evidence of what they understand to be the practice of nations. Nor do they deny that since Great Britain had, however precipitately and unjustly, recognized the existence of a civil war between the United States and the insurgents, and avowed a determination to remain neutral between the parties, she might, without a violation of the law of nations, commit the further injustice of allowing to such vessels of war of the insurgents as had not been built, armed, equipped, furnished, fitted out, supplied, or manned within her territory, in violation of her duty to the United States, the same rights of asylum, hospitality, and intercourse which she conceded to the vessels of war of the United States. They do, however, most confidently deny that the receipt of a commission by a vessel like the Alabama, or the Florida, or the Georgia, or the Shenandoah, exempted Great Britain from the liability growing out of the violation of her neutrality. To this point they are fortunately able to cite two from the many pertinent cases adjudicated in the Supreme Court of the United States, which show directly what the public law in this respect is understood to be, not only by the United States, but also by Spain and by Portugal.

[206] Decision of the Supreme Court of the United States in the cases of the Santisir ma Trinidad and the Gran Para. *The first is the case of the Santisima Trinidad,³ the facts of which have already been given. The property for which restitution was claimed in this case was Spanish. The libel was filed by the Spanish Consul at Norfolk on behalf of the owners. The capture was shown to have been made after a commission to the vessel, expressly recognized by the court rendering the decision. Nevertheless, restitution was decreed ou the ground of an illegal increase of armament in the neutral territory after the commission.

The second case is that of the Gran Para,⁴ also already alluded to. The libel was filed by the Consul General of Portugal. The opinion of the court was given by Chief Justice Marshall. The facts are set forth so clearly in the opinion that no other statement is necessary. The Chief Justice, in announcing the judgment of the court, said:

“The principle is now firmly settled that prizes made by vessels which have violated the acts of Congress that have been enacted for the preservation of the neutrality of the United States, if brought within their territory, shall be restored. The only question, therefore, is, Does this case come within the principle?

[207] “That the Irresistible was purchased, and that she sailed out of the port of Baltimore, armed *and manned as a vessel of war, for the purpose of being employed as a cruiser against a nation with whom the United States were at peace, is too clear for controversy. That the arms and ammunition were cleared out as cargo cannot vary the case. Nor is it thought to be material that the men were enlisted in form as for a common mercantile voyage. There is nothing resembling a commercial adventure in any part of the transaction. The vessel was constructed for war and not for commerce. There was no cargo on board but what was adapted to the purposes of war. The crew was too numerous for a merchantman, and was sufficient for a privateer. These circumstances demonstrate the intent with which the Irresistible sailed out of the port of Baltimore. But she was not commissioned as a privateer, nor did she attempt to act as one until she reached the river La Plata, when a commission was obtained, and the crew re-enlisted. This court has never decided that the offense adheres to the vessel, whatever changes may have taken place, and cannot be deposited at the termination of the cruise in preparing for which it was committed; and as the Irresistible made no prize on her passage from Baltimore to the river of La Plata, it is contended that her offense was deposited there, and that the court cannot connect her subsequent cruise with the transactions at Baltimore.

[208] [209] *“If this were to be admitted in such a case as this, the laws for the preservation of our neutrality would be completely eluded, so far as this enforcement depends on the restitution of prizes made in violation of them. Vessels completely lit ted in our ports for military operations need only sail to a belligerent port, and there, after obtaining a commission, go through the ceremony of discharging and re-enlisting their crew, to become perfectly legitimate cruisers, purified from every taint contracted at the place where all their real force and capacity for annoyance was acquired. This would, indeed, be a fraudulent neutrality, disgraceful to our own Government, and of which no nation would be the dupe. It is impossible for a moment to disguise the facts that the arms and ammunition taken on board the Irresistible at Baltimore were taken for the purpose of being used on a cruise, and that the men there enlisted, though engaged in form as for a commercial voyage, were not so engaged in fact. There was no commercial voyage, and no individual of the crew could believe there was one. Although there might be no express stipulation to serve on board the Irresistible after her reaching the La Plata and obtaining a commission, it must be completely understood that such was to be the fact. For what other purpose could they have undertaken *this voyage? Everything they saw, everything that was done, spoke a language too plain to be misunderstood.

* * * * * * *

“It is, therefore, very clear that the Irresistible was armed and manned in Baltimore, in violation of the laws and of theneutral obligations of the United States. We do not think that any circumstances took place in the river La Plata, by force of which this taint was removed.”

The principle recognized by France, Great Britain, Spain, Portugal, and the United States. The course of the French Government during the insurrection in the case of the Rappahannock, already referred to, practically asserted the power of the neutral to protect its violated sovereignty, even against a commissioned vessel of war. The British Government itself recognized this principle when it ordered the Alabama to be seized at Nassau, and when it found fault with the Governor of the Cape of Good Hope for not detaining the Tuscaloosa at Cape Town. The principle for which the United States contend has therefore been recognized by Great Britain, Spain, Portugal, France, and the United States.

Deposit of the offense. [210] It is not deemed necessary to add to the forcible views of Chief Justice Marshall in the case of the Gran Para, as to the deposit of the offense of the cruiser. The United States only ask that the same just rules which they, through their highest judicial officer and most eminent jurist, have established for offenses committed on their own soil, may be applied to the offenses against British neutrality from which they have suffered. The Alabama, the Georgia, the Florida, the Shenandoah, and the other insurgent vessels of war made no cruise that was not planned on British soil. Their respective cruises were to last till the independence of the Confederacy should be established. The career of the Florida terminated at Bahia—that of the Alabama off Cherbourg. The Shenandoah and the Georgia came eventually into the possession of the United States. The principal injuries, which will be hereinafter set forth, came from the acts of these vessels. There were, however, other vessels, whose careers and crimes, as well as those of the above-named four, will now be given in detail.

Before proceeding to do so, it will be well to note the points which have been thus far made.

Resume of principles. The United States trust that they have established to the satisfaction of the Tribunal of Arbitration as against Great Britain—

1. That it is the duty of a neutral to preserve strict and impartial neutrality as to both belligerents during hostilities. (See the Queen’s Proclamation; also extracts from various writers on International Law above cited.)

*2. [211] That this obligation is independent of municipal law. (See as above.)

3. That a neutral is bound to enforce its municipal laws and its executive proclamation; and that a belligerent has the right to ask it to do so; and also the right to ask to have the powers conferred upon the neutral by law increased if found insufficient. (See the precedents in General Washington’s administration; Lord Palmerston’s speech of July 23, 1863; the opinion of the British Attorney General during the Crimean war; and the United States Special Law of March 10, 1838.)

4. That a neutral is bound 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 Bower with which it is at peace. (See 1st Pule of the Treaty; also the Foreign Enlistment Acts of 1819 and 1870; also the precedents in General Washington’s administration; also the writers on International Laic who have been cited.)

5. That a neutral is bound to use like diligence to prevent the construction of such a vessel. (See Foreign Enlistment Act of 1870; also the action of the United States Government in 1869; also the writers on International Law above cited.)

*6. [212] That a neutral is bound to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war against any Bower with which it is at peace; such vessel having been specially adapted, in whole or in part, within its jurisdiction, to warlike use. (See 1st Pule of the Treaty; also the Foreign Enlistment Act of 1870.)

7. That a neutral may not permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other. (See 2d Rule of the Treaty, the Foreign Enlistment Act of 1870, and the writers on International Law above cited; also the instructions to the British naval forces during the Southern insurrection.)

8. That a neutral is bound to use due diligence in its ports or waters, to prevent either belligerent from obtaining there a renewal or augmentation of military supplies, or arms for belligerent vessels, or the recruitment of men. (See 2d Pule of the Treaty; also the precedents of General Washington’s administration; also the Foreign Enlistment Acts of 1819 and 1870; also the Queen’s Proclamation.)

9. [213] That when a neutral fails to use all the means in its power to prevent a breach of the neutrality of its soil or waters, in, any of the foregoing respects, the neutral should make compensation for *the injury resulting therefrom. (See precedents of General Washington’s administration between Great Britain and the United Stales; treaty of 1794 between Great Britain and the United States; treaty of 1819 between the United States and Spain; correspondence between Portugal and the United States, 1817–’22, and Articles VII and X of the Treaty of Washington.)

10. That this obligation is not discharged or arrested by the change of the offending vessel into a public man-of-war. (See the cases of the Santisima Trinidad and the Gran Para, above cited.)

11. That this obligation is not discharged by a fraudulent attempt of the offending vessel to evade the provisions of a local municipal law. (See the Gran Para, as above; also Blunt schli and other writers on International Law.)

12. [214] That the offense will not be deposited so as to release the liability of the neutral even by the entry of the offending vessel in a port of the belligerent, and there becoming a man-of-war, if any part of the original fraud continues to hang about the vessel. (See the Gran Para, as above.)

1. Ortolan, Diplomatie de la mer, vol. 2, page 215.
2. Vol. IV, page 79.
3. Vol. IV, page 93, Appendix No. 3, by Mr. Abbott, now Lord Tenterden.
4. Vol. IV, page 124.
1. Vol. IV, pages 123, 124.
2. Vol. III, page 549.
3. Vol. III, page 550.
4. Vol. V, page 695.
5. Earl Granville to Count Bernstorff, September 15, 1870.
1. Vol. IV, page 86.

2. It may interest the members of the Tribunal of Arbitration to see in this connection an abstract of the acts which are made penal by the United States Neutrality Law of 1818. The law itself will be found in Vol. IV, pages 90–92. The abstract is taken from President Grant’s Proclamation of Neutrality in the late Franco-German war, dated October 8, 1870.

   “By the act passed on the 20th day of April, A. D. 1818, commonly known as the ‘Neutrality Law’ the following acts are forbidden to be done, under severe penalties, within the territory and jurisdiction of the United States, to wit:

   • “1. Accepting and exercising a commission to serve either of the said belligerents by land or by sea against the other belligerent.
   • “2. Enlisting or entering into the service of either of the said belligerents as a soldier, or as a marine or seaman on board of any vessel of war, letter of marque, or privateer.
   • “3. Hiring or retaining another person to enlist or enter himself in the service of either of the said belligerents as a soldier, or as a marine or seaman on board of any vessel of war, letter of marque, or privateer.
   • “4. Hiring another person to go beyond the limits or jurisdiction of the United States with intent to be enlisted as aforesaid.
   • “5. Hiring another person to go beyond the limits of the United States with the intent to be entered into service as aforesaid.
   • “6. Retaining another person to go beyond the limits of the United States with intent to be enlisted as aforesaid.
   • “7. Retaining another person to go beyond the limits of the United States with intent to be entered into service as aforesaid. (But the said act is not to be construed to extend to a citizen or subject of either belligerent who, being transiently within the United States, shall, on board of any vessel of war, which, at the time of its arrival within the United States, was fitted and equipped as such vessel of war, enlist, or enter himself, or hire, or retain another subject or citizen of the same belligerent, who is transiently within the United States, to enlist, or enter himself to serve such belligerent on board such vessel of war, if the United States shall then be at peace with such belligerent.)
   • “8. Fitting out and arming, or attempting to fit out and arm, or procuring to be fitted out and armed, or knowingly being concerned in the furnishing, fitting out, or arming of any ship or vessel, with intent that such ship or vessel shall be employed in the service of either of the said belligerents.
   • “9. Issuing or delivering a commission within the territory or jurisdiction of the United States for any ship or vessel to the intent that she may be employed as aforesaid.
   • “10. Increasing or augmenting, or procuring to be increased or augmented, or knowingly being concerned in increasing or augmenting, the force of any ship of war, cruiser, or other armed vessel, which at the time of her arrival within the United States was a ship of war, cruiser, or armed vessel in the service of either of the said belligerents, or belonging to the subjects or citizens of either, by adding to the number of guns of such vessels, or by changing those on board of her for guns of a larger caliber, or by the addition thereto of any equipment solely applicable to war.
   • “11. Beginning or setting on foot or providing or preparing the means for any military expedition or enterprise to be carried on from the territory or jurisdiction of the United States against the territories or dominions of either of the said belligerents.”

   The Tribunal of Arbitration will also observe that the most important part of the American act is omitted in the British act, namely, the power conferred by the eighth section on the Executive to take possession of and detain a ship without judicial process, and to use the military and naval forces of the Government for that purpose, if necessary. Earl Russell is understood to have determined that the United States should, in no event, have the benefit of such a summary proceeding, or of any remedy that would take away the trial by jury.—Speechcs and Dispatches of Earl Russell, Vol. II, page 266.

1. Vol. IV, page 79.
2. Vol. IV, page 80.
3. Vol. IV, pages 80, 81.
4. Vol. IV, page 81.
5. Vol. IV, page 82.
6. Vol. IV, page 82.
1. Vol. VII, page 1.
2. London Times, January 18, 1871. See also Admiralty and Ecclesiastical Reports, Vol. 3, page 332. See also Report of the Debate on the Foreign Enlistment Act in the House of Commons, in the London Times of August 2, 1870.
3. See Phillimore’s International Law, vol. 2, ch. 8, section 194.
1. See further 1 Black. Com., pp. 43, 354; 1 Woodson’s Lectures, p. 31.
2. Novillo vs. Toogood, 1 Barn well and Creswell’s Reports, 582.
3. Blackstone’s Com., vol, 4, ch. 5. See also Lord Lynclhurst’s opinion, ante, page 61.
4. The Louis, Dodson’s Admiralty Reports, vol. 2, p. 210.
5. Heathfield vs. Chilton, 4 Burrows, p. 2018. This observation of Lord Mansfield is ited and adopted by Phillimore, vol. 3, p. 541.
1. Vol. IV, pages 94–102.
2. 3 Phillimore Ch. IX.
3. Opinion irnpartiale sur la question de l’Alabama. Berlin, 1870, page 22.
4. Nécessité d’une loi maritime pour régler les rapports des neutres est des belligérants. Paris, 1862, page 7.
5. The Eliza Ann> (1 Dodson’s Reports, 244.)
6. Calvo Derecho Internaeional tom. 2, page 151, § 603.
1. Vol. IV, page 175, et seq.
2. Vol. IV, page 93, ct seq.
1. Vol. IV, page 94.
2. Vol. IV, page 95.
3. Vol. IV, page 97.
4. Dana’s Wheaton, section 439, note 215, page 536. This note, which contains an exhaustive review of the American policy, may be found in Vol. VII, page 11.
1. Vol. IV, page 100. The United States also refer to Mr. Jefferson’s letter to Mr. Hammond, of November 14, 1793.
2. Vol. IV, page 97.
3. Vol. IV, page 101.
4. Treaty concluded between the United States and Great Britain, at London, November 19, 1794, commonly known as “Jay’s Treaty.” See United States Statutes at Large, Vol. VIII, page 116.
1. 2d Vol. Mms. Opinions, Department of State.
2. Mr. Jefferson to M. Genet, June 5, 1793. Jefferson’s Works, Vol. III, page 572.
3. Mr. Canning’s speech, cited ante, page 107.
4. Vol. IV, pages 53–62.
1. Vol. III, pages 556–560.
2. Executive Document No. 53, 32d Congress, 1st session.
3. Vol. III, page 525.
4. Vol. III, page 548.
5. Vol. III, page 584.
6. Vol. III, page 621.
1. Vol. III, page 566.
1. Vinnius, Comment, ad Inst., lib. 3, tit. 15.

2. Ayliffe, in his Pandects, (B. 2, tit. 13, pp. 108, 109, 110,) has given an elaborate view of the different sorts of fault or negligence, and fraud and deceit. The passage is long, but as it contains a very ample view of the opinions of the Civilians it may be useful to place a part of it in a note:

   “The word fault, in Latin called culpa, is a general term; and according to the definition of it, it denotes an offense or injury done unto another by imprudence, which might otherwise be avoided by human care. For a fault, says Donatus, has a respect unto him who hurts another not knowingly nor willingly. Here we use the word offense or injury by way of a genus, which comprehends deceit, malice, and all other misdemeanors, as well as a fault; for deceit and malice are plainly intended for the injury of another, but a fault is not so designed. And therefore we have added the word imprudence in this definition, to point out and distinguish a fault from deceit, malice, and an evil purpose of mind, which accompanies all trespasses and misdemeanors. A fault arises from simplicity, a dullness of mind, and a barrenness of thought, which is always attended with imprudence; but deceit, called dolus, has its rise from a malicious purpose of mind, which acts in contempt of all honesty and prudence, with a full intent of doing mischief, or an injury. And by these last words in the definition, namely, which might otherwise be avoided by human care, we distinguish a fault from a fortuitous case. For a fault is blamable through want of taking proper care; and it throws an obligation upon the person that does the injury, because by an application of due diligence it might have been foreseen and prevented. But fortuitous cases often cannot be foreseen, or (at least) prevented by the providence of man; as death, fires, great floods, shipwrecks, tumults, piracies, &c. Those things are superior to the prudence of any man, and rather happen by fate, therefore are not blamable. But if fraud or some previous fault be the occasion of these documents, they are not then deemed to be fortuitous cases. A fault is a deviation from that which is good; and, according to Bartolus, erring from the ordinance and disposition of a law. It is sometimes difficult to judge what is the difference betwixt a fault and a dolus, since these words very often stand for one and the same thing. There is no one in this life lives without a fault; but he that would speak distinctly and properly, must impute a dolus to some wickedness or knavery, and a fault to imprudence. The first consists chiefly in acting, and the other in not acting or doing something which a man ought to do. According to Bartolus, a fault is divided into five species, viz, culpa latissima, latior, lata, levis, and levissima. The first he makes to be equal to manifest deceit, and the second to be equivalent unto presumptive malice or deceit. The first and second of these distinctions (he says) approach unto fraud, and are sometimes called by the name of fraud. But a lata culpa, which is occasioned by gross sloth, rashness, improvidence, and want of advice, is never compared unto deceit or malice. For he that understands not that which all other men know and understand may be styled (says Bortolus) a supine and unthinking man, but not a malicious and deceitful person. But, I think, none of those distinctions of his have any foundation in law; for such things as admit of any degree of comparison, in respect of being more or less so, do not admit of any specific difference; as majus et minus diversas species non constituunt. For that which the law says de latiore culpâ sometimes is to be understood de lata culpâ, after the manner that a word of the comparative degree is sometimes put for a word of the positive, as in Virgil: Tristior et lacrymis oculos suffusa nitentes. Wherefore I shall here distinguish a fault into two species only, to wit, into lata and levis, though others mention a culpa levissima too. The first denotes a negligence extremely blamable; that is to say, such a negligence as is not tempered with any kind of diligence. The other imports such a kind of negligence, whereby a person does not employ that care in men’s affairs which other men are wont to do, though he be not more diligent in his own business. But as often as the word culpa is simply used in the law, it is taken for that which we style culpa levis, a light fault, because words are ever understood in the more favorable sense. A culpa levissima, or simple negligence, is that which proceeds from, an unaffected ignorance and unskillfulness, (say they,) and it is like unto such a fault, which we easily excuse, either on the account of age, sex, rusticity, &c, Or, to set the matter in a clearer light, a lata culpa is a diligence in a man’s own affairs, and a negligence in the concerns of other men. And a levis culpa is, when a man employs the same care or diligence in other men’s affairs as he does in his own, but yet does not use all care and fidelity which more diligent and circumspect men are wont to make use of; and this may be called an accustomed negligence as well in a man’s own affairs as in the business of other men. A lata culpa, I mean a great fault, is equivalent or next unto deceit or malice. And it may be said to be next unto deceit or malice two ways, namely, either because it contains in it a-presumptive deceit, as when a man does not use the same diligence in another’s concerns as in his own; or else because the fraud is so gross and inexcusable, that, though fraud be not presumed, yet it differs but little from it. As when a person becomes negligent in favor of a friend; for though favor, or too great a facility of temper, excuses a man from malicious or knavish purposes, yet it is next of kin thereunto. And it is a rule laid down in law, that when the law commands any act of deceit to be made good, it is also always understood of a lata culpa, or a gross fault. Wherefore, since a great fault is equivalent or next unto deceit, it follows, that in every disposition of law where it is said that an evil intent or dolus ought only to be repaired, it is to be understood also of a lata culpa; which is true, I think, unless it be in the Cornelian law de Sicariis. For he who commits the crime of murder ex latâ culpâ, shall be punished according to the severity of that law, but in a more gentle manner; and thus herein a lata culpa is distinguished from malice, or an evil design, called dolus malm; for a murderer is liable on the score of his wicked purpose, and not on the account of gross negligence. Some say, that generally speaking, whenever the law or an action is touching a pecuniary penalty, and the law expressly mentions a dolus, a lata culpa is insufficient, and is excluded.”

   Numerous authorities to the same effect might be cited; but it will suffice at this stage to refer to such as are most familiar to jurists in Great Britain and the United States.

   Wood’s Institutes, p. 106.

   Hallifax’s Civil Law, p. 78.

   Bell’s Commentaries, §232 et seq.

   Browne’s Civil and Admiralty Law, vol. 1, p. 354.

   Erskine’s Institutes, bk. 3, tit. 1.

   Bowyer’s Civil Law, p. 174.

   Mackenzie’s Roman Law, p. 186.

   Domat’s Civil Law by Strahan, vol. 1, p. 317.

   Heineccius, Element a Juris Civilis, lib. 3, tit. 14, Opera, torn. V.

1. Story on Bailments, § 14.
1. Story on Bailments, § 14.
2. Steamboat New World vs. King, 17 Howard Reports, page 475. See also the authorities there cited.
3. Hay on Liabilities, ch. 8.
4. London Times, June 13, 1871.
5. A speech delivered in the House of Commons, on Friday, August 4, 1871, by Sir Roundell Palmer, M. P. for Richmond. London and New York, Macmillan & Co., 1871, page 28.
1. United States vs. Quincy, 6 Peters’s Reports, 445.
2. Vol. V, pages 3–470.
1. This opinion was on the Act of 1819. The Act of 1870 provides that “equipping shall include the furnishing a ship with any tackle, apparel, furniture, provisions, arms, munitions, or stores, or any other thing which is used in or about a ship for the purpose of fitting or adapting her for the sea or for naval service.”
2. “It is perfectly true that Lord Chief Baron Pollock and Baron Bramwell, as well as other great legal authorities, thought that such words as these did not convey the true meaning of our then Foreign Enlistment Act; which, in their opinion, was intended to apply only to those vessels which might be armed within our jurisdiction, either completely or at least so far as to leave our waters in a condition immediately to commence hostilities.”—Sir R. Palmer’s Speech, August 4, 1871, page 32.
3. Vol. V, page 590.
1. Vol. III, page 538.
2. Hautefeuille. Des droits et des devoirs des nations neutres, (Paris, 1849,) tome 2me, pages 79–80.
1. (Note by M. Bluntschli.)—Bemis, American Neutrality, Boston, 1886, p. 17 et seq.
2. (Note by M. Bluntschli.)—” Phillimore, Intern. Law. III, 217.
3. (Note by Mr. Bolin-Jaequemyns.)—“Ce point n’etait pas nettenicnt indiqué” dans la; version donneé par M. Sumner, V. t. I, p. 452, de la Revue, ainsi que l’article de M. Bluntschli. V. aussi les publications citées plus haut de MM. Esperson et Pieiiantoni.
1. “M. Bernard, p. 339.
2. (Note by Mr. Rolin-Jacquemyns.)—“‘It is well known by the hands on board that the vessel is a privateer for the confederate government to act against the United States under a commission from Mr. Jefferson Davis. Affid. No. 1, Bernard, p. 363.
3. (Note by Mr. Rolin-Jacquemyns.)—“Affid. No. 8, p. 369. ‘I wanted to get South in order to have retaliation of the Northerners for robbing me of my clothes. He [l’agent des états du sud] said that if I went with him in his vessel I should very shortly have that opportunity.’
4. (Note by Air. Rolin-Jacquemyns.)—“Affidavit de Clarence Yonge, cité par M. Bernard, p. 345, en note.
1. Diplomatie de la mer, tome 2, page 208.
1. La Questione Anglo-Americana dell’ Alahama, per l’Avv. A. Pierantoni, Fireuze 1870, pages 46–7.
1. Hansard, 3d series, Vol. CXCI, pages 346, 347.
2. De Cussy, Droit Maritime, tome 2, page 402.
1. During the contest in Portugal between Don Miguel and Donna Maria II, an unarmed expedition of the adherents of Donna Maria leffc Portsmouth, ostensibly for Brazit, hut really for the Azores. The British Government of that day pursued it to Terceira, tired into it and hroke it up; and they were sustained in the House of Lords by a vote of 126 to 31, and in the House of Commons by a vote of 191 to 78. (Hansard for 1830 Vol. XXIII. See also Annual Register for 1829, and Philliroore’s International Law, Vol. I, page 229, et seq.) The Tribunal of Arbitration will not fail to observe how differently the powers and duties of the Government were construed by the British Government when it was a question of the disintegration and disruption of the commerce of the United States.
2. Diplomatiede la mer, Ortolan, tome 2, page 214.
3. Heffter, Droit international. (French translation by Jules Bergson, Paris,) page 296.
1. 7 Wheaton’s Reports, page 283.
1. The Gran Para, 7 WkeatonV Reports, 471.
1. Hansard, 3d series, vol. 174, page 1595.
2. The Schooner Exchange against McFadden et al, 7 Cranch’s Eeports, 116.
3. 7 Wheaton, 283.
4. 7 Wheaton, 471.