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 III

III.—Argument of Sir Roundell Palmer on the questions of “due deligence,” the “effect of commissions upon the insurgent cruisers,” and the supplies of coal to such cruisers in British ports.

[Filed July 29.—See Protocol xv.]

Chapter I.—On the question of “due diligence” generally considered.

When the inquiry is, whether default has been made in the fulfill, ment of a particular obligation, either by a state or by an individual, it is first necessary to have an accurate view of the ground, nature, and extent of the obligation itself.1. On the sources of the obligation.

The examination of this question will be simplified by considering-in the first instance, such a case as that of the Alabama, at the time of her departure from Great Britain, namely, a vessel built and made ready for sea, with special adaptation for warlike use, by British shipbuilders in the course of their trade, within British territory, to the order of an agent of the Confederate States, but not armed, nor capable of offense or defense at the time of her departure.

Any obligation which Great Britain may have been under toward the United States, in respect of such a vessel, could only be founded, at the time when the transaction took place, (1) upon some known rule or principle of international law; or (2) upon some express or implied engagement on the part of Great Britain.

The three rules contained in the VIth Article of the treaty of Washington become elements in this inquiry solely by virtue of the declaration made in that article, that—

Her Majesty’s government cannot assent to the foregoing rules as a statement of principles of international law which were in force at the time when the claims mentioned in Article I arose; but that Her Majesty’s government * * * agree that, in deciding the questions between the two countries arising out of those claims, the arbitrators should assume that Her Majesty’s government had undertaken to act upon the principles set forth in those rules.

In order rightly to understand the effect of the agreement embodied in this declaration, it is important to see how the question between the two governments would have stood without it.

I.—As to the rules and principles of international law.

These must be obtained from the authorities which show what had previously been received and understood among nations as to the obligations of neutral states toward belligerents; remembering always, that what is called international law (in the absence of particular compacts between states) is imposed only by the moral power of the general opinion and practice of civilized nations; that, (in the words of Lord Stowell, quoted with approval by the great American jurist, Wheaton, “Histoire des Progrès du Droit des Gens,” vol. i, p. 134,) “une grande partie du droit des gens est basée sur l’usage et les pratiques des nations. Nul doute qu’il a été introduit par des principes généraux, (du droit naturel;) mais il ne marche avec ces principes que jusqu’à un certain point; et s’il s’arrête à ce point nous ne pouvons pas prétendre aller plus loin, et dire que la seule théorie générale pourra nous soutenir dans un progrès ultérieur.”2. Source I. Rules and principles of international law.

In a case in which no active interference in war is imputed to a neutral state, international law knows nothing of any obligation of that state toward a belligerent, as such, except to preserve its neutrality. To constitute a merely passive breach of neutrality on the part of such a state, some act must have been done by, or in aid of, a belligerent, for the purposes of the war, which, unless done by the permission of the neutral state, would be a violation of its territory, or of its sovereignty or independence within that territory, and such act must have been expressly or tacitly permitted on the part of the neutral government. For acts done beyond the neutral jurisdiction by subjects of the neutral power, to the injury of a belligerent, the law of nations has appropriate remedies; but those acts, involving no violation or hostile use of neutral territory, are not imputed as breaches of neutrality to the neutral state. And for a violation or hostile use of neutral territory without the permission or intentional acquiescence of the neutral state, reparation may be due from the offending belligerent to the injured neutral, but the neutral so injured has been guilty of no breach of any neutral obligation toward the other belligerent, whether he does, or does not, subsequently obtain reparation from the offender.

Between the commercial dealings of neutral citizens, in whatever kinds of merchandise, (and whether with the citizens or with the governments of belligerent states,) and the levying or augmentation of military or naval forces, or the fitting out and dispatch of military or naval expeditions by a belligerent within neutral territory, international law has always drawn a clear distinction. The former kind of dealings, if they are permitted by the local law of the neutral state, involve on the part of that state no breach of neutrality; if they are prohibited, a disregard of the prohibition is not a violation or hostile use of the neutral territory, but is an illegal act, the measure of which, and the remedies for which, must be sought for in the municipal and not in international law. The other class of acts cannot be done against the will of the neutral sovereign without a violation of his territory, or of his sovereignty and independence within that territory; and to permit this, for the purposes of the war, would be a breach of neutrality.

The continuance during the war, within the neutral territory, of trade by neutral citizens with both or either belligerent, in the produce or manufactures of the neutral state, whether of those kinds which (when carried by sea to a belligerent) are denominated contraband of war, or of any other description, has always been permitted by international law, and no authority, anterior to the departure of the Alabama from Great Britain, can be cited for the proposition that unarmed ships of war, constructed and sold by neutral ship-builders in the course of their trade, were, in the view of international law, less lawful subjects of neutral commerce with a belligerent than any other munitions or instruments of war.

The authorities on this subject are quoted at large in Annex (A) to the British Counter Case. Galiani, one of these authorities, argued that the sale in a neutral port, to a belligerent, of a ship not only built but armed for war, ought to be deemed prohibited; but Lampredi, Azuni, and Wheaton rejected that opinion, and held that (the transaction being a commercial one on the part of the neutral seller) the addition even of an armament would make no difference. Story took the same view of the dispatch by a neutral citizen of a ship of war fully armed from the neutral territory to a belligerent port, with a view to her sale there to a belligerent power.¹ Mr. Adams himself, in his official correspondence with Earl Russell, (April 6, 1863,²) admitted the soundness of these doctrines, assuming the transaction of sale and transfer by the neutral to be “purely commercial;” and also assuming the belligerent country, to which such vessels of war might be sold and transferred, to be “not subject to blockade.” It cannot, however, be seriously imagined that the existence of a blockade of the ports of the belligerent purchaser would make such a transaction, if it would otherwise be lawful, a violation of the neutrality of a neutral state, in the view of international law.

It may be true that, when an armed ship of war is sold to a belligerent within neutral territory and goes to sea from thence fully capable of offense and defense under the control of the belligerent purchaser, there would often, (perhaps generally,) exist grounds for contending that the transaction was not substantially distinguishable from the dispatch of a naval expedition by the belligerent from the neutral territory; and this was doubtless a cogent reason for the special legislation of the United States and of Great Britain, which, (whatever further scope it may have had,) was undoubtedly intended to prevent such expeditions, by striking at the armament of ships of war within neutral territory, for the service of a belligerent. But the case of a ship leaving the neutral country unarmed is, in this respect, wholly different. Her departure is no operation of war; she is guilty of no violation of neutral territory; she is not capable, as yet, of any hostile act. The words of Mr. Huskisson in the debate on the Terceira expedition in the British Parliament, (Huskissoff’s Speeches, vol iii, p. 559,) and of Mr. Canning, as there quoted by him, are strictly applicable to such a case, and deserve reference as showing the view of this subject taken long ago by those eminent British statesmen. Speaking of certain complaints made by Turkey during the Greek revolutionary war, he said:

To these complaints we constantly replied: “We will preserve our neutrality within our dominions, but we will go no further. Turkey did not understand our explanation, and thought we might summarily dispose of Lord Cochrane, and those other subjects of Her Majesty who were assisting the Greeks.” To its remonstrance Mr. Canning replied: “Arms may leave this country as matter of merchandise; and however strong the general inconvenience, the law does not interfere to stop them. It is only when the elements of armaments are combined that they come within the purview of the law; and, if that combination does not take place until they have left this country, we have no right to interfere with them.” Those were the words of Mr. Canning, who extended the doctrine to steam vessels and yachts, that might afterward be converted into vessels of war, and they appear quite consistent with the acknowledged law of nations.

II.—As to an express or implied engagement of Great Britain.

Great Britain bad no treaty or convention with the United States as to any of these matters, but she had, in 1819, for the protection of her own peace and security, and to enable her the better to preserve her neutrality in cases of war between other countries, enacted a municipal law prohibiting, under penalties, (among other things.) “the equipment, furnishing, fitting out, or arming of any ship or vessel within British jurisdiction, with intent or in order that such ship or vessel should be employed in the service of any foreign Prince,” (or other belligerent,) “with intent to cruise or commit hostilities against any Prince, state, or potentate,” &c., with whom Great Britain might be at peace. Every attempt or endeavor to do, or to aid in doing, any of these prohibited acts was also forbidden; every ship or vessel which might be equipped, or attempted to be equipped, &c., contrary to these prohibitions, was declared forfeited to the Crown, and the officers of Her Majesty’s customs were authorized to seize and to prosecute to condemnation in the British court of exchequer every ship or vessel with respect to which any such act should be done or attempted within British jurisdiction. This law (which was called the Foreign Enlistment Act) was regarded by Her Britannic Majesty’s advisers, not only as prohibiting all such expeditions and armaments, augmentation of the force of armaments, and recruitments of men, as, according to the general laws of nations, would be contrary to the duties of a neutral State, but also as forbidding the fitting out or equipping, or the special adaptation, either in whole or in part, to warlike use, within British jurisdiction, of any vessel intended to carry on war against a Power with which Great Britain might be at peace, although such vessel might not receive, or be intended to receive, any armament within British jurisdiction; and although she might be built and sold by ship-builders in the ordinary course of their trade to the order of a belligerent purchaser, so as not to offend against any known rule of international law.3. Source II. Express or implied engagements of Great Britain.

It has never been disputed by Her Majesty’s Government that when, at the time of the breaking out of a war, prohibitions of this kind, exceeding the general obligations of international law, exist in the municipal law of a neutral nation, a belligerent, who accepts them as binding upon himself and renders obedience to them, has a right to expect that they will be treated by the neutral Government as equally binding upon his adversary, and enforced against that adversary with impartial good faith, according to the principles and methods of the municipal law, of which they form part. Obligations which are incumbent upon neutral nations by the universal principles of international law stand upon a much higher ground; as to them, a belligerent has a right to expect that the local law should make proper provision for their performance; and, if it fails to do so, the local law cannot be pleaded as constituting the measure or limit of his right. But a right created by the municipal law of a neutral State must receive its measure and limit as much with respect to any foreign belligerent Power as with respect to the citizens of the neutral State itself, from the municipal law which created it. Any engagement of the neutral toward a belligerent State, which may be implied from the existence of such a law, can go no farther than this. And if to this is superadded an express promise or undertaking to apply the law in good faith to all cases, to which there is reasonable ground for believing it to be applicable, that promise and undertaking leaves the nature of the obligation the same; it does not transfer the prohibition or the right or the belligerent with respect to the manner of enforcing it from the region of municipal to that of international law.4. Effect of prohibitory municipal laws.

Accordingly, the Minister of the United States, during the civil war, constantly applied to Her Majesty’s Government to put this municipal law of Great Britain in force. To select two out of a multitude of instances: On the 9th of October, 1862, (soon after the departure of the Alabama,) Mr. Adams sent to Earl Russell an intercepted letter from the Confederate Secretary of the Navy, in which the Florida was referred to “as substantiating the allegations made of infringement of the Enlistment Law by the insurgents of the United States in the ports of Great Britain;” and added:

I am well aware of the fact to which your Lordship calls my attention in the note of the 4th instant, * * * that Her Majesty’s Government are unable to go beyond the law, municipal and international in preventing enterprises of the kind referred to. But in the representations which I have had the honor lately to make, I beg to remind your Lordship that I base them upon evidence which applies directly to infringements of the municipal law itself, and not to anything beyond it.¹

And on the 29th of September, 1863, writing with respect to the ironclad rams at Birkenhead, he said:

So far from intimating hostile proceedings toward Great Britain unless the law, which I consider insufficient, is altered, [quoting words from a letter of Earl Russell,] the burden of my argument was to urge a reliance upon the law as sufficient, as well from the past experience of the United States, as from the confidence expressed in it by the most eminent authority in this kingdom.²

In answer to all these applications, Her Majesty’s Government uniformly undertook to use their best endeavors to enforce this law, and to do so (notwithstanding a diversity of opinion, even upon the judicial Bench of Great Britain, as to its interpretation) in the comprehensive sense in which they themselves understood it, not only by penal but by preventive measures, (i. e., by the seizure of any offending vessels before their departure from Great Britain,) upon being furnished with such evidence as would constitute, in the view of British law, reasonable ground for believing that any of the prohibited acts had been committed or were being attempted.

When, therefore, Her Majesty’s Government, by the sixth article of the Treaty of Washington, agreed that the Arbitrators should assume that Her Majesty’s Government had undertaken to act upon the principles set forth in the three Rules, (though declining to assent to them as a statement of principles of international law, which were in force at the time when the claims arose,) the effect of that agreement was not to make it the duty of the Arbitrators to judge retrospectively of the conduct of Her Majesty’s Government according to any false hypothesis of law or of fact, but to acknowledge, as a rule of judgment for the purposes of the Treaty, the undertaking which the British Government had actually and repeatedly given to the Government of the United States, to act upon the construction which they themselves placed upon the prohibitions of their own municipal law, according to which it was coincident, in substance, with those Rules.5. The three Rules of the Treaty of Washington.

With respect to these three Rules, it is important to observe that not one of them purports to represent it as the duty of a neutral Government to prevent, under all circumstances whatever, the acts against which they are directed. The first and third Rules recognize an obligation (to be applied retrospectively upon the footing, not of an antecedent international duty, but of a voluntary undertaking by the British Government) “to use” within the neutral jurisdiction “due diligence to prevent” the acts therein mentioned; while the second recognizes a like obligation “not to permit or suffer” a belligerent to do certain acts; words which imply active consent or conscious acquiescence.

III.—Principles of Law relative to the diligence due by one State to another.

The obligation of “due diligence,” which is here spoken of, assumes under the first Rule expressly, and under the third by necessary implication, the existence of a “reasonable ground of belief;” and both these expressions, “due diligence” and “reasonable ground of belief,” must be understood, in every case, with respect to the nature of the thing to be prevented, and the means of prevention with which the neutral Government is or ought to be provided. When the obligation itself rests not upon general international law, but upon the undertaking of a neutral Government to enforce in good faith the provisions of its own legislation, the measure of due diligence must necessarily be derived from the rules and principles of that legislation. When the obligation rests upon the more general ground of international law, inasmuch as it is requisite in the nature of things that every obligation of a Government, of whatever kind, must be performed by the use of the lawful powers of that Government within the sphere of its proper authority, it will be sufficient if the laws of the neutral State have made such proper and reasonable provision for its fulfillment as is ordinarily practicable, and as, under the conditions proper for calling the obligation into activity, may reasonably be expected to be adequate for that purpose; and if upon the occurrence of the emergency recourse is had, at the proper time and in the proper manner, to the means of prevention provided by such laws.6. General principles for finding what diligence is due.

Nothing could be more entirely abhorrent to the nature or more inconsistent with the foundations of what is called international law than to strain it to the exaction from neutral Governments of things which are naturally or politically impossible, or to the violation of the principles on which all national Governments (the idea of which necessarily precedes that of international obligation) themselves are founded.

It will be convenient, in this place, to examine the meaning of certain propositions extracted in the Argument of the United States from Sir Robert Phillimore’s work on international law, which were certainly not intended by that jurist to be understood in the absolute and unqualified sense in which the Counsel of the United States seem desirous of using them. It is proper here to mention that Sir Robert Phillimore, the author of that work, was appointed Her Britannic Majesty’s Advocate, in the room of Sir John Harding, in August, 1862; and that with respect to all the questions which afterward arose between the British Government and the United States, till some years later than the termination of the war, the British Government acted under his advice, which must be presumed to have been in accordance with his view of international obligations. That period covers the ground of all the claims now made by the United States against Great Britain, except those which relate to the Sumter and the Nashville, and to the original departure of the Florida and the Alabama from Great Britain.7. The maxims cited by the United States from Sir R. Phillimore, on the question, “Civitasne deliguerit, an cives ?”

The following extract (United States Argument, page 20) is from the Preface to the second edition of the first volume of Sir R. Phillimore’s work, (pp. 20–22:)

There remains one question of the greatest importance, namely, the responsibility of a state for the acts of her citizens, involving the duty of a neutral to prevent armaments and ships of war issuing from her shores for the service of a belligerent, though such armaments were furnished and ships were equipped, built, and sent without the knowledge and contrary to the orders of her Government.

The question, to what extent the State is responsible for the private acts of its subjects, (civitasne deliquerit, an cives?) is one of the most important and interesting parts of the law which governs the relations of independent States.

* * * * * * *

It is a maxim of general law that, so far as foreign States are concerned, the will of the subject must be considered as bound up in that of his Sovereign.

It is also a maxim that each State has a right to expect from another the observance of international obligations, without regard to what may be the municipal means which it possesses for enforcing this observance.

The act of an individual citizen, or of a small number of citizens, is not to be imputed without clear proof to the Government of which they are subjects.

A Government may by knowledge and sufferance, as well as by direct permission, become responsible for the acts of subjects whom it does not prevent from the commission of any injury to a foreign State.

A Government is presumed to be able to restrain the subject within its territory from contravening the obligations of neutrality to which the State is bound.

Upon this passage, which couples together “armaments and ships of war,” it is to be observed, in the first place, that there is nothing in it which implies any different view of the extent of those international obligations (as distinct from its own municipal prohibitions) by which a State is bound, from that which is shown to have been established by earlier authorities. Sir R. Phillimore is too sound a jurist to suppose that any private opinion of a particular jurist could impose retrospectively upon the Governments of the civilized world obligations not previously recognized. He does not define here what are “the obligations of neutrality by which the State is bound;” he leaves them to be ascertained from the proper sources of information.

Next, when he lays it down as a maxim, that “each State has a right to expect from another the observance of international obligations, without regard to what may be the municipal means which it possesses for enforcing this observance,” he says nothing at all inconsistent with the proposition, that a neutral State will have observed its international obligations with due diligence, if, having provided itself with municipal means suitable to the nature and character of those obligations, it proceeds to use those means in good faith, on the proper occasions, and in the proper manner, though (it may be) without succeeding in the prevention of everything which it is bound to endeavor to prevent. The learned author’s meaning, and the kind of cases which he has in view, are apparent from the reference which he makes in the foot-note to Part IV, ch. i, of the same volume, where he discusses the doctrine of “intervention” in the following terms:

CCCXCII. And first of all, it should he clearly understood that the intervention of bodies of men, armed or to be armed, uncommissioned and unauthorized by the State to which they belong, in a war, domestic or foreign, of another State, has no warrant from international law. It has been already observed (Section CCXIX) that it is the duty of a State to restrain its subjects from invading the territory of another State; and the question, when such an act on the part of subjects, though unauthorized by the State, may bring penal consequences upon it, has received some consideration. It is a question to which the events of modern times have given great importance, and as to which, during the last half-century, the opinions of statesmen, especially of this country (Great Britain) have undergone a material change. That this duty of restraining her subjects is incumbent upon a State, and that her inability to execute it cannot be alleged as a valid excuse, or as a sufficient defense to the invaded State, are propositions which, strenously contested as they were in 1818, will scarcely be controverted in 1870. The means which each State has provided for the purpose of enabling herself to fulfill this obligation form an interesting part of public and constitutional jurisprudence, to the province of which they, strictly speaking, belong. This question, however, borders closely upon the general province of international law, and upon the particular theme of this chapter.

The proposition that “a Government is presumed to be able to restrain the subject within its territory from contravening the obligations of neutrality, to which the State is bound,” is properly qualified, in the immediately preceding context, by the statement that “the act of an individual citizen, or of a small number of citizens, is not to be imputed without clear proof to the Government of which they are subjects, and that either “knowledge and sufferance,” or “direct permission,” is necessary to make a Government responsible for the acts of subjects “whom it does not prevent from the commission of injury to a foreign State.”

Another passage, bearing upon this latter point, is also cited in the American Argument, from volume iii, p. 218, of the same work:

In fact, the maxim adverted to in a former volume of this work is sound, viz: that a State is prima facie responsible for whatever is done within its jurisdiction; for it must be presumed to be capable of preventing or punishing offenses committed within its boundaries. A body politic is therefore responsible for the acts of individuals, which are acts of actual or meditated hostility toward a nation with which the Government of these subjects professes to maintain relations of friendship or neutrality.

The passage in a former volume here referred to is in the chapter on “Self-Preservation,” vol. i, part 3, chap. x. This, as well as all the other passages relied on by the United States, has reference to the organization of hostile expeditions against a foreign Power in a neutral or friendly territory. “If” (says the learned author) “the hostile expedition of the present” (or late) “Emperor of the French in 1812 against the existing monarchy of France had taken place with the sanction or connivance of the English Government, England would have been guilty of a very gross violation of international law;” and, after some intervening remarks applicable to “all cases where the territory of one nation is invaded from the country of another,” he refers to “a very important chapter, both in Grotius and in his commentator Heineccius, entitled ‘De Pœnarum Communicatione,’ as to when the guilt of a malefactor, and its consequent punishment, is communicated to others than himself.”

“The question,” he proceeds, “is particularly considered with reference to the responsibility of a State for the conduct of its citizens. The tests for discovering ‘civitasne deliquerit an cives’ are laid down with great precision and unanimity of sentiment by all publicists, and are generally reduced to two, as will be seen from the following extract from Burlamaqui, who repeats the opinion of Grotius and Heineccius.” “In civil societies (he says), when a particular member has done an injury to a stranger, the Governor of the Commonwealth is sometimes responsible for it, so that war may be declared against him on that account. But to ground this kind of imputation, we must necessarily suppose one of these two things, sufferance or reception, viz: either that the Sovereign has suffered this harm to be done to the stranger, or that he afforded a retreat to the criminal. In the former case it must be laid down as a maxim that a Sovereign who, knowing the crimes of his subjects—as, for example, that they practice piracy on strangers—and being also able and obliged to hinder it, does not hinder it, renders himself criminal, because he has permitted, and consequently furnished a just reason of war. The two conditions above mentioned—I mean the knowledge and sufferance of the Sovereign—are absolutely necessary, the one not being sufficient without the other to communicate any share in the guilt. Now, it is presumed that a Sovereign knows what his subjects openly and frequently commit; and as to his power of hindering the evil this likewise is always presumed, unless the want of it be clearly proved.”

“So Vattel: ‘Si un souverain, qui pourrait retenir ses sujets dans les règles de la justice et de la paix, souffre qu’ils maltraitent une nation, ou dans son corps ou dans ses membres, il ne fait pas moins de tort à toute la nation que s’il la maltraitait luimême.’

“The act of an individual citizen, or of a small number of citizens, is not to be imputed, without special proof, to the nation or Government of which they are subjects. A different rule would of course apply to the acts of large numbers of persons, especially if they appeared in the array and with the weapons of a military force, as in the case of the invasion of Portugal, which has been referred to above.”

To the principles of these extracts, relating as they do only to hostile expeditions or the invasion of territory or other operations of war, organized and carried on in a neutral country against a belligerent State, with the knowledge and sufferance of the neutral Government, no just exception can be taken. But they do not assert, and they have no tendency to prove, that the construction and sale of an unarmed ship of war by neutral ship-builders to a belligerent within neutral territory is, in the view of international law, a “hostile expedition.” Upon the question of the due diligence required from a neutral Government for the prevention of those things which (when the requisite knowledge of them exists) it is bound to endeavor to prevent, and for which it will become responsible if it “knows and suffers” them, they throw no light beyond this: That a neutral Government is presumed, in general, to have the means of performing its international obligations; that it may also be presumed to know (and to suffer, if it does not interfere with them) hostile acts of an unequivocal character done within its territory by large numbers of persons without disguise or concealment; and, on the other hand, that it is not presumed to have the means of preventing, and is therefore not held responsible for suffering those things (though done by its citizens to the injury of a friendly State) of which it cannot be presumed or proved to have had knowledge; and that the knowledge or sufferance of such acts on the part of individual citizens, or of small numbers of citizens, is not to be imputed to their Government without positive proof of such knowledge and sufferance, in each particular case, as a matter of fact.

These are among the elementary principles on which, in the present controversy, the British Government relies. Nothing can be further from the truth than that the British Government has ever (as is repeatedly, and in a manner not free from offense, imputed to it in the Argument of the United States) “defended itself against charges of wrong by setting up a plea of incapacity to discharge the duties of a sovereign State.” It has always maintained, and it still maintains, that it has justly and adequately discharged all those duties. Wherever, in this controversy, it has referred to the limitations upon its own power, imposed by the laws of Great Britain, from which its existence and its authority are derived, it has done so in strict accordance with the principles of international equity and justice. Those principles, being founded on the laws of nature and reason and the received usages of nations, cannot contemplate the performance of international obligations by national Governments as against their own citizens and within their own territory, except by means of just and reasonable general laws made for that purpose, and by the proper use of the legal means so provided.8. For what purposes Great Britain refers to her municipal law.

Those principles also recognize the absolute right and duty of every national Government, which has extended the prohibitions of its own municipal law to things which it was not, by international law, antecedently bound to prohibit, to act upon those municipal laws, as constituting, with respect to such matters, the just and the only measure, as well of the right of a foreign nation seeking to have the benefit of them, as of its own powers of prevention.

The passage in Tetens’s work (“Considérations des Droits Réciproques des Puissances Belligérantes et des Puissances Neutres sur Mer”) cited from M. Reddie’s English, in the note at page 23 of the British Counter Case, is irrefragably sound and just:9. Doctrine of Tetens as to municipal laws, in excess of antecedent international obligations.

It is a wise foresight for neutral Governments to obviate, during war, as far as possible, all illegal conduct on the part of their subjects, for the double advantage of preserving them from risks, and of preventing the suspicions of belligerents against the traders who sail under neutral flags.

* * * * * * *

What neutrals, however, may do in this respect does not arise from any right which imposes on them the obligation of maintaining a more special surveillance over their subjects during war than they are in the habit of doing during peace, nor to exercise a more extensive inspection over the legality of their conduct toward belligerents than that which is prescribed by law.

* * * * * * *

From neutral Governments not being under an obligation to obviate the abuses of their subjects, it follows that belligerents, whatever condescension they may have to expect from them for that purpose, cannot reasonably require them to extend their measures beyond what is in practice in these same neutral countries for preventing frauds being committed on their own Customs, and for checking the other deceitful contrivances for evading payment of the revenues of the State. The maximum of precaution, in this case, is to maintain and enforce the observance of neutrality in vessels and cargoes with the same diligence and exactness as are exercised in inquiries and other proceedings relative to taxes or imposts and Customs. He who does as much to prevent a wrong meditated against another as he does for his own protection, satisfies every just and reasonable expectation on the part of that other. Perhaps, however, more might be done, if it were wished, completely to attain the object. In time of war special instructions might be ordered; tribunals of inquiry might be established against the frauds of merchants and ship-owners, and more rigor might be shown in the punishment of their delinquencies. But this cannot be demanded on the one side; and, on the other, it might be difficult to grant it, because there might result from it consequences inconsistent with the general spirit of the prohibitory laws of the State. At least, this care must be left to the neutral Governments, to whom alone it belongs to judge what it may be proper for them to do with reference to the circumstances of the war.

Furthermore, in considering any question of “due diligence” on the part of a national Government, in the discharge of any of its duties, it is unavoidably necessary, upon those general principles of reason, and of the practice of nations, which are the foundations of international law, to have regard to the diversity in the forms and Constitutions of different Governments, and to the variety of the means of operation, for the performance of their public duties, resulting from those various forms and Constitutions. Thus, it is stated, at page 49 of the Argument of the United States, that “in the United States it was, necessary to impart such executive powers” (as were given by the Acts of Congress of 1794, 1817, and 1818) “to the President; because, according to the tenor of our Constitution, it does not belong to the President to declare war, nor has he complete and final jurisdiction of foreign affairs. In all that he must act with the concurrence, as the case may be, of Congress or of the Senate.” If the President has no executive power in the United States, except what is conferred upon him expressly by the law of that country, it is equally certain that the Sovereign of Great Britain, and the various Ministers of State and other officers by whom the executive Government in Great Britain is carried on under her authority, have also no executive power except what is conferred upon them by British law; and that (assuming the laws of both those countries to make just and reasonable provision for the fulfillment, within their respective jurisdictions, of their international obligations) the question whether the Government has, or has not, acted with “due diligence” in a particular case, is one which is incapable of being determined abstractedly, without reference to those laws. If the inquiry be, whether the provision which the national laws have made for the performance of international obligations is in fact just, and reasonably sufficient, it is impossible rationally to deny that principles of administration and rules of legal procedure which experience has proved to be just, and reasonably sufficient for all the great purposes of internal government, (the primary objects for which all Governments exist,) may be generally adhered to when the legal repression of acts injurious to foreign States becomes necessary, without exposing the national Government which relies on them to the imputation of a want of due diligence.10. Influence upon the question of diligence of the different forms of national Governments.

Any theory of diligence in the performance of international obligations which implies that foreign Governments, to whom such obligations are due, owe no respect whatever to the distinctive Constitutions of national Governments, or have a right to call for their violation in particular cases, or to dictate legislative changes at variance with them, would be fatal to national independence; and (as no great Power could tolerate or submit to it) would tend, not to establish, but to subvert the peace and amity of nations. In the words of the British Summary, (page 9, sec. 30,) “its tendency, if admitted, would be to introduce a universal hypothesis of absolute and arbitrary power as the rule of judgment for all such international controversies.” The practical falsehood of such a hypothesis, as applied at the present time to the two nations engaged in the present controversy, to the three nations which furnish the judges of that controversy, and to most of the other civilized nations of the world—its probably universal falsehood as to every European and American State in the not remote future—is perhaps not the gravest objection to it. It is at variance with all the highest principles of progress, of advancing liberty, and of extended civilization, which distinguish modern society. If the dreams of some political philosophers could be accomplished, and if all the nations of the earth could be united in one great federation under the most perfect imaginable political constitution, the rights both of particular States, and of individual citizens, and all questions, whether as to the repression and prevention, or as to the punishment of unlawful acts by States or citizens, would certainly be determined, not by arbitrary power, but by fixed and known laws and settled rules of procedure. Is it conceivable that it should enter into the mind of man (nay, of citizens of one of the freest States in the world, whose whole history is a refutation of such a doctrine) that practical impossibilities, which (if they were possible) would be hostile to the highest interests and intelligence of mankind, can be demanded by one State of another, in the name of international law?11. Objections to any theory of the diligence due from neutral Governments, which involves a universal hypothesis of arbitrary power.

IV.—On the preventive powers of the Laws of Great Britain.

There are several passages, in the Argument of the United States, which appear (A) to contend that the Royal Prerogative in Great Britain actually extends, under the British Constitution, to a power of summary and arbitrary control, without legal procedure, over the persons and property of its citizens, when there is any ground to suppose that such citizens may be about to act, or that such property may be about to be employed, in a manner hostile to a foreign belligerent Power, with which Her Majesty is at peace; and (B) to assume that, if such a prerogative power does not actually exist under the British Constitution, the very fact of its absence is proof of a defect of British law, in itself amounting to an abnegation of the use of due diligence (or, what is the same thing, to a want of the means of due diligence) for the prevention of such acts.12. The Argument of the United States, as to the necessity of a reliance on Prerogative, for due diligence.

There are, also, other passages which assert (C) that “Great Britain pretends that punitive law is the measure of neutral duties;” while (D) “all other Governments, including the United States, prevent peril to the national peace by means of prerogative force, lodged, by implied or express constitutional law, in the hand of the Executive,” (page 37.)

These arguments require to be severally examined.

(A.) The following passages embody the American argument as to the prerogative power, supposed by it to be actually vested in the Crown of Great Britain:13. The arguments as to prerogative powers belonging to the British Crown.

(1.) We find, on the most cursory observation of the Constitution of Great Britain, that the declaration of war, the conclusion of peace, the conduct of foreign affairs, that all these things are in Great Britain elements of the prerogative of the Crown.

We cannot believe, and do not concede, that in all these greater prerogative powers there is not included the lesser one of preventing unauthorized private persons from engaging in private war against a friendly foreign State, and thus committing Great Britain to causes of public war on the part of such foreign State, (pages 24, 25.)

(2.) The whole body of the powers, suitable to the regulation and maintenance of the relations of Great Britain, ad extra, to other nations, is lodged in the prerogative of the Crown. The intercourse of peace, the declaration and prosecution of war, the proclamation and observance of neutrality, (which last is but a division of the general subject of international relations in time of war,) are all, under the British Constitution, administered by the Royal Prerogative.

We refer to the debates in Parliament upon the Foreign-Enlistment Bill in 1819, and on the proposition to repeal the Act in 1823, and to the debate upon the Foreign Enlistment Bill of 1870, (as cited in Note B of the Appendix to this Argument,) as a clear exhibition of this doctrine of the British Constitution, in the distinction between the Executive power to prevent violations of international duty by the nation, through the acts of individuals, and the punitive legislation in aid of such power, which needed to proceed from Parliament.

We refer, also, to the actual exercise of this Executive power by the Government of Great Britain, without any enabling act of Parliament to that end, in various public acts in the course of the transactions now in judgment before the Tribunal.

1. The Queen’s Proclamation of Neutrality, May 13, 1861.

2. The regulations issued by the Government of Her Britannic Majesty in regard to the reception of cruisers and their prizes in the ports of the Empire, June 1, 1861—June 2, 1865.

3. The Executive orders to detain the Alabama at Queenstown and Nassau, August 2, 1862.

4. The Executive orders to detain the Florida at Nassau, August 2, 1862.

5. The Executive orders to detain the rams at Liverpool, October 7, 1863.

6. The debate and vote in Parliament justifying the detention of the rams by the Government “on their own responsibility,” February 23, 1864.

7. The final decision of Her Majesty’s Government in regard to the Tuscaloosa, as expressed by the Duke of Newcastle to Governor Wodehouse, in the following words: “If the result of these inquiries had been to prove that the vessel was really an un-condemned prize, brought into British waters in violation of Her Majesty’s orders made for the purpose of maintaining her neutrality, I consider that the mode of proceeding in such circumstances most consistent with Her Majesty’s dignity, and most proper for the vindication of her territorial rights, would have been to prohibit the exercise of any further control over the Tuscaloosa by the captors, and to retain that vessel under Her Majesty’s control and jurisdiction, until properly reclaimed by her original owners.” November 4, 1863.

8. The Executive order that, “for the future no ship of war belonging to either of the belligerent Powers of North America shall be allowed to enter or to remain, or to be in any of Her Majesty’s ports for the purpose of being dismantled or sold.” September 8, 1864.

9. The final Executive orders to retain the Shenandoah in port “by force, if necessary,” and to “forcibly seize her upon the high seas.” September and October, 1865.

10. The rejection by Parliament of the section of the new Foreign-Enlistment Bill, which provided for the exclusion from British ports of vessels which had been fitted out or dispatched in violation of the Act, as recommended by the Report of the Royal Commission. This rejection was moved by the Attorney-General and made by Parliament, on the mere ground that this power could be exercised by Order in Council.

That these acts were understood by the Government of Great Britain to rest upon the prerogative and its proper exercise, is apparent from the responsible opinions of the Law Officers given upon fitting occasions, (pages 323–325.)

These passages exhibit a very strange confusion of ideas, between the prerogative of the British Crown, as representing the British nation in its external relations towards foreign Powers, not subject to its laws, and its means of control within its own territory over its own citizens or commorant subjects, its relations to whom are created and defined by those laws. The declaration of war and peace, or of neutrality in a foreign war; the issuing orders and regulations as to the reception of foreign cruisers or their prizes in British ports; the exercise of control over foreign belligerent vessels or prizes (as in the supposed case of the Tuscaloosa) brought into British ports by a belligerent Power contrary to Her Majesty’s orders and regulations; the exclusion of foreign belligerent vessels from being brought into British ports to be dismantled or sold, or from being brought into such ports at all, if originally fitted out or dispatched from British territory in violation of British law; the seizure of a foreign vessel, (as in the supposed case of the Shenandoah,) if found committing depredations on the high seas, after the belligerency of the Power, by which she was commissioned, had ceased; all these are acts within the former category, concerning the external relations of Great Britain towards foreign Powers, not subject to British law or to British national jurisdiction.

The Executive orders to detain the Alabama at Queenstown and Nassau, the Florida at Nassau, and the rams at Liverpool, were on the other hand all issued by virtue of the powers with which the British Government was armed against its own subjects by British municipal law, (viz, by the Foreign-Enlistment Act of 1819,) and not by virtue of any actual or supposed prerogative of the Crown.

The words used by the British Attorney-General in Parliament, on the 23d of February, 1861, with reference to the detention of the rams at Birkenhead, (or to the preliminary notice that they would be seized if any attempt were made to remove them,) have been several times quoted in the American Argument.¹ Those words were, that the Government had given the orders in question, “on their own responsibility.” But this does not mean that the orders given were, or were supposed to be, founded on any other authority than the powers of seizure given by the Foreign-Enlistment Act; to which reference had been expressly made, as the authority for what was done, in a letter to the Law-Officers dated October 19, 1863, also quoted at page 351.

Those orders were necessarily given upon the responsibility of the Executive Government, on whom the burden was thrown, by the Foreign-Enlistment Act, of first taking possession of an offending vessel, in any case in which they might have reasonable ground for belief that the law was, either by actor by attempt, infringed; and afterward justifying what they had done by a regular judicial proceeding for the condemnation of that vessel, in the proper Court of Law. Exactly the same language had been used, by the same Law-Officer of the British Government, when Solicitor-General, in a previous debate on the seizure of the Alexandra, (24 April, 1863, Hansard’s Debates, vol. clxx, pp. 750, 752.) After expressly saying that “in this case everything had been done according to law,” he added, it was our duty, upon having prima-facie evidence which, in our judgment, came up to the requirements of the clause, to seize the ship or vessel, according to the form of proceeding under the Customs Acts. There is no other way of dealing with the ship; you cannot stop the ship by going before a magistrate; it must be done upon the responsibility of the Government; and so it has been done.”

The fundamental principles of British Constitutional Law, relative to this branch of the Argument, will be found in all the elementary works on that subject. The subjoined extracts are from Stephen’s edition of Blackstone’s Commentaries:14. The true doctrine as to the powers of the Crown under British law.

It is expressly declared, by Statutes 12 and 13, William III, cap. 2, that the laws of England are the birthright of the people thereof; and all the Kings and Queens who shall ascend the throne of this realm ought to administer the Government of the same according to the said laws; and all their officers and ministers ought to serve them respectively according to the same. (Vol. ii, p. 424, 6th edition.)

Since the law is in England the supreme arbiter of every man’s life, liberty, and property, Courts of Justice must at all times be open to the subject, and the law be duly administered therein. (Ibid., p. 505.)

The law of nations * * is a system of rules established by universal consent among the civilized inhabitants of the world. * * * As none of these (independent) States will allow a superiority in the other, therefore, neither can dictate nor prescribe the rules of this law to the rest; but such rules must necessarily result from those principles of natural justice in which all the learned of every nation agree, and to which all civilized States have assented. 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 subject of its jurisdiction, is here adopted in its full extent by the common law, and held to be the law of the land. Hence 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 this kingdom, without which it must cease to be a part of the civilized world. * * * (Vol. iv, pages, 302, 303.)

With respect to the particular question of the power of the British Crown to prevent, by virtue of its prerogative, the building of ships of war for foreign Powers within its dominions, the law of Great Britain was authoritatively explained as long ago as 1721.

In Michaelmas vacation, 1721, (says Fortescue, in his Reports, page 388,) the Judges were ordered to attend the House of Lords concerning the building of ships of force for foreigners; and the question the Lords asked the Judges was, whether by law His Majesty has a power to prohibit the building of ships of war, or of great force, for foreigners, in any of His Majesty’s dominions? And the Judges were all of opinion, except Baron Mountague, (Chief Justice Pratt delivering their opinion,) that the King had no power to prohibit the same; and declared that Mountague said he had formed no opinion thereon. This question was asked on the occasion of ships built and sold to the Czar being complained of by the Minister of Sweden. Trevor and Parker gave the same opinion in 1713.

(B.) In the following passages of their Argument, the American Counsel appear to contend that the British Government must be deemed to have been wanting in due diligence because they proceeded by law, and not by suspension of law, or by prerogative without law.15. The American view of an a priori obligation on this subject.

(1.) Apart from other and direct proofs of permission, or knowledge and sufferance, the responsibility for any injury is fixed on the local Sovereign, if he depend on municipal means of enforcing the observance of international obligations, instead of acting preventively to that end in his prerogative capacity as sovereign. (P. 23.)

(2.) The next great failure of Great Britain to use due diligence to prevent the violation of its neutrality, in the matters within the jurisdiction of the tribunal, is shown in its entire omission to exert the direct Executive authority, lodged in the Royal Prerogative, to intercept the preparations and outfits of the offending vessels, and the contributory provisions of armament, munitions, and men, which were emitted from various ports of the United Kingdom. We do not find in the British Case or Counter Case any serious contention, but that such powers as pertain to the Prerogative, in the maintenance of international relations, and are exercised as such by other great Powers, would have prevented the escape of every one of the offending vessels emitted from British ports, and precluded the subsidiary aids of warlike equipment and supplies which set them forth and kept them on foot for the maritime hostilities which they maintained. (Page 165.)

(3.) The British Ministers do not scruple to suspend the privileges of the writ of habeas corpus, whether with or without previous parliamentary authorization, and whether in the United Kingdom or in the Colonies, on occasion of petty acts of rebellion or revolt; that is, in the case of domestic war; a fortiori, they should and may arrest and prevent subjects or commorant foreigners engaged in the commission of acts of foreign war to the prejudice of another Government. (P. 25.)

The answer to these arguments has been, in substance, anticipated; but with respect to each of them, a few further remarks may not be superfluous.

With respect to the first, it is difficult to understand whether the Counsel for the United States mean to imply (in the face of the admission as to the limitation of the powers of their own President to such authority as was expressly conferred upon him by the Acts of Congress of 1794, 1817, and 1818, which is found at page 27 of their Argument) that the President of the United States has a “prerogative capacity as Sovereign,” by which he can “act preventively,” or that he does not “depend upon municipal means” for the enforcement of such international obligations as are now in question with Great Britain. Legal powers conferred upon the President of the United States by Acts of Congress for the performance of international obligations, are as much “municipal means” as legal powers conferred upon the Sovereign of Great Britain by an Act of the British Parliament, for the like purpose.

With respect to the second passage, it is to be observed, that it not only imputes as a want of due diligence the abstinence from the use of arbitrary powers to supply a supposed deficiency of legal powers, but it assumes that the United States has a right, by international law, to expect Great Britain to prevent the exportation from her territory of what it describes as “contributory provisions,” arms, munitions, and “subsidiary aids of warlike equipment and supplies,” though such elements of armaments were uncombined, and were not destined to be combined, within British jurisdiction, but were exported from that territory under the conditions of ordinary exports of articles contraband of war. For such a pretension no warrant can be found either in international law, or in any municipal law of Great Britain, or in any one of the three Rules contained in the VIth Article of the Treaty of Washington.

The third passage requires more particular attention, because it presents, in a particularly striking manner, a radically false assumption, which pervades many other portions of the United States Argument, viz, that the acts done within British jurisdiction, which Great Britain is said not to have used due diligence to prevent, were “acts of war” by British subjects or commorant foreigners against the United States, justifying and calling for similar means of repression to those which might be necessary in a case of “rebellion or revolt, i. e., of domestic war.”

It is impossible too pointedly to deny the truth of this assumption, or too positively to state that, if any military or naval expeditions, or any other acts or operations of war against the United States, in the true and proper sense of those words, had been attempted within British territory, it would not have been necessary for the British Government either to suspend the Habeas Corpus Act or to rely on the Foreign Enlistment Act, in order to enable it to intercept and prevent by force such expeditions or such acts or operations of war. The whole civil police, and the whole naval and military forces of the British Crown would have been lawfully available to the Executive Government, by the common law of the realm, for the prevention of such proceedings. But the fact is, that nothing of this kind ever happened or was attempted, during the civil war in the United States, in Great Britain, or in any of the British Possessions, except (in the year 1863–’64) in some of the British North American Provinces; and, when such attempts were made in those provinces, the powers of the common law were at once put in force for their repression, and were strengthened by special and extraordinary legislation; nor is any complaint now made by the Government of the United States of any want of due diligence on the part of the British North American authorities in that respect. Not only was no military or naval expedition and no act or operation of war ever attempted elsewhere within British territory against the United States, but (unless the arming of the Florida at Green Cay, in the Bahamas, be an exception) no attempt was ever made in any other part of the British dominons, so much as to equip or dispatch for the Confederate service any armed vessel, by which the question whether it had or had not the character of a naval expedition prohibited by international law might have been raised.16. The British Crown has power, by common law, to use the civil, military, and naval forces of the realm to stop acts of war within British territory.

(C.) The next propositions are, that “Great Britain alone pretends that punitive law is the measure of neutral duties”—that the powers vested in the Executive Government of Great Britain by the Foreign Enlistment Act of 1819 were punitive only, and not preventive—and that (D) “all other Governments, including the United States, prevent peril to the national peace through means of prerogative force, lodged, by implied or express constitutional law, in the hands of the Executive.”17. The assertion of the United States that Great Britain relies on punitive, and not on preventive law, disproved.

It is necessary to notice, in passing, (with reference to the points (A) and (B,) already dealt with,) the fallacy here introduced by the improper use of the term “prerogative force,” to signify definite legal powers, vested by law in the Executive Government of a nation. Such is not the sense in which the word “prerogative” is used in Great Britain; nor does it appear to be that in which it is used in the parts of the American Argument already dealt with.

The answer to proposition (C) is, simply, that it is without foundation in fact. Great Britain has never pretended that punitive law is the measure of neutral duties; it is not true that the powers vested in the Executive Government of Great Britain by the Foreign Enlistment Act of 1819, were punitive only and not preventive. If the powers given, by the Acts of Congress already mentioned, to the President of the United States, can with any propriety of language be described as powers to “prevent peril to the national peace by means of prerogative force,” the same description is equally applicable to the powers given to the Executive Government of Great Britain, by the Foreign Enlistment Act of 1819.18. The preventive power of the British law explained.

That Act, as already noticed, prohibited under penalties the equipment or armament of ships for foreign belligerent service; the augmentation of the warlike force of foreign ships of war; and the enlistment or recruitment of men for foreign belligerent service. It prohibited also any attempt or endeavor to do any of those acts—the prohibition as to ships, &c., being restricted to acts done, or attempts made, within British jurisdiction. So far as this Act imposed penalties, it was of course punitive. But it was preventive also, (for which reason it struck at attempts and endeavors, as well as acts)—and prevention was the main purpose for which it was passed, as appears from the preamble, which recites, that the laws previously in force “were not sufficiently effectual for preventing the prohibited acts.”

These preventive powers are contained in the fifth, sixth, and seventh sections. The fifth and sixth sections authorized the Executive Government, in any part of the British dominions, upon receiving information on oath of the violation of the provisions against enlistment by persons on board any vessel within British jurisdiction, to detain such vessel, and prevent her from proceeding to sea on her voyage with the persons so unlawfully enlisted on board; and also to detain her until certain penalties had been paid, if her commander had been privy to the unlawful enlistment. The seventh section authorized any officer of Customs or Excise, or any other officer of the British navy, by law empowered to make seizures for any forfeiture incurred under any of the laws of Customs or Excise or the laws of trade and navigation, to seize any ship or vessel equipped or armed, or attempted to be equipped or armed, contrary to its provisions, in such places and in such manner, in which the same officers respectively would be empowered to make seizures under the laws of Customs or Excise, or under the laws of trade and navigation.

The powers of seizure (to be followed afterward by proceedings in the Court of Exchequer for the condemnation of the vessel) which from 1860 to 1866 were available for the purpose of prevention under this statute, are contained in section 223 of the British Customs Law Consolidation Act of 1853, and in section 103 of the Merchant Shipping Act of 1854. By section 223 of the Customs Act, power was given to any officer of Her Majesty’s Navy, duly employed for the prevention of smuggling, and on full pay, or any officer of Customs or Excise, to seize or detain, in any place, either upon land or water, all ships and boats, and all goods whatever, liable to forfeiture. By section 103 of the Merchant Shipping Act, power was given to any commissioned officer on full pay, in the naval service of Her Majesty, or any British officer of Customs, to seize and detain any ship, which might, either wholly or as to any share thereof, have become liable to forfeiture under that Act.

The papers before the Arbitrators contain several instances of the employment of officers in Her Majesty’s naval service, both at Liverpool and at Nassau, for the execution of duties connected with the enforcement of these laws. In most cases those duties were intrusted in practice to the officers of Her Majesty’s Customs; but the whole naval force of the British Kingdom might, in case of need, have been lawfully employed, within British jurisdiction, in aid of those officers. When the Georgia was reported to have gone to Alderney, a British ship of war was sent there after her; and if the commander of that ship had found her in British waters, and had ascertained the existence of any grounds warranting her detention, she would have been undoubtedly detained by him. Whenever evidence was forthcoming of an actual or contemplated illegal equipment of any vessel within British jurisdiction, there was ample preventive power under these statutes. Without such evidence, no rule of international law gave a foreign State the right to require that any vessel should be prevented from leaving the British dominions.

The United States have referred, in their Argument, to the question raised as to the interpretation of the British Foreign-Enlistment Act before the English Court of Exchequer, in the case of the Alexandra, and to the opinion in favor of its more restricted construction, which prevailed in that case; the judges being equally divided, and the right of appeal being successfully contested on technical grounds. But in another case (that of the Pampero) a Scottish Court of equal authority adopted the more extended construction upon which the British Government, both before and after the case of the Alexandra, always acted; and, as no vessel was ever employed in the war service of the Confederate States, which was enabled to depart from Great Britain by reason of this controversy as to the interpretation of the Act, it would seem to be of no moment to the present inquiry, even if it had related to a point, as to which Great Britain owed some antecedent duty to the United States by international, as distinguished from municipal, law. But the controversy did not in fact relate to any such point. There was no question as to the complete adequacy of the provisions of that Statute to enable the British Government to prevent the departure from British jurisdiction of any warlike expedition, or of any ship equipped and armed, or attempted to be equipped and armed, within British jurisdiction, for the purpose of being employed to cruise or carry on war against the United States. The sole question was, whether the language of the prohibition comprehended a ship built and specially adapted for warlike purposes, but not armed or capable of offense or defense, nor intended so to be, at the time of her departure from British jurisdiction. All the judges were of opinion that the departure of such a ship from neutral territory was not an act of war, was not a hostile naval expedition, and was not prohibited, inter gentes, by general international law; and two of them thought that, not having any of those characters, it was also not within the prohibitions of the Statute; while the other two were of opinion that the existence of those characters was not, under the words of the law, a necessary element in the municipal offense.19. The doubtful points as to the construction of the British Foreign Enlistment Act never affected the diligence of the British Government.

The language of Baron Bramwell, an eminent British Judge, (afterwards a member of the British Neutrality Laws Commission,) explains clearly and forcibly the view of the case, as it would have stood under international law only, which was taken by the entire Court:20. Baron Bramwell’s view of the international, as distinct from municipal obligation, agreed with that of the American, Attorney-General in 1841.

If we look at the rights and the obligations created by international law, it a hostile expedition, fitted out by a State, leaves its territory to attack another State, it is war; so also, if the expedition is fitted out, not by the State but with its sufferance, by a part of its subjects or strangers within its territories, it is war, at least in the option of the assailed. They would be entitled to say, either you can prevent this or you cannot. In the former case it is your act, and is war; in the latter case, in self-defense we must attack your territory, whence this assault on us proceeds. And this is equally true, whether the State assailed is at war or at peace with all the world.

The right in peace or war is not to be attacked from the territory of another State; that that territory shall not be the basis of hostilities. But there is no international law forbidding the supply of contraband of war; and an armed vessel is, in my judgment, that and nothing more. It may leave the neutral territory under the same conditions as the materials of which it is made might do so. The State interested in stopping it must stop it as it would other contraband of war, viz, on the high seas.

Not only is the doctrine thus stated conformable to all the authorities of international law, to which reference has been made in the earlier part of this paper, but the same doctrine was officially laid down by Mr. Legare, then Attorney General of the United States, in December, 1841, when advising his Government that two schooners of war, built and fitted out, and about to be furnished with guns and a military equipment, in New York, for Mexican service against Texas, ought to be treated as offending against the Act of Congress of 1818. He says:

The policy of this country (the United States) is, and ever has been, perfect neutrality, and non-interference in the quarrels of others. But, by the law of nations, that neutrality may, in the matter of furnishing military supplies, be preserved by the two opposite systems, viz, either by furnishing both parties with perfect impartiality, or by furnishing neither. For the former branch of the alternative it is superfluous to cite the language of publicists, which is express, and is doubtless familiar to you. If you sell a ship of war to one belligerent, the other has no right to complain, so long as you offer him the same facility. The law of nations allows him, it is true, to confiscate the vessel as contraband of war, if he can take her on the high seas; but he has no ground of quarrel with you for furnishing or attempting to furnish it. But, with a full knowledge of this undoubted right of neutrals, this country has seen fit, with regard to ships of war, to adopt the other branch of the alternative, less profitable with a view to commerce, but more favorable to the preservation of a state of really pacific feeling within her borders. She has forbidden all furnishing of them, under severe penalties. (British Appendix, vol. v, p. 360.)

V.—On the preventive powers of the Laws of Foreign Countries.

(D.) It now becomes necessary to observe upon the proposition, that “all other Governments, including the United States, prevent peril to the national peace through means of prerogative force, lodged by implied or express constitutional law in the hands of the Executive.” In other words, a general want of diligence is sought to be established against Great Britain, by an argument derived from the laws of the United States, and of other countries, with a view to show, by the comparison, the insufficiency of the preventive powers of British law.21. On the arguments as to due diligence derived by the United States from foreign laws.

To the whole principle of this argument, so far as it relates to matters not prohibited by the general law of nations, Great Britain demurs; and, even with respect to matters which are prohibited by that general law, it is obvious that nothing can be more fallacious than an attempt at comparison, which, without exact and special knowledge of the whole complex machinery of laws, judicature, and legal procedure, and political and civil administration, which prevails in each different country, can pretend to decide on the relative efficiency of those various laws for political purposes. The materials, however, on which reliance is placed for this comparison in the American Argument, are so manifestly scanty and insufficient as to make the answer to this part of the argument simple, even if it were in principle admissible.

As to the laws of France, Italy, Switzerland, Portugal, Brazil, Belgium, and the Netherlands, and, in fact, of almost every country mentioned in the Argument, except the United States, it can hardly be thought that the Counsel for the United States understand these laws, which are all substantially the same, better than M. Van Zuylen, the Netherlands Minister, who has to administer them, and who, in reply to certain inquiries from the British Chargé d’Affaires at the Hague, wrote:

There is no code of laws or regulations in the Kingdom of the Netherlands concerning the rights and duties of neutrals, nor any special laws or ordinances for either party on this very important matter of external public law. The Government may use Articles 84 and 85 of the Penal Code, but no legislative provisions have been adopted to protect the Government, and serve against those who attempt a violation of neutrality. It may be said that no country has codified these regulations and given them the force of law; and, though Great Britain and the United States have their Foreign-Enlistment Act, its effect is very limited.

This language is criticised in the American Argument as “inaccurate,” but it is in reality perfectly exact, for such provisions as those of Articles 84 and 85 of the French Penal Code cannot possibly be described as either prohibiting or enabling the Government to prevent those definite acts and attempts against which it was the object of the British and the American Foreign-Enlistment Acts to provide. These Articles are punitive only, and they strike at nothing but acts, unauthorized by the Government, which may have “exposed the State to a declaration of war,” or “to reprisals.” The language of the corresponding laws of almost all the other States, except Switzerland, is admitted to be similar. That of Switzerland prohibits generally, under penalties, all “acts contrary to the law of nations,” while it regulates (by enactment, the particular provisions of which are not stated) the enlistment of troops within the Swiss Federal territory.”

No man having the least knowledge of the laws and constitutional systems of Great Britain and the United States can be supposed to imagine that enactments conceived in these vague and indefinite terms, if they had been adopted by either of those countries, would have been of the smallest use for the purpose of preventing such acts as those of which the Government of the United States now complain; much less that they would have been comparable in point of efficiency with the definite means of prevention provided and directed against attempts, as well as acts, by the Acts of Congress and of Parliament, which were actually in force in those nations respectively.

But it is assumed, in the Argument of the United States, that these special laws were in all these countries supplemented by an elastic and arbitrary executive power. Of this assertion no proof in detail is attempted to be given; nor is it believed to be consistent with the fact.

If the French and other Governments issued executive Proclamations forbidding their subjects to do acts of the nature now in question, so also did the Queen of Great Britian. By Her Majesty’s Proclamation of Neutrality, (13th May, 1861,) she “strictly charged and commanded all her subjects to observe a strict neutrality during the hostilities” (between the United States and the Confederates,) “and to abstain from violating or contravening either the laws and statutes of the realm in this behalf, or the law of nations in relation thereto;” and she warned them, “and all persons whatsoever entitled to her protection”—

“That if any of them should presume to do any acts in derogation of their duty, as subjects of a neutral sovereign, in the said contest, or in violation of the law of nations in that behalf, as for example, and more especially, by entering into the military service of either of the said contending parties as commissioned or non-commissioned offcers, or soldiers; or by serving as officers, sailors, or marines, on board any ship or vessel of war, or transport, of, or in the service of, either of the said contending parties; or by engaging to go, or going, to any place beyond the seas with intent to enlist or engage in any such service, or by procuring, or attempting to procure, within Her Majesty’s dominions, others to do so; or by fitting out, arming, or equipping any ship or vessel to be employed as a ship of war, or privateer, or transport, by either of the said contending parties;” (or by breach of blockade, or carriage of contraband,) “all persons so offending would incur and be liable to the several penalties and penal consequences,” by the (British Foreign-Enlistment) Act, “or by the law of nations, in that behalf imposed or denounced.”

If this Proclamation referred (as it did) to British law in some cases, and to the law of nations in other cases for its sanctions, the French and all other Proclamations of the like character also had reference, for the like purposes, to their own respective national laws, and to the law of nations Whatever surveillance may have been exercised by the French Government, according to the particular provisions of their own laws over the builders of the rams intended for the Confederates, at Nantes and at Bordeaux, the construction of those vessels was at all events not stopped; and one of them, the Stonewall, did eventually pass into the hands of the Confederates; nor was it by any power of the French Executive, or of the French law, that she was afterward intercepted before she had actually committed destructive acts against the shipping of the United States. The Georgia received her armament in French waters. Commodore Barron, “the head of the Confederate Navy Department in Europe,”¹ was established in Paris; a Frenchman residing in Paris, named Bravay, intervened in the Confederate interest as the ostensible purchaser of the rams, at Birkenhead, and claimed them against the seizure of the British Government, without any aid from French authority to Her Majesty’s Government in their resistance to that claim. These facts are not mentioned as implying any want of proper diligence on the part of the French Government; but to show, that even in that country, at a time when the Imperial Government exercised much larger powers of control over public and private liberty than could ever be possible in Great Britain, (or, as it is believed, in the United States,) the Executive either did not possess, or did not find it practicable to exercise with the preventive efficacy which the American Argument seems to deem necessary, any merely discretionary powers of interference.

VI.—On the Preventive Powers of the Law of the United States.

The comparison between the law of Great Britain and the law of the United States is more easy; because they have a very close historical and juridical relation to each other; and because both these nations exclude from their constitutional systems all forms of arbitrary power.22. On the comparison made by the United States between their own laws and British law, in order to prove a general want of due diligence against Great Britain.

What then are the preventive powers, found in the several Acts of Congress from time to time passed upon this subject in the United States, and which are admitted (at page 27 of the American Argument) to be the only preventive powers which the Executive Government of the United States of right possesses? How have those powers been used in practice? And with what degree of success and efficiency so far as regards the practical object of prevention? This inquiry is directly challenged in the Case, in the Appendix to the Counter Case, and in the Argument of the United States, for the purpose (as it would seem) of showing that if the law of Great Britain had been equal in efficiency to that of the United States, and had been enforced with an equal degree of diligence, the present causes of complaint might not have arisen. Great Britain has no reason to shrink from the test of diligence so tendered on the part of the United States; nor, in accepting it, is it just to impute to her Government an intention to recriminate, to introduce any irrelevant topics, or to call in question the general good faith of the Government of the United States, in the conduct of its relations with foreign Powers.

The only preventive powers material to this question, which were expressly or by implication conferred by the several Acts of Congress relating to this subject, are contained in (1) the third section of the Act of 1794, amended by the first section of the Act of 1817, and re-enacted, on the repeal of those Acts, by the third section of the Act of 1818; (2.) The seventh section of the Act of 1794, re-enacted by the eighth section of the Act of 1818; (3.) The second section of the Act of 1817, re-enacted by the tenth section of the Act of 1818; and, lastly, the third section of the Act of 1817, re-enacted by the eleventh section of the Act of 1818.23. Examination of the preventive powers of the American Government, under their Acts of Congress for the preservation of neutrality.

It will be sufficient to consider these different powers as they stand in the latest Act, by which the provisions of the two former were consolidated, and the former Acts themselves repealed.

(1.) Section 3 of the Act of 1818 made it penal for any person, within the limits of the United States, to “fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed, or knowingly to be concerned in the furnishing, fitting out, or arming, of any ship or vessel,” with the intent that such ship or vessel should be employed in any foreign belligerent service; and forfeited every such ship or vessel, with her tackle, &c.; one-half to any informer, and the other half to the use of the United States.

This clause agrees in substance with the seventh section of the British Foreign-Enlistment Act; except that, in the definition of the principal offenses under it, it always couples armament with equipment, which the British clause, using the word “or” (“equip, furnish, fit out, or arm,” &c.) instead of the word “and,” (“fit out and arm,” &c.,) throughout disjoins; and it omits to state by what officers, or in what manner, seizures under it are to be made, the British clause expressly empowering such seizures to be made by Her Majesty’s naval officers, or officers of the Customs or Excise, authorized to make seizures under the Customs and Navigation Acts. Inasmuch, however, as forfeiture necessarily implies the power of seizure, this clause (though the means of seizure are not here defined) is one of preventive efficacy. There is a further difference, which it seems right to mention, (as it has been mentioned by the Counsel of the United States,) viz, that half the benefit of forfeitures is given to informers.

(2.) The eighth section of the Act of 1818 is that which, in the present Argument, seems to be mainly relied on by the United States. “The American Act,” says the Argument, (p. 29,) “is preventive, calls for executive action; and places in the hands of the President of the United States the entire military and naval force of the Government, to be employed by him in his discretion, for the prevention of foreign enlistments in the United States.”

In reality, however, the powers given to the President by that section are dependent upon conditions, which, if an exactly similar clause had been contained in the British Foreign-Enlistment Act, would have made them inapplicable to the case of the equipment in, and departure from, British territory, of an unarmed ship of war intended for the Confederates; and as, in any case of resistance to lawful civil authority in the execution of the British laws of Customs and Navigation, or of the Foreign-Enlistment Act, the seizure which Her Majesty’s officers of her Customs and Navy are authorized to make may be supported by the use of adequate force, under the direction of those officers, at Her Majesty’s discretion, such an enactment would have had the effect rather of limiting than of enlarging the powers now possessed for that purpose by the British Crown.

This section authorizes the President, or such other person as he shall have empowered for that purpose, to employ such part of the land or naval forces of the United States, or of the militia thereof, as shall be judged necessary, in any one or more of the several cases there enumerated, viz:

(a.) In every case in which a vessel shall be fitted out and armed, or attempted “to be fitted out and armed” (i. e., against the prohibitions of the third section.)

(b.) “Or in which the force of any vessel of war, cruiser, or armed vessel, shall be increased or augmented, (i. e., against the prohibitions of the fifth section,) “by adding to the number of the guns of any such vessel which, at the time of her arrival in the waters of the United States, was in the service of a foreign Prince, &c., 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.”

(c.) “Or in which any military expedition or enterprise shall be begun to be set on foot contrary to the provisions and prohibitions of this Act;”¹ (i. e., against the prohibitions of the sixth section, which makes it penal for any person “within the territory or jurisdiction of the United States” to “begin or set on foot or provide the means for any military expedition or enterprise to he carried on from thence against the territory or dominions of any foreign State,” &c.)

(d.) “And in every case of the capture of a ship or vessel within the jurisdiction or protection of the United States, as before defined;” (i. e., by the seventh section, which enables District Courts of the United States to “take cognizance of complaints, by whomsoever instituted, in cases of capture made within the waters of the United States, or within a marine league of the coasts thereof.”)

(e.) “And in every case in which any process issuing out of any Court of the United States shall be disobeyed or resisted by any person or persons having the custody of any vessel of war, cruiser, or other armed vessel of any foreign Prince,” &c.

It will be seen that none of these cases except the first are material to the present inquiry, and that to constitute the first case the vessel must have been armed, or attempted to be armed, within the jurisdiction of the United States.

The purposes for which, in any of these cases, the President is authorized by the section to employ the land or naval forces or the militia of the United States are the following:

(a.) “For the purposes of detaining any such ship or vessel, with her prize or prizes, if any, in order to the execution of the prohibitions and penalties of this Act;” (a purpose applicable only to such ships or vessels as are comprehended within cases (a,) (b,) (d,) and (e).)

(b.) “And to the restoring the prize or prizes in cases in which restoration shall have been adjudged;” (a purpose applicable only to cases (d) and (e).)

(c.) “And also for the purpose of preventing the carrying on any such expedition or enterprise from the territories or jurisdiction of the United States against the territories or dominions of any foreign Prince,” &c.; (a purpose applicable only to case (c).)

It is thus seen that all these powers of prevention given by section 8 to the President are limited, and not arbitrary, and that they would none of them have been applicable to prevent the departure from the United States of an unarmed vessel, not intended to be armed within American jurisdiction, built and equipped within the United States, and dispatched from thence for the use and service of a belligerent.

Nor is there believed to be any trace in the annals of the law or history of the United States of their ever having been employed for such a purpose.

But, further, this eighth clause of the Act of Congress of 1818 is a re-enactment of the seventh clause of the Act of 1794, the purpose and effect of which was examined and authoritatively explained by the Supreme Court of the United States in the year 1818, in the case of “Gelston vs. Hoyt,” (reported in the fourth volume of Judge Curtis’s Reports, pages 211–231.) An action was brought against certain officers of the Customs of the United States for the wrongful seizure of a vessel, and they attempted (among other things) to justify themselves by pleading that in taking possession of and detaining the ship they had acted under the instructions of the President, given by virtue of the seventh section of the act of 1794. That defense was disallowed, on the grounds that the plea did not allege any forfeiture under the third section, nor justify the taking or detaining the ship for any supposed forfeiture, and did not show that the defendants belonged to the naval or military forces of the United States, or were employed in such capacity to take and detain the ship, in order to the execution of the prohibitions and penalties of the act.

Mr. Justice Story, in giving the judgment of the Court, observed:

The power thus intrusted to the President is of a very high and delicate nature, and manifestly intended to he exercised only when, by the ordinary process or exercise of civil authority, the purposes of the law cannot be effectuated. It is to be exerted on extraordinary occasions, and subject to that high responsibility which all executive acts necessarily involve. Whenever it is exerted, all persons who act in obedience to the executive instructions, in cases within the act, are completely justified in taking possession of and detaining the offending vessel, and are not responsible in damages for any injury which the party may suffer by reason of such proceeding. Surely it never could have been the intention of Congress that such power should be allowed as a shield to the seizing-officer, in cases where that seizure might be made by the ordinary civil means. One of the cases put in the section is where any process of the Courts of the United States is disobeyed and resisted; and this case abundantly shows that the authority of the President was not intended to he called into exercise, unless where military and naval forces were necessary to insure the execution of the law. In terms, the section is confined to the employment of military and naval forces; and there is neither public policy nor principle to justify an extension of the prerogative beyond the terms in which it is given. Congress might be perfectly willing to intrust the President with the power to take and detain whenever, in his opinion, the case was so flagrant that military or naval forces were necessary to enforce the laws, and yet, with great propriety, deny it where, from the circumstances of the case, the civil officers of the Government might, upon their private responsibility, without any danger to the public peace, completely execute them. It is certainly against the general theory of our institutions to create great discretionary powers by implication, and in the present instance we see nothing to justify it.

In how many instances it has been found necessary, or thought proper, to call into exercise this power of the President of the United States, it would not be material for the present purpose to inquire. It seems enough to observe, that in order to call this power into exercise at all in any case of a vessel equipped or adapted for war within the United States, there must be a state of facts established or deemed capable of being proved in due course of law, constituting an infringement of the prohibitory and penal clauses of the Act of 1818, and producing a forfeiture of the vessel by reason of that infringement; and that, in any corresponding case under the British Foreign-Enlistment Act of 1819, the Queen of Great Britain possessed similar and not less effective powers, to fortify the ordinary administration of the law, in case of need, by the use of extraordinary force, as was exemplified by the employment of a force under the command of Captain Inglefield, at Birkenhead, in 1863, to prevent the forcible removal of the iron-clad rams from the Mersey.

3. The tenth section of the Act of Congress of 1818 requires security to be given by “the owners or consignees of every armed ship or vessel sailing out of the ports of the United States, belonging wholly or in part to citizens thereof,” against the employment of such ship or vessel “by such owners, to cruise or commit hostilities against any foreign Prince,” &c. This clause is inapplicable to any ship not actually armed within the jurisdiction of the United States; and, even as to any vessel so armed, no security is required, unless it is owned by citizens of the United States; nor, even as to a ship so armed and so owned, is any security required against her employment to cruise or commit hostilities by any foreign Power, to whom it may be transferred after leaving the waters of the United States.

4. The eleventh section of the same Act authorizes and requires the collectors of United States Customs “to detain any vessel manifestly built for warlike purposes, and about to depart from the United States, of which the cargo shall principally consist of arms and munitions of war, when the number of men shipped on board, or other circumstances, shall render it probable that such vessel is intended to be employed by the owner or owners to cruise or commit hostilities upon the subjects, citizens, or property, of any foreign State, &c., until the decision of the President be had thereon, or until the owner or owners shall give such bond and security as is required of the owners of armed ships by the preceding section.”

The power thus given to detain ships “manifestly built for warlike purposes,” when circumstances “render it probable that they are” intended to be employed “to cruise or commit hostilities upon the subjects, &c., of a foreign State,” &c., is confined to the single case, in which such ships have a cargo, principally consisting of arms and munitions of war; and even in that case it ceases, upon security being given, in the same manner as under the tenth section, i. e., security against the employment of the ship by her then existing owners to cruise or commit hostilities against any foreign State, leaving her perfectly free to he so employed by any foreign owner to whom she may afterwards be transferred.

It is honorable to the candor of Mr. Bemis, an American writer, not partial certainly to Great Britain, (some of whose controversial writings have been brought before the Arbitrators as part of the evidence of the United States, in vol. iv of their Appendix, pp. 12–32 and 37–46,) that he pointed out, in a work published in 1866, from which extracts will be found in Annex (B) to the British Counter Case, (pp. 149, 150,) the inferiority (not superiority) tor preventive as well as for other purposes of the Act of Congress of 1818 (the only law then and now in force in the United States for the maintenance of their neutrality) as compared with the British Foreign-Enlistment Act of 1819. Nor was there any reason to complain of the fairness of Mr. Seward, when (disregarding, as in his view practically unimportant, all those points of detail in respect of which these two Acts differed from each other) he described the laws made for this purpose in the United States on the 9th April, 1863, as “in all respects the same as those of Great Britain,” and on the 11th of July, 1863, as “exactly similar.” (See Annex (A) to the British Argument or Summary, page 40.) But it is certainly astonishing, after these acknowledgments, (and in view of the facts above stated,) now to find these differences between the British and American Statutes insisted upon, in the Argument of the United States, as amounting to nothing short of the whole difference between a merely penal Statute and a law intended, and effective, for the purpose of prevention; and as constituting, on that account, a sufficient ground for inferring, a priori, a general want of due diligence on the part of Great Britain, with respect to all the matters covered by the present controversy.24 Testimonies of Mr. Bemis and Mr. Seward on this subject.

Some reference must here be made to an argument, derived by the Counsel of the United States from the fact that a considerble change and amendment of the British law has since been made, and that new preventive powers (of a kind not found, either in the Act of Congress of 1818 or in the British Act of 1819) have been conferred upon the Executive Government of Great Britain, by a recent Statute passed by the British Legislature in 1870. The Legislature of the United States has not yet thought it necessary or expedient to introduce any similar or corresponding provisions or powers into the law of that country; it cannot, therefore, be supposed that the Government of the United States deems such provisions or powers to be indispensable to enable a constitutional Government, the Executive of which is bound to act according to law, to fulfill, with due diligence, its international obligations. No one can seriously contend that because, after experience gained of the working of a particular law or administrative machinery of this nature, certain points may be found, on a deliberate examination, in which it appears capable of being improved, this is a proof that it was not, before these improvements, reasonably adequate for the fulfillment of any international obligations to which it may have been meant to be subservient. In all improvements of this kind, it is the object of wise legislation not to limit itself by, but in many respects to go beyond, the line of antecedent obligation; the domestic policy and security of the State which makes the law, and the reasonable wishes, as well as the strict rights of foreign Powers, are proper motives and elements in such legislation. No nation would ever voluntarily make such improvements in its laws, if it were supposed thereby to admit that it had previously failed to make such due provision for the performance of its public duties as other Powers might be entitled to require.25. Argument of the United States from the British Foreign-Enlistment Act of 1870.

With respect to the light which is thrown upon these questions by American history, it is, in the first place, to be observed that the violations of neutrality which the Government of President Washington took measures to prevent, did not include the mere building or sale of vessels adapted for war, for or to a belligerent, within the territory of the United States, or the sending abroad of such vessels. They consisted (in the words of Jefferson) in “the practice of commissioning, equipping, or manning vessels in ports of the United States to cruise on any of the belligerent parties.”¹26. Illustrations of the doctrine of due diligence, from the history of the United States.

Next it will be seen from that history that the Government of the United States, having made (as it considered) just and reasonable provision by laws for the fulfillment of its international obligations, always, both before and after 1817–18, referred to those laws, and to the evidence and procedure required by them, as the proper measure of the diligence which it ought to use when foreign Governments complained that ships had been or were being fitted out or dispatched from ports of the United States for the war service of their enemies or revolted subjects. Of the truth of this statement, examples will be found in the letters of Mr. Mallory to Don Antonio Villalobos, (16 December, 1816,) Mr. Rush to Don Luis de Onis, (March 28, 1817,) Mr. Fisk to Mr. Stoughton, (September 17, 1817,) Mr. Adams to Don Luis de Onis, (August 24, 1818,) Mr. Adams to the Chevalier de Serra, (March 14, 1818; October 23, 1818; September 30, 1820; and April 30, 1822;) all of which are in the third volume of the Appendix to the British Case, (pages 100, 106, 120, 129, 150, 157, 158, 160;) also in the letters of District Attorney Glenn to the Spanish Consul Chacon, (September 4, 1816,) and to Secretary Monroe, (February 25, 1817,) and of Secretary Rush to Mr. Mallory and Mr. McCulloch, (March 28, 1817,) which are among the documents, accompanying the Counter-Case of the United States (Part II, pages 40, 53–56, 61, and 62;) and in those of Attorney-General Hoar to District Attorney Smith, (March 18, 1869,) and to United States Marshal Barlow, (May 10, 1869,) among the documents accompanying the Counter Case of the United States, (Part III, pages 743 and 745–747;) and in the Circular of Attorney-General Hoar to the District Attorneys, (March 23, 1869,) and in the letter of District Attorney Pierrepont to Attorney-General Hoar, (May 17, 1869;) which are in the “Cuban Correspondence, 1866–1871,” accompanying the Counter Case of the United States, (pages 29 and 59.)

VII.—Objections of the United States to the Administrative System of Great Britain, and to the evidence required for the enforcement of the Law.

It appears, however, to be suggested that it was necessary, for the exercise of due diligence on the part of Her Majesty’s Government, that they should have organized some system of espionage, or other extraordinary means of detecting and proving the illegal equipment of vessels, during the late civil war; that it was inconsistent with due diligence to treat evidence of illegal acts or designs, producible in a British Court of Justice, as generally necessary to constitute a “reasonable ground for believing,” that an illegal equipment, which ought to be prevented, had taken place or was being attempted; and that in all such cases the officers of the British Government ought to have obtained for themselves the proper evidence, without asking for assistance from the Ministers, Consuls, or other Agents of the United States.27. Arguments of the United States from suggested defects in the administrative machinery of British law, and from the evidence required by the British Government.

We present now [says the Argument of the United States, pages 157 to 160] to the notice of the Arbitrators, certain general facts which inculpate Great Britain for failure to fulfill its obligations in the premises, as assigned by the Treaty.

1. The absolute omission by Great Britain to organize or set on foot any scheme or system of measures, by which the Government should be put and kept in possession of information concerning the efforts and proceedings which the interest of the rebel belligerents, and the co-operating zeal or cupidity of its own subjects, would, and did, plan and carry out, in violation of its neutrality, is conspicuous from the outset to the close of the transactions now under review. All the observations in answer to this charge, made in contemporary correspondence or in the British Case or Counter Case, necessarily admit its truth, and oppose the imputation of want of “due diligence” on this score upon the simple ground that the obligations of the Government did not require it, and that it was an unacceptable office, both to Government and people.

Closely connected with this omission was the neglect to provide any systematic or general official means of immediate action in the various ports or ship-yards of the kingdom, in arrest of the preparation or dispatch of vessels, threatened or probable, until a deliberate inspection should seasonably determine whether the hand of the Government should be laid upon the enterprise, and its project broken up and its projectors punished. The fact of this neglect is indisputable; but it is denied that the use of “due diligence to prevent,” involved the obligation of any such means of prevention.

We cannot fail to note the entire absence from the proofs presented to the Tribunal of any evidence exhibiting any desire or effort of the British Government to impress upon its staff of officers or its magistracy, of whatever grade, and of general or local jurisdiction, by proclamation, by circular letters, or by special instructions, any duty of vigilance to detect, or promptitude to declare, of activity to discourage, the illegal outfit or dispatch of vessels in violation of international duty towards the United States.

It is not less apparent that Great Britain was without any prosecuting officers to invite or to act upon information which might support legal proceedings to punish, and, by the terror thus inspired, to prevent, the infractions of law which tended to the violation of its international duty to the United States. It was equally without any system of executive officers specially charged with the execution of process or mandates of courts or magistrates to arrest the dispatch or escape of suspected or incriminated vessels, and experienced in the detective capacity that could discover and appreciate the evidence open to personal observation, if intrusted with this executive duty.

And in another place, (page 161,) they added that—

The Arbitrators will observe the wide difference from these views and conduct of Great Britain in the estimate which the United States have put upon their duty in these respects, of spontaneous, organized, and permanent vigilance and activity, and in the methods and efficacy of its performance. On all the occasions upon which this duty has been called into exercise, the Government of the United States has enjoined the spontaneous and persistent activity of the corps of District Attorneys, Marshals, Collectors, and the whole array of subordinates, in the duties of observation, detection, information, detention, prosecution, and prevention.

They ask, also, (page 85,) for the assent of the Arbitrators to the views of Mr. Dudley, the United States Consul at Liverpool, when (writing to Mr. Seward with respect to the request of the British Government for evidence as to the destination of the Alabama, before such evidence had been supplied) he said:

I do not think the British Government are treating us properly in this matter. They are not dealing with us as one friendly nation ought to deal with another. When I, as the Agent of my Government, tell them from evidence submitted to me that I have no doubt about her character, they ought to accept this until the parties who are building her, and who have it in their power to show if her destination and purpose are legitimate and honest, do so. * * * The burden of proof ought not to be thrown upon us. In a hostile community like this it is very difficult to get information at any time upon these matters. And if names are to be given it would render it almost impossible. The Government ought to investigate it and call upon us for proof.

If the line of argument contained in the two first of the foregoing extracts is used for the purpose of inducing the Arbitrators to hold the British Government responsible for matters which were never actually brought to their knowledge, so as to make their prevention possible, (as in the case of the Georgia and the Shenandoah, and of the vessels which took out armaments to those snips, and to the Alabama and the Florida respectively, from Great Britain,) it appears to lose sight of the fact that, according to the express words of the first Rule, and the evident meaning of all the three Rules of the sixth article of the Treaty of Washington, the obligation to “use diligence to prevent” is consequent upon, and not antecedent to, the existence of “reasonable ground for believing,” that in the particular case something which (if known) ought to be prevented, is intended to be done. If that reasonable ground for belief was in any particular case absent, there was no such obligation; and to invite the judgment of the Arbitrators upon some supposed defects in the administrative system of Great Britain, with regard to the discovery of offenses against the Foreign-Enlistment Act, or the laws of Customs and Navigation, in order to found thereon a conclusion that, under some different system of administration, facts which never actually came to the knowledge of the British Government, and of which they had no information, either from the Agents of the United States or from any other quarter, might possibly have been discovered in time for prevention, is, practically, to ask for the substitution of different Rules for those of the Treaty, and to impose retrospectively upon Great Britain obligations, which neither usage nor international law has ever hitherto recognized as incumbent upon any nation.28. Inconsistency of the rules of the treaty with the requirement of diligence to prevent, when there were not reasonable grounds of belief.

As, however, it is conceivable that this line of argument may be thought to deserve rather more attention, when it comes to be applied to cases in which information, unaccompanied by legal evidence of any actual or intended violation of the law, was given to the British Government before the departure of a vessel alleged to have been illegally equipped, it seems expedient not to pass it by without refutation.29. The British Government took active and spontaneous measures to acquire all proper information, and to prevent breaches of the law.

It is a complete error to suppose that the British Government did, in fact, ever rely merely on such information and evidence of actual or intended violations of the Foreign-Enlistment Act as might reach them from the Ministers, Consuls, or Agents of the United States; or that they did not recognize and fulfill the duty of endeavoring, by the independent activity and vigilance of their own officers, and by following up all such information as reached them from any other quarters by proper inquiries made through those officers, to discover and prevent any intended breaches of the law.

The warnings of the Proclamation of Neutrality, issued at the commencement of the war, announced to all the Queen’s subjects Her Majesty’s determination to enforce the Foreign-Enlistment Act against all offenders, to the best of her power, notwithstanding the statements, (already cited at page 160 of the American Argument,) it is the fact that there did exist “systematic and general means of action,” adequate in all respects for the due and bona-fide enforcement of the law, in all the ports and places where ship-yards existed, throughout the British Empire. It is also the fact, notwithstanding what is there said, that special instructions were issued to the Custom-house authorities of the several British ports, where ships of war might be constructed, and also by the Secretary of State for the Home Department to the various authorities with whom he was in communication, to “endeavor to discover and obtain legal evidence of any violation of the Foreign-Enlistment Act, with a view to the strict enforcement of that Statute, wherever it could really be shown to have been infringed.” These instructions were repeated in or before April, 1863; and Earl Russell, when communicating that fact to Mr. Adams, (2d April, 1863, Appendix to Case of United States, vol. i, page 590,) stated that “Her Majesty’s Government would be obliged to him to communicate to them or to the local authorities at the several ports any evidence of illegal acts which might from time to time become known to him.”

“Of these facts,” says the American Argument, “no evidence is found in the proofs submitted to the Tribunal.” Is not Earl Russell’s statement of the fact to Mr. Adams evidence? Is his veracity, in a matter which was necessarily within his knowledge, disputed? The British Government have not so dealt with statements made, as to matters within their knowledge, by men of honor in the public service of the United States.

But this is not all. There are facts which speak for themselves.

In the case of the Pampero (which was afterward seized and prosecuted to condemnation) and of another suspected vessel at Glasgow, information was collected by the Commissioners of Customs, and communicated to Mr. Adams by Earl Russell in a letter of the 21st of March, 1863, which was transmitted by Mr. Adams to Mr. Seward in another letter dated March 27, 1863, in which he (Mr. Adams) used these words: “It is proper to mention that the investigation appears to have been initiated by his Lordship, upon information not furnished from this Legation; and that his communication to me was perfectly spontaneous.” (Appendix to the Case of the United States, vol. ii, page 203; and see British Appendix, vol. ii, page 474, &c.)

The circumstances relative to the Georgiana, after her arrival at Nassau, were first brought to the notice of Her Majesty’s Government by information (derived from a New York newspaper) which they received from Mr. Archibald, the British Consul at New York, in April, 1863. This information was followed up by careful and spontaneous inquiries as to this ship and as to another vessel, called the South Carolina, said to be arming in the Clyde, neither of which proved to be intended for war. (British Appendix, vol. ii, page 158.)

In the case of the Amphion, respecting which a representation was first made by Mr. Adams on the 18th of March, 1864, inquiries had been set on foot by Her Majesty’s Government as early as the preceding 13th of January. In the case of the Hawk, the first representation made by Mr. Adams was dated 18th of April, 1864; but inquiries had been previously made by the British Government, upon information received by them on the 2d of April from the Commissioners of Customs. In the case of the Ajax, as to which no representation was made before she sailed by the American Minister or Consul, careful inquiry had been made by the Customs Department in Ireland, in January, 1865; their attention having been called to the ship by the Coast-Guard officers. The action of the British Government to prevent the Anglo-Chinese flotilla, early in 1864, (as to which no obligation, municipal or international, was incumbent upon them,) from falling into the hands of the Confederates, was wholly spontaneous and unsolicited.

Furthermore: In every case in which information, however unsupported by evidence, as to any suspected vessel, was communicated to Her Majesty’s Government by Mr. Adams, or otherwise, a strict watch was directed to be kept on the vessel, and special inquiries were ordered to be made by the proper persons. The results of these inquiries were reported, in every case to Mr. Adams by Earl Russell. In a great majority of instances, even when Mr. Dudley or Mr. Morse (the United States Consul) had stated and reiterated their suspicions and belief, with the utmost confidence, and had supported it by hearsay statements, or hearsay depositions, in which mention was often made of the connection of Captain Bullock, and of the firms of Fraser, Trenholm & Co., Fawcett, Preston & Co., and W. C. Miller & Sons, or one or more of them, or other known or suspected Confederate agents, with the vessels in question, the belief of the local authorities, that the law had not been, and was not about to be, infringed, proved to be well founded. In the cases of the Florida and the Alabama, inquiries were made by the Custom-house officers, among other persons, of the builders of these ships, and other information was obtained by those officers, which was duly reported to Her Majesty’s Government. Earl Russell made inquiries concerning the Florida of the Italian Government; and the zeal and activity of the proceedings of Commanders McKillop and Hinckley, at Nassau, with respect to that ship, will not be called in question. It was by means of a very difficult investigation, conducted by Her Majesty’s Government, through their own Agents in France, Egypt, and elsewhere, that the evidence applicable to the rams at Birkenhead was brought up to the point necessary to establish a “reasonable ground for belief” that those rams were really intended for the Confederate service.30. The British Government followed up all information received, by the proper inquiries.

Nor is there any trace of proof, in any part of the voluminous Appendices to the Cases and Counter Cases on either side, that the various officers of the Customs and other civil or naval authorities to whom the duty of taking proper measures for the discovery and prevention of offenses against the Enlistment Act was intrusted, neglected any proper means, which they could and ought to have used, to obtain information or evidence. It was not, indeed, their practice to search out and interrogate all persons who might be criminally implicated by any accusation; because such persons are not obliged, by British law, or according to the general principles of justice, to answer any questions tending to criminate themselves; and also because the general experience of those accustomed to the administration of the law is, that statements voluntarily made by such persons, if really guilty, are not likely to be of assistance in the discovery of truth. Nor was any general system of espionage established; though, on what were considered proper occasions, (see British Appendix, vol. n, page 169,) the agency of detective officers was employed by the municipal authorities for these purposes. Such a general system would be contrary to the genius and spirit of British institutions; it cannot be pretended that, to establish such a system, was part of the “diligence due” by any free country to any foreign nation. But, speaking generally, everything was done which, in the usual and proper course of the civil and political administration of affairs by the Executive Government of Great Britain, ought to have been done; and, if these means were not sufficient, in all cases, to discover and prevent (though they did prevent in most cases) the violation of the law, the experience of the British Government, in this respect, was only the ordinary experience of all Governments, with respect to the occasional success and impunity of every species of crime.

VIII.—Results of the Administrative System, and of the practice with respect to evidence of the United States in similar cases.

In a question of due diligence between Great Britain and the United States, it cannot, with any show of justice or reason, be considered irrelevant, that the general system and principles, with respect to evidence and otherwise, on which the British Government acted throughout these transactions, were substantially the same as those which have been usually and in good faith acted upon, in similar cases, by the Executive Authorities of the United States. A neutral Government, though it ought spontaneously to use all proper means of discovering and preventing violations of law, which are really within its power, may, in many cases, not have the same means of knowledge which the agents of a foreign Government (to which those illegal acts would be dangerous) may happen to possess: and, when its information proceeds from those agents, it is both natural and reasonable that they should be requested to furnish evidence in support of their statements. In transactions of this kind (as Mr. Dudley stated to Mr. Seward in his first letter about the Florida, February 4, 1862, with respect to that vessel) “there is much secrecy observed;” and, happens, (as in ordinary cases of crime,) the preventive powers of the law cannot be called into activity, without some timely information; and the persons who give that information are usually able, and may properly be requested, to produce some evidence in its support, if such evidence is really forthcoming.31. Necessity and propriety of seeking evidence from those who give information.

Mr. Jefferson, in his letter to Mr. Hammond, dated the 5th September, 1793, (annexed to the Treaty between Great Britain and the United States of the 19th November, 1794,) after promising to use all the means in the power of his Government to restore British prizes captured by vessels “fitted out, armed, and equipped in the ports of the United States,” and brought into any of those ports by their captors after the 5th June, 1793, and acknowledging the obligation to make compensation for such prizes, if such means for their restitution should not be used, added the following just and reasonable remarks:32. Mr. Jefferson’s letter of September 5, 1793.

Instructions are given to the Governors of the different States to use all the means in their power for restoring prizes of this last description found within their ports. Though they will, of course, take measures to he informed of them, and the General Government has given them the aid of the Custom-house officers for this purpose, yet you will be sensible of the importance of multiplying the channels of this information, as far as shall depend on yourself or any person under your direction, in order that the Governors may use the means in their power for making restitution. Without knowledge of the capture, they cannot restore it. It will always be best to give notice to them directly; but any information which you shall be pleased to send to me also, at any time, shall be forwarded to them as quickly as distance will permit.¹

When the questions of compensation, claimed by the owners of captured British ships, which had not been restored according to this letter, came for decision before the Commissioners under the Treaty of 1794, no such claim was allowed, except when the claimant had substantiated his legal right to have the prize restored by a regular judicial proceeding, properly conducted before the proper Court of the United States; which, of course, threw upon him, in all such cases, the burden of proving, by legal evidence, the illegal outfit and armament, within the jurisdiction of the United States, of the capturing vessel.²33. The onus imposed upon British claimants against the United States by the Commissioners of Claims under the treaty of 1794.

Extracts are here subjoined from some of the letters of the various authorities of the United States (to which reference has been already made) during the wars between Spain and Portugal, and their revolted Colonies in 1816–1820; and, more recently, at the time of certain designs against Cuba, in 1869. These will be found to throw some light upon the functions and powers of the District Attorneys and Marshals of the United States, and on the practical rules by which the exercise of their functions and powers has always been governed.34. Uniform reference of the Executive authorities of the United States in similar cases to legal procedure, and the necessity for legal evidence.

On the 4th September, 1816, Mr. Glenn (District Attorney for Maryland) wrote to the Spanish Consul,(Chacon,) in answer to certain representations made by him:

I must beg leave to suggest that my powers are merely legal, and not political. I have already the power, when I am officially informed, in a legal manner, of any violation of the laws of the United States, to institute a prosecution against the offenders, and conduct the same to a final issue; and I hope I shall always be ready and willing to go thus far on all proper occasions. If an armament be fitting out within the district of Maryland for the purpose of cruising against the subjects of the King of Spain, it is a breach of our laws, and the persons concerned therein are liable to punishment; but before I can take any legal steps in the affair, the facts of the case must he supported by affidavit taken before some Judge or Justice of the Peace, and when that is done, I will, without delay, proceed to call upon the offenders to answer for a breach of our laws. If therefore, you will be pleased to furnish me with the names of any witnesses who can make out the case which you have stated, I will at once have them summoned, if within the reach of the process of our Judges or Justices, and attend to taking their depositions, or, if you have it in your power to bring within this district any persons who can testify on the cases referred to, I will be prepared to receive the statements on oath as the foundation for a judicial inquiry into the conduct of the offenders. I shall here take occasion to say that I cannot proceed in the cases you have mentioned upon the mere suggestion of any person, unless that suggestion be accompanied by an affidavit. (Documents accompanying the Counter Case of the United States, part ii, pages 39, 40.)

On the 25th February, 1817, the same District Attorney wrote to Mr. Monroe, Secretary of State:

You are well aware I cannot proceed to arrest persons and proceed under the laws of our country, for a breach of those laws, upon a mere suggestion alone; but whenever a suggestion shall be accompanied by anything like proof, I will take great pleasure in prosecuting the offenders to punishment, and their property to condemnation, in all proper cases. (Ibid., pages 55, 56.)

On the 28th March, 1817, Mr. Rush (Acting Secretary of State) wrote to Mr. Mallory, Collector of Customs at Norfolk, directing him to make inquiry into the cases of two armed vessels, the Independence of the South and the Altravida, which had then lately arrived at Norfolk from voyages, in the course of which they had cruised against, and made captures of, vessels or property belonging to the subjects of the King of Spain.

If [said Mr. Rush] there be any proof of their having committed, or of their intending to commit, an infraction of any of the laws or Treaties of the United States, you will cause prosecutions, subject to the advice of the Attorney of the United States, to be instituted against all parties concerned, or such other legal steps taken as events may make necessary and justice require.

And on the same day, Mr. Rush also wrote to Mr. MacCulloch, Collector of Customs at Baltimore, directing inquiries to be made as to another vessel called the Congress:

If [he said] there be any sufficient proof that this vessel either has committed, or that she intends to commit, a breach of any of the laws or Treaties of the United States, you will advise the District Attorney, and cause prosecutions to be forthwith instituted against all parties concerned, and such other steps taken, whether with a view to prevent or punish offenses, as justice requires, and the laws will sanction.

On the 11th of April, 1817, Mr. Collector Mallory, having been requested by Don Antonio Villalobos to detain the Indepencia del Sud and the Altravida, and certain goods (in fact, prize goods) landed from that vessel, for alleged violation of the Act of Congress of 1794, answered by the request—

That I may have the aid of every light to guide me which facts can afford, and as the allegations made by you, in an official form, must be presumed to be bottomed on positive facts which have come to your knowledge, you will have the goodness, I trust, to furnish me with evidence of their existence in your possession.

The Spaniard replied, (12 April, 1817:)

With regard to the evidence you require, I will not hesitate to say that, as the facts I have stated are matter of public notoriety, known to everybody, and I had no reason to suppose you were ignorant of them, I did not deem it incumbent upon me to add any proof to the simple narration of them; and I was confident that, by going on to point out to you the stipulations and laws which are infringed in consequence of these facts, you would think yourself authorized to interfere in the manner requested.

He then mentioned several circumstances, justifying (as he thought) a strong presumption of illegality against those vessels, as “known facts,” and added:

If these public facts, falling within the knowledge of every individual, require more proof than the public notoriety of them, I must request to be informed as to the nature of that proof, and also whether you are not warranted to act upon just grounds of suspicion, without that positive evidence which is only necessary before a Court of Justice.

Mr. Mallory rejoined, (14 April, 1817:)

From the view I have taken of the facts, as now stated by you, which it is to be presumed are to be regarded as specifications under the more general charges set forth in your letter of the 10th instant, I must really confess I do not at present see grounds sufficient to justify the steps you require me to take against the armed vessels now in this port, and the merchandise which has been permitted to be landed from them and deposited in the public store.

He then observed that, if the facts alleged as to the original equipment of the Independencia were to be taken as true, they did not clearly or unequivocally prove that her original equipment in, or dispatch from, the United States was unlawful; and, with respect to a subsequent alleged enlistment of men in the port of Norfolk, he stated that he was engaged in inquiries, in order to be satisfied upon that point before the vessel was permitted to sail, and to be governed by the result, “although,” he said, “it does not appear to be perfectly certain that such an augmentation of their force is interdicted by the Act of Congress of the 3d of March last, which, being a law highly penal in its nature, will admit of no latitude of construction. (British Appendix, vol. iii, pages 112–114.)

This correspondence has the more interest, as relating to the case, in which the legality of the dispatch of the Independencia (fully armed and equipped) from an American port to Buenos Ayres, for sale there to the belligerent Government of that revolted colony, and the illegality of her subsequent augmentation of force, became the subject of decision by Mr. Justice Story in the well-known prize-suit of the Santissima Trinidad.

On the 16th September, 1817, the Spanish Consul, Mr. Stoughton, wrote to Mr. Fisk, (District Attorney for New York,) stating a case of illegal enlistment of men, then alleged to be in progress on board a Venezuela privateer schooner called the Lively, or the Americano Libre:

Now, [he said,] as there must be provisions in the laws and Treaties of the United States vesting an authority in some of its officers to prevent the equipment of vessels and the enlistment of men in the United States, I make this application to you, most urgently requesting you to take whatever measures may be necessary immediately, in order to prevent the departure of the above vessel, at least until she shall give bonds that she will not commit hostilities against Spanish subjects. The vessel, it is said, will sail to-morrow morning. Indeed, if an inquiry were instituted, I am induced to believe the above brig would be found to be a pirate.

In support of this application, two depositions of persons, who stated that attempts had been made to induce them to enlist on board the vessel in question, were sent on that and the following day. Mr. District Attorney Fisk replied, on the 17th September, 1817:

I have duly received your notes of yesterday evening and of this day, and have referred to the statutes providing for the punishment of the offenses stated. It is not a case, from the evidence mentioned, that would justify the Collector in detaining the vessel. The aggression is to be punished in the ordinary mode of prosecuting those who are guilty of misdemeanors. Oath is to be made of the facts by the complainant, who enters into a recognizance to appear and prosecute the offenders before any process can issue. This oath being made and recognizance taken, the Judge of the Circuit Court will issue a warrant to apprehend the accused, and bring them before him, to be further dealt with according to law. When apprehended, it is the province of the Attorney of the United States to conduct the prosecution to judgment. I have no authority to administer an oath, or to issue a warrant, nor have I the power to issue any process to arrest and detain the vessel in question, unless by the direction of an Executive officer of the United States. * * * By adverting to the statutes, it will be seen that the vessel is not liable to seizure for the act of any person enlisting himself to go on board, or for hiring or retaining another person to enlist: the punishment is personal to the offenders. * * * It is impracticable for me, or for any other officer of the United States, to take any legal measures against aggressors, upon the indefinite statement of certain persons being concerned in an illegal transaction. (British Appendix, vol. iii,. pp. 119, 120.)

This precedent will, it is trusted, be borne in mind whenever the Arbitrators may have occasion to consider the questions connected with the enlistment of certain men on board the Shenandoah on the night of the departure of that vessel from Melbourne in 1864.

On 30th September, 1820, Mr. Secretary Adams wrote thus to the Portuguese Minister, the Chevalier de Serra:

The judicial power of the United States is, by their Constitution, vested in their Supreme Court and in Tribunals subordinate to the same. The Judges of these Tribunals are amenable to the country by impeachment, and if any Portuguese subject has suffered by the act of any citizen of the United States within their jurisdiction, it is before these Tribunals that the remedy is to be sought and obtained. For any acts of citizens of the United States, committed out of their jurisdiction and beyond their control, the Government of the United States is not responsible. * * *

The Government of the United States have neither countenanced nor permitted any violation of their 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 that war. They have repressed every intended violation of them which has been brought before their Courts, and substantiated by testimony, conformable to principles recognized by all Tribunals of a similar jurisdiction. (British Appendix, vol. iii, pp. 157, 158.)

On the 14th May, 1869, Mr. Hoar, Attorney-General of the United States, thus instructed Mr. Smith, District Attorney for Philadelphia:

Whenever complaint is made against any vessel on trustworthy evidence sufficient to establish before a Court of Justice probable cause to believe that such vessel is forfeitable for a violation of the Neutrality Laws, you are instructed to file a libel, and arrest the vessel. (Documents accompanying the Counter Case of the United States, Part iii, p. 743.)

On the 17th May, 1869, Mr. Pierrepoint, District Attorney of New York, wrote to Mr. Attorney-General Hoar with respect to certain vessels called the Memphis and Santiago, accused of a hostile destination against Cuba:

There is no evidence, as yet, on which to detain them. I would suggest that if the Spanish Minister would instruct the Spanish Consul here to take some pains and collect some evidence relating to these matters, and bring it to my notice, I shall act with the greatest promptness.

On the 11th May, 1869, Attorney-General Hoar, forwarding this letter to Mr. Secretary Fish, said:

The several District Attorneys are instructed that, whenever sufficient evidence is made known to them to establish before a Court of Justice probable cause to believe that any vessel is forfeitable for a violation of the neutrality laws, they are to file a libel and arrest the vessel. (Cuban Correspondence, 1866–’71, presented with the American Counter Case, pp. 58, 59.)

On the same day, Mr. Attorney-General Hoar sent, as general instructions to the United States Marshals, a copy of a letter addressed on the 20th of May to the Marshal for the Southern District of New York, which contained the following passage:

It is not deemed best, at present, to authorize or require you to employ detectives for the special purpose of discovering violations of the provisions of this Act, (the Act of Congress of 1818;) but you and your deputies are expected to receive all information that may be offered, and to be attentive to all matters of suspicion that may come to your knowledge; and, in cases where your action is required, to be vigilant, prompt, and efficient. I will thank you to communicate to me, from time to time, any information that you may deem trustworthy and important.

On the 28th December, 1870, Mr. Fish, Secretary of State, wrote thus to Mr. Roberts, the Spanish Minister:

The undersigned takes the liberty to call the attention of Mr. Roberts to the fact that a District Attorney of the United States is an officer, whose duties are regulated by law, and who, in the absence of executive warrant, has no right to detain the vessels of American citizens without legal proofs, founded not upon surmises, or upon the antecedent character of a vessel, or upon the belief or conviction of a Consul, but upon proof submitted according to the forms required by law. (British Counter Case, page 46.)

These extracts are conceived to show that the principles and rules of practice of the Executive authorities of the United States, as to the evidence necessary to constitute “reasonable ground for belief,” that any illegal equipment has been made or is being attempted within their jurisdiction, and to call for “diligence” in the use of the preventive powers of their law, have always been, and still are, essentially the same with those on which the Government of Great Britain acted during the transactions which are the subject of the present inquiry.

After these instances of the practice of the United States in similar cases, it seems hardly necessary to recur to the extraordinary suggestion of Mr. Dudley, adopted in the American Argument, (page 44,) that whenever the American Consul at Liverpool told the British authorities that “he had no doubt” about the character of a particular vessel, they ought to have accepted this as sufficient till the contrary was shown, and not to have thrown the burden of proof upon the persons giving the information; that “the Government ought to investigate it, and not call upon us for proof.” It was indeed quite right and proper that the officers of the British Government should investigate every case of which they were so informed for themselves, as well as they were able; and this is what they actually did on all occasions. But the British authorities at Liverpool had too frequent experience of the error and fallacy of Mr. Dudley’s conclusions, drawn from the association with particular vessels of firms or persons known or believed to be in the Confederate interest, to make it possible for them, as reasonable men, to act upon Mr. Dudley’s charges as sufficient to throw the burden of proof upon the parties accused, even if such a principle had not been opposed both to British and to American law. In August, 1861, the American Consul at Liverpool, through Mr. Adams, denounced the Bermuda as an “armed steamer,” which was “believed to be about to be dispatched with a view of making war against the people of the United States,” and which was “ostensibly owned by Fraser, Trenholm & Co.” (British Appendix, vol. ii, page 133.) Mr. Adams, writing to Mr. Seward on the 30th August, 1861, said: “No stronger case is likely to be made out against any parties than this. The activity of our Consuls, Messrs. Wilding and Davy, furnished me with very exact information of all the circumstances attending the equipment of this vessel, and yet Her Majesty’s Government, on being apprised of it, disclaimed all power to interfere.” (American Appendix, vol. i, page 518.) The Bermuda, nevertheless, turned out to be an ordinary blockade-runner. In March and April, 1863, a ship called the Phantom, building at Liverpool by W. Miller & Son, for Fraser, Trenholm & Co., and supplied with engines by Fawcett, Preston & Co., at the launch or trial trip, of which Captain Bullock, Mr. Tessier, and Mr. R. Hamilton, &c., were present; and another ship called the Southerner, building at Stockton for Fraser, Trenholm & Co., and meant to be commanded by Captain Butcher, were in like manner denounced. Affidavits of the connection of these firms and persons with the ships were furnished; and the accusations were pressed with great pertinacity, even after Mr. Squarey, the legal adviser of Mr. Dudley, at Liverpool, had admitted that (as to the Phantom) there was no case. About the Southerner, Mr. Dudley affirmed, from the beginning, with the utmost positiveness, that “there was no doubt.” And yet it turned out that the charges as to both these vessels also were wholly groundless, notwithstanding the interest in them of those firms and persons, whose very names seem to have been supposed by the Consuls of the United States to be sufficient prima-facie evidence of a violation of the law. The Phantom proved to be a blockade-runner, and the Southerner to be a passenger-vessel, whose first employment was to carry Turkish pilgrims in the Mediterranean. (British Appendix, vol. ii, pages 167–209.)35. Of the suggestion, that the belief of the consuls of the United States, in' British ports, should be treated as sufficient prima facie evidence.

With respect to the value of the suggestions, in the Argument of the United States, that certain parts of their administrative machinery (such as the employment of District Attorneys, and the encouragement offered to informers by the law, which gives them half the forfeitures obtained by their means) are more effective than the practice of Great Britain, under which the Attorney-General is (in England) the only public prosecutor, and no share of any forfeiture under the Foreign-Enlistment Act is given to informers; light may also be derived from the preceding extracts. On these, however, and all similar points, (giving to the authorities of the United States the credit which they claim for using such preventive powers as they possessed in good faith, and with what they deemed due diligence for their intended purposes,) no evidence can be more instructive than that of practical results.36. The preventive efficacy of the American law tried by the test of practical results.

Between the years 1815 and 1818, (notwithstanding everything which the Executive of the United States could do to the contrary,) twenty-eight vessels were armed or equipped in, and dispatched from, the ports of the United States, or within their jurisdiction, for privateering against Spain, viz, seven at New Orleans, one at Barrataria in the Gulf of Mexico, two at Charleston, two at Philadelphia, twelve at Baltimore, and four at New York. (See the list furnished by the Spanish Minister, Appendix to British Case, vol. iii, page 132.)

In the years 1816 to 1819, twenty-six ships were armed in and dispatched from Baltimore alone for privateering against Portugal. (Letter from Chevalier de Serra, November 23, 1819. Ibid., page 155.)

In the period between 1816 and 1828, sixty Portuguese vessels were captured or plundered by privateers armed in American ports, and the ships and cargoes appropriated by the captors to their own use. (Letter from Senhor de Figaniere e Morao. Ibid., page 165.)

The Proclamation of President Van Buren, of the 5th of January, 1838, stated that information had been receeived that, “notwithstanding the Proclamation of the Governors of the States of New York and Vermont, exhorting their citizens to refrain from any unlawful acts within the territory of the United States, and notwithstanding the presence of the civil officers of the United States, * * * arms and munitions of war and other supplies have been procured by the (Canadian) insurgents in the United States; that a military force, consisting in part, at least, of citizens of the United States, had been actually organized, had congregated at Navy Island, and were still in arms under the command of a citizen of the United States, and that they were constantly receiving accessions and aid.”

On the 10th March, 1838, a temporary Act of Congress was passed to provide for more efficacious action in repressing these outrages than was provided by the Act of 1818.

Nevertheless, on the 21st November, 1838, President Van Buren found it necessary to issue another Proclamation, in which he said that, in disregard of the solemn warning heretofore given to them by the Proclamations issued by the Executive of the General Government, and by some of the Governors of the States, citizens of the United States had combined to disturb the peace of a neighboring and friendly nation; and a “hostile invasion” had “been made by the citizens of the United States in conjunction with Canadians and others,” who “are now in arms against the authorities of Canada, in perfect disregard of their own obligations as American citizens, and of the obligations of the Government of their country to foreign nations.”

In August, 1849, President Taylor issued a Proclamation, stating that there was “reason to believe that an armed expedition” was “about to be fitted out in the United States with an intention to invade Cuba;” and letters were written on the subject to the District Attorneys in Louisiana and at Philadelphia, Baltimore, and Boston. (Appendix to American Counter Case, pages 646–648.)

On the 7th of May, 1850, Lopez, nevertheless, left Orleans with five hundred men; landed at Cardenas, and, after occupying the town, fled on the approach of the Spanish troops, and returned to the United States.

It appears, from the Appendix to the American Counter Case, that orders were given for his arrest on the 25th of May, 1850, but the result is not mentioned. (Pages 666, 667.)

On the 27th May, 1850, he was arrested, but discharged; and although the Grand Jury brought in a true bill against him on the 21st July, the prosecution was abandoned.

On the 3d August, 1850, he started on a second expedition with four hundred men, and was executed in Cuba on the 11th September. (British Counter Case, pages 36, 37. See also Appendix to American Counter Case, pages 676–686.)

In October, 1853, an expedition against Mexico issued under Walker from San Francisco, and seized the town of La Paz. In May, 1855, a second expedition issued from the same city, under the same adventurer, against Central America. This expedition landed at Realejo, and Walker continued in Central America until May, 1857, when he was conveyed from Rivas in the United States ship of war Saint Mary’s. He then made preparations in the United States for a third expedition; and these renewed preparations occasioned the circular of September 18, 1857, urging the District Attorneys and Marshals to use “due diligence” to enforce the Act of 1818. (British Counter Case, page 38.)

In spite of this, Walker again eluded the law on the 11th September, 1857, and sailed from Mobile with three hundred and fifty men. After occupying Fort Castillo in Central America, he was intercepted by Commodore Paulding and brought to the United States. The American Argument mentions this officer as one of those who have been employed “to maintain the domestic order and foreign peace of the Government,” (page 70;) presumably on this occasion; but it will be seen, from the Appendix to the American Counter Case, that his conduct was severely censured by the President at the time, (page 612.)

In December, 1858, another expedition started from Mobile in the Susan, but was frustrated by the vessel being wrecked.

In November, 1859, a further expedition was attempted in the Fashion.

In June, 1860, Walker made his last expedition from the United States, and was shot at Truxillo. (British Counter Case, pages 37–40. See also Appendix to American Counter Case, pages 515–518, 612–627, 632–643, 707–709.)

It may be interesting to mention that a correspondence, respecting claims between the Republic of Nicaragua and the United States, has recently been published in the official Gazette of that Republic, in which the Government of Nicaragua desired that, in a proposed adjustment of claims by a Mixed Commission, the claims of Nicaragua for injuries and losses sustained by these “filibustering” expeditions should be taken into consideration. The Government, however, of the United States declined all responsibility, on the ground that they had fulfilled all that could be required of them, either by the laws of the United States or by international law, and declared these claims to be inadmissible.

The British Counter Case gives an account of the open preparations for an attack on Canada continued during the years 1865–’66. The first raid took place from Buffalo and Saint Alban’s in June, 1866.

The second raid was from Malone and Saint Alban’s, in May, 1870.

The third raid was on the Pembina frontier, in October, 1871.

Expeditions proceeded from the United States, in aid of the Cuban insurgents, in the Grapeshot and Peritt, in May, 1869; and from New Orleans in the Cespedes, or Lilian, in October, 1869. (The latter was stopped at Nassau.)

Another expedition, in the Hornet or Cuba, (the vessel having been previously libeled in the Admiralty Court and bonded in 1870,) landed in Cuba in January, 1871. (British Counter Case, page 45.)

The foregoing narrative is necessarily brief and imperfect; but it shows, besides the systematic privateering practiced, by subjects of the United States, against Spain and Portugal in 1816–’28, (when upward of fifty-four privateers are mentioned as having been armed and dispatched from American ports,) two expeditions against Cuba under Lopez; six expeditions under Walker; three Fenian raids; and three expeditions in aid of the Cuban insurgents. The latter, according to the reports in the American press, would appear to be still continued.

IX.—General Conclusion: the failure to prevent does not always prove a want of “due diligence.”

The general result, to which we have been led as well by reason and principle as by experience, is this: that occasional (it may even be frequent) failures to prevent acts contrary to law, and injurious to a friendly State, may nevertheless be entirely consistent with a serious intention and bona-fide endeavor, on the part of the Government whose subjects commit such acts within its jurisdiction, to prevent them, and with the use of due diligence for that purpose; that, without timely information and evidence of a legal kind, sufficient and proper to constitute a “reasonable ground of belief,” no obligation to use any such diligence arises, and that the Government of a civilized nation cannot be held wanting in due diligence if, having made reasonable provision by law for the prevention of illegal acts of this nature on the part of its citizens, it proceeds to deal with all such cases in a legal course, according to its accustomed methods of civil administration. This is, in fact, the “diligence,” and the only diligence which is, in such cases, generally “due” from an independent State to a foreign Government; and from this it follows that accidental find unintentional difficulties or delays, or even slips and errors, such as are liable to result, in the conduct of public affairs, from the nature of the subordinate instruments by which, and the circumstances under which, civil Government is necessarily carried on, and against which no human foresight can always absolutely provide, ought not in themselves to be regarded as instances or proofs of a want of “due diligence,” where good faith and reasonable activity on the part of the Government itself has not been wanting. Least of all can the Government of a free country be held wanting in due diligence on the ground of errors of judgment, into which a Judge of a Court of Law, in the exercise of a legal jurisdiction properly invoked, may have fallen (as when the Florida was acquitted at Nassau) in the decision of a particular case.37. The general result proves, that many failures to prevent may happen, without want of due diligence, from cruses for which Governments cannot be held responsible.

“The United States agree with Her Majesty’s Government when it says, as it does in its Counter Case, that it should not be, and they hope it is not, in the power of Her Majesty’s Government to instruct a judge, whether in the United Kingdom or in a colony or dependence of the Crown, how to decide a particular case or question. No judge in Her Majesty’s dominions should submit to be so instructed; no community, however small, should, tolerate it; and no minister, however powerful, should ever think of attempting it.” (Argument of the United States, p. 121.)

This being so, if the Government had information and evidence which made it their duty to detain such a ship as the Florida, and to endeavor to prosecute her to condemnation, and if they actually did so, and offered for that purpose proper evidence, they used all the diligence which was due from them. Over the judgment, whether right or erroneous, they had no control; and for it, if erroneous, they have no responsibility.¹

But the counsel of the United States say that—

“The efforts of the British Case and Counter Case to ascribe to, or apportion among, the various departments of national authority, legislative, judicial and executive, principle or subordinate, the true measure of obligation and responsibility, and of fault or failure, in the premises, as among themselves, seem wholly valueless. If the sum of the obligations of Great Britain to the United States was not performed, the nation was in fault, wherever, in the functions of the State or their exercise, the failure in duty arose.” (Argument, p. 147.)

The question, whether “the sum of the obligations of Great Britain to the United States” was or was not performed, (which is the point at issue,) seems to be here assumed. A petitio principii cannot, of course, be an answer to arguments intended to show that the sum of those national obligations was, in fact, performed. The United States affirm that in the various cases in which they themselves failed to prevent, within their own territory, equipments and expeditions hostile to other States, the sum of their own national obligations was performed; and yet they seem to deny to the Government of Great Britain the benefit of the same equitable principles of judgment.

X.—Of the burden of proof, according to the Treaty.

They go further: they seek to invert the whole burden of proof in the present controversy:

The foundation of the obligation of Great Britain to use “due diligence to prevent” certain acts and occurrences within its jurisdiction, as mentioned in the three Rules, is, that those acts and occurrences within its jurisdiction are offenses against international law, and, being injurious to the United States, furnished just occasion for resentment on their part, and for reparation and indemnity by Great Britain, unless these offensive acts and occurrences shall be affirmatively shown to have proceeded from conduct and causes for which the Government of Great Britain is not responsible. But by the law of nations the State is responsible for all offenses committed against international law arising within its jurisdiction, by which a foreign State suffers injury, unless the former can clear itself of responsibility by demonstrating its freedom from fault in the premises. (Page 154.)38. Attempt of the United States to change generally the onus probandi in the present controversy.

And again, at page 154:

The nature of the presumptive relation which the State bears to the offenses and injuries imputed and proved necessarily throws upon it the burden of the exculpatory proof demanded; that is to say, the proof of due diligence on its part to prevent the offenses which, in fact and in spite of its efforts, have been committed within its jurisdiction, and have wrought the injuries complained of.

In the face of the sixth article of the Treaty, by which Her Majesty expressly declines to assent to the three Rules as a statement of principles of international law which were in force when these claims arose, but agrees that the Arbitrators may apply these rules to the decision of the claims, upon the footing of an undertaking by Great Britain to act upon their principles—it is here assumed that all such acts or occurrences within British jurisdiction as are mentioned in the Treaty are to be dealt with by the Arbitrators as offenses against international law; notwithstanding the proofs, given in the British Counter Case and the annex (A) thereto, and referred to at the commencement of this paper, that international law never did require a neutral Government to prohibit and prevent the manufacture, sale, and dispatch of unarmed ships of war, by its citizens within its territory, for a belligerent.39. In so doing, they transgress the rules of the Treaty.

In the face of the three Rules themselves, which affirm the obligation of due diligence to prevent, only when there are “reasonable grounds to believe” that some prohibited act has been or is about to be done, the United States decline the burden of establishing, in each or any case, the existence of this preliminary and indispensable condition, reasonable ground for belief; and they ask that this should be taken for granted in every case until it is disproved.

To justify this disregard of the primary condition of the rules, they appeal to a supposed law of nations, which is said universally to throw the onus of demonstrating its own freedom from “fault in the premises” upon every State whose citizens commit any offense against international law, injurious to a foreign State within its jurisdiction; which principle, as was shown in the early part of this paper, has never been extended to cases (like the present) when the acts in question have been done by individuals or by small numbers of citizens. The United States do not admit themselves to be responsible for all the equipments and hostile expeditions of their citizens against foreign States which they have failed to prevent, under the propositions that “it is presumed that a Sovereign knows what his subjects openly and frequently commit;” that, “as to his power of hindering the evil, this likewise is also presumed unless the want of it be clearly proved.” But, if those propositions would not be applicable against the United States, why are they to be applied against Great Britain, to cases much further removed in their nature and circumstances from the terms of the propositions?40. The law of nations does not justify this attempt.

It happens that there is a decision of weight, of which the United States long ago had the benefit in a former controversy with Great Britain, under circumstances not very dissimilar in principle, which is directly opposed to this attempt on their part now to alter the burden of proof. The United States come before the Arbitrators under an agreement of the Queen of Great Britain, by which Her Majesty authorizes the Arbitrators to assume that she had undertaken, when the present claims arose, to act upon the principles set forth in the three Rules, though not admitting them to have been then in force as rules of international law. In 1798, Great Britain came before the Commissioners of Claims under the Treaty of 1794, with an actual undertaking by the United States to use all the means in their power to restore all British prizes brought into ports of the United States, after a certain date, by any vessel illegally armed within their jurisdiction, and with an acknowledgment of their consequent obligation to make compensation for such, if any, of those prizes as they might not have used all the means in their power to restore. The undertaking of Great Britain, now to be assumed by the Arbitrators, is conditional upon the existence of “reasonable grounds for belief” of certain facts by the British Government in the case of each of the vessels for which Great Britain is sought to be made responsible. The undertaking of the United States, in 1794, was also dependent upon certain conditions of fact. What was the decision of the Commissioners in the case of the Elizabeth? (British Counter Case, pp. 29, 30, and British Appendix, vol. v, p. 322:)41. The decision in the case of the Elizabeth by the Commissioners under the Treaty of 1794 is against it.

“From this examination of the letter, which is given to us for a rule, (Mr. Jefferson to Mr. Hammond, 5th September, 1793,) it results that it was the opinion of the President, therein expressed, that it was incumbent on the United States to make restitution of, or compensation for, all such vessels and property belonging to British subjects as should have been, first, captured between the dates of June 5 and August 7 within the line of jurisdictional protection of the United States, or even on the high seas; if, secondly, such captured vessel and property were brought into the ports of the United States; and, thirdly, provided that, in cases of capture on the high seas, this responsibility should be limited to captures made by vessels armed within their ports; and, fourthly, that the obligation of compensation should extend only to captures made before the 7th August, in which the United States had confessedly foreborne to use all the means in their power to procure restitution; and that, with respect to cases of captures made under the first, second, and third circumstances above enumerated, but brought in after the 7th August, the President had determined that all the means in the power of the United States should be used for their restitution, and that compensation would be equally incumbent on the United States in such of these cases (if any such should at any future time occur) where, the United States having decreed restitution, and the captors having opposed or refused to comply with or submit to such decree, the United States should forbear to carry the same into effect by force.

“Such was the promise. In what manner was that promise to be carried into effect? It was not absolute to restore by the hand of power, in all cases where complaint should be made. * * * * * *

“No, the promise was conditional. We will restore in all those cases of complaint where it shall be established by sufficient testimony that the facts are true which form the basis of our promise—that is, that the property claimed belongs to British subjects; that it was taken either within the line of jurisdictional protection, or, if on the high seas, then by some vessel illegally armed in our ports; and that the property so taken has been brought within our ports. By whom were these facts to be proved? According to every principle of reason, justice, or equity, it belongs to him who claims the benefit of a promise to prove that he is the person in whose favor, or under the circumstances in which the promise was intended to operate”

XI.—Special questions remaining to be considered.

These are the arguments, upon the subject of the diligence generally due by Great Britain to the United States, with reference to the subjects to which the three Rules of the Treaty of Washington relate, and the principles according to which that diligence is to be proved or disproved, which it has been desired by Her Britannic Majesty’s Counsel to submit to the Arbitrators. There remain some other special questions, which require separate examination:42. Special questions remaining to be considered.

1. Whether the diligence due from Great Britain, as to any vessel equipped contrary to the first Rule, extended to the pursuit of the vessel by a naval force after she had passed beyond British jurisdiction?

2. Whether the diligence, so due, extended to an obligation, on the re-entry of any such vessel into a British port, after she had been commissioned by the Confederate States as a public ship of war, to seize and detain her in such port? And,

3. Whether supplies of coal, furnished in British ports to Confederate cruisers, can be regarded as infractions of the second Rule of the Treaty, or as otherwise wrongful against the United States?

XII.—There existed no duty to pursue ships beyond the limits of British jurisdiction.

Upon the first of these three points, the sole argument of the United States appears to be derived from the precedent of the Terceira expedition in 1829. It is a strange proposition, and one unsupported by any principle or authority in international law, that, because a Government, which conceived its neutrality laws to have been infringed upon a particular occasion, may have thought fit to visit that offense by extraordinary measures (really in the nature of war or reprisals) beyond its own territory, therefore it placed itself under an obligation to take similar measures upon subsequent occasions, if any such should occur of a like character. In point of tact, there is no similarity between the Terceira case, which (in the view taken of it by the British Government) was an expedition of embodied, though unarmed troops, proceeding in transports from Great Britain, against an express prohibition of the British Government, tor the invasion of a friendly territory, and the departure of unarmed vessels, for the use of the Confederates, from British ports. In point of international law, the British Government was not only under no obligation to pursue the Terceira expedition, but Sir Robert Phillimore (whose authority is so much extolled in the Argument of the United States) distinctly condemns that proceeding. “The Government,” he says, “were supported by a majority in both Houses of Parliament; but in the protest of the House of Lords, and in the resolutions of (i. e., moved in) the House of Commons, (which condemned the proceedings of the Government,) the true principles of international law are found.” (Commentaries, vol. iii, p. 235.)43. As to the alleged duty of pursuit: The Terceira expedition.

The two remaining points are those on which the Arbitrators have consented to receive arguments, embracing other important questions, both of international law, and as to the proper interpretation of the rules of the Treaty of Washington, in addition to the question of the diligence (if any) due from Great Britain to the United States, in those respects.

Chapter II.—On the special question of the effect of the commissions of the confederate ships of war, on their entrance into British ports.

It is contended by the United States that these ships (or at least such of them as had been illegally equipped in British territory) ought to have been seized and detained, when they came into British ports, by the British authorities. This argument depends upon a forced construction of the concluding words of the first Rule, in Article VI of the Treaty of Washington; which calls upon the neutral State to “use due 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.” Does this Rule authorize the Arbitrators to treat it as a duty undertaken by Great Britain, to seize Confederate cruisers commissioned as public ships of war and entering British ports in that character, without notice that they would not be received on the same terms as other public ships of war of a belligerent State, if they were believed to have been “specially adapted, in whole or in part, within British jurisdiction, to warlike use?” The negative answer to this inquiry results immediately from the natural meaning of the words of the Rule itself, which plainly refer to a departure from the neutral territory of a vessel which has not at the time of such departure ceased to be subject, according to the law of nations, to the neutral jurisdiction; and the cruising and carrying on war by which still rests in intention and purpose only, and has not become an accomplished fact, under the public authority of any belligerent Power.1. The true construction of the 1st rule of the Treaty.

If a public ship of war of a belligerent Power should enter neutral waters in contravention of any positive regulation or prohibition of the neutral Sovereign, of which due notice had been given, she might, according to the law of nations, be treated as guilty of a hostile act, a violation of neutral territory; and hostile acts may of course be justifiably repelled by force. But the original equipment and dispatch from neutral territory of the same ship, when unarmed, whether lawful or unlawful, was no hostile act; and a foreign Power, which afterward receives such a ship into the public establishment of its navy, and gives her a new character by a public commission, cannot be called upon to litigate with the neutral Sovereign any question of the municipal law of the neutral State, to whose jurisdiction it is in no matter subject. The neutral State may, if it think fit, give notice (though no authority can be produced for the proposition that it is under any international obligation to do so) that it will not allow the entrance of a particular description of vessels, whether commissioned or not, into its waters; if it gives no such notice it has no right, by the law of nations, to assume or exercise any jurisdiction whatever over any ship of war coming into its waters under the flag and public commission of a recognized belligerent.¹ Such a ship, committing no breach of neutrality while within neutral waters, is entitled to extra-territorial privileges; no court of justice of the neutral country can assume jurisdiction over her; the flag and commission of the belligerent power are conclusive evidence of his title and right; no inquiry can be made, under such circumstances, into anything connected with her antecedent ownership, character, or history. Such was the decision (in accordance with well-established principles of international law) of the highest judicial authority in the United States in 1811, in the case of the Exchange, a ship claimed by American citizens, in American waters, as their own property; but which, as she had come in as a public ship of war of France, under the commission of the first Emperor Napoleon, was held to be entitled to recognition as such in the waters of the United States, to the entire exclusion of every proceeding and inquiry whatever, which might tend in any way to deprive her of the benefit of that privileged character. The principles laid down in the following extracts from that judgment are in accordance with those which will be found in every authoritative work on international law which treats of the subject; (see the passages from Ortolan, Hautefeuille, Pando, &c., cited at length in the note to the British Counter Case, pp. 14, 15; also Azuni, vol. ii, (Paris edition, 1805,) pp. 314, 315, &c.; and Bluntschli’s “Droit international,” Article 321, p. 184 of the French translation by Lardi:)2. The privileges of public ships of war in neutral ports.

The world being composed of distinct sovereignties, possessing equal rights and equal independence, whose mutual benefit is promoted by intercourse with each other, and by an interchange of those good offices which humanity dictates and its wants require, all Sovereigns have consented to relaxation in practice, in cases under certain peculiar circumstances, of that absolute and complete jurisdiction within their respective territories which sovereignty coalers.3. The case of the Exchange.

This consent may, in some instances, be tested by common usage and by common opinion growing out of that usage.

A nation would justly be considered as violating its faith, although that faith might not be expressly plighted, which should suddenly, and without previous notice exercise its territorial powers in a manner not consonant to the usages and received obligations of the civilized world.

This full and absolute territorial jurisdiction being alike the attribute of every Sovereign, and being incapable of conferring extra-territorial power, would not seem to contemplate foreign Sovereigns nor their sovereign rights as its objects. One Sovereign being in no respect amenable to another, and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him.

This perfect equality and absolute independence of Sovereigns, and this common interest impelling them to mutual intercourse and an interchange of good offices with each other, have given rise to a class of cases in which every Sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction which has been stated to be the attribute of every nation.

If, for reasons of state, the ports of a nation generally, or any particular ports, be closed against vessels of war generally, or the vessels of any particular nation, notice is usually given of such determination. If there be no prohibition, the ports of a friendly nation are considered as open to the public ships of all powers with whom it is at peace, and they are supposed to enter such ports, and to remain in them, while allowed to remain, under the protection of the Government of the place.

When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant-vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction and the Government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. Nor can the foreign Sovereign have any motive for wishing such exemption. His subjects thus passing into foreign countries are not employed by him, nor are they engaged in national pursuits. Consequently, there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter can never be construed to grant such exemption.

But in all respects different is the situation of a public armed ship. She constitutes a part of the military force of her nation; acts under the immediate and direct command of the Sovereign; is employed by him in national objects. He has many and powerful motives for preventing those objects from being defeated by the interference of a foreign State. Such interference cannot take place without affecting his power and his dignity. The implied license, therefore, under which such vessel enters a friendly port may reasonably be construed, and it seems to the court ought to be construed, as containing an exemption from the jurisdiction of the Sovereign within whose territory she claims the rights of hospitality.

Upon these principles, by the unanimous consent of nations, a foreigner is amenable to the laws of the place; but certainly, in practice, nations have not yet asserted their jurisdiction over the public armed ships of a foreign Sovereign entering a port open for their reception.

The words of Bluntschili are:4. Other authorities.

Exceptionellement on accorde l’exterritorialité aux navires de guerre étrangers, lorsqu’ils sont entrés dans les eaux d’un état avec la permission de ce dernier.

Mr. Cushing, when Attorney-General of the United States, in 1855, thus stated the rule, as received in the United States:

A foreign ship of war, or any prize of hers in command of a public officer, possesses, in the ports of the United States, the right of exterritoriality, and is not subject to the local jurisdiction.¹

It cannot, therefore be supposed that when two nations, by both of which these principles of international law had been habitually acted on, recognized, in the first Rule of the Treaty of Washington, an obligation to “use due diligence to prevent the departure of a ship intended to cruise,” &c., from the “neutral jurisdiction,” either of them meant to authorize the other to demand, under any circumstances, a violation of these principles, in the case of any ship cruising as a ship of war by the public authority of a belligerent at the time of her entrance into neutral waters, and which, according to these principles, was there entitled to the privilege of exterritoriality, and was not subject to the neutral jurisdiction. Had an innovation of so important and extraordinary a kind been intended, it would certainly have been unequivocally expressed; and it would have become the plain duty of any neutral State, which had entered into such an engagement, to give notice of it beforehand to all belligerent Powers before it could be put in force to their prejudice. It is impossible that an act which would be a breach of public faith and of international law toward one belligerent could be held to constitute any part of the “diligence due” by a neutral to the other belligerent. The rule says nothing of any obligation to exclude this class of vessels, when once commissioned as public ships of war, from entrance into neutral ports upon the ordinary footing. If they were so excluded by proper notice they would not enter, and the rule (in that case) could never operate to prevent their departure. If they were not so excluded, instead of being “due diligence,” it would be a flagrant act of treachery and wrong to take advantage of their entrance in order to effect their detention or capture. Can Her Majesty be supposed to have consented to be retrospectively judged, as wanting in due diligence, because, not having excluded these Confederate ships of war from her ports by any prohibition or notice, she did not break faith with them, and commit an outrage on every principle of justice and neutrality by their seizure? The rules themselves had no existence at the time of the war; the Confederates knew, and could know, nothing of them; their retrospective application cannot make an act ex post facto “due,” upon the footing of “diligence,” to the one party in the war, which, if it had been actually done, would have been a wholly unjustifiable outrage against the other.5. The rule cannot require an act wrongful by international law.

These principles receive illustration from the controversy which took place in Decemcer, 1861, between Brazil and the United States, on the subject of the reception of the Sumter in Brazilian ports. Señor Taques, the Foreign Minister of Brazil, wrote thus to Mr. Webb, the United States Minister at Rio, on the 9th December, 1861:

Some Powers have adopted as a rule not to admit to entry in their ports either the privateers or vessels of war of belligerents; others are holden to do so under the obligations of treaties concluded with some of the belligerents before or during the war. Brazil has never placed herself in this exceptional condition, but, under the general rule, which admits to the hospitality of her ports ships of war, and even to a privateer compelled by stress to seek it, provided she brings no prizes, nor makes use of her position in such ports for acts of hostility by taking them as the basis for her operations.

The rule adopted by civilized nations is to detain in port vessels equipped for war until twenty-four hours after the departure of any hostile vessel, or let them go, requiring from the commanders of vessels of war their word of honor, and from privateers pecuniary security and promise, that they will not pursue vessels which had left port within less than twenty-four hours before them. Nor do the rules of the law of nations nor usage, nor the jurisprudence which results from treaties, authorize a neutral to detain longer than twenty-four hours in his ports vessels of war or privateers of belligerents, unless it could be done by the indirect means of denying them facilities for obtaining in the market the victuals and ship’s provisions necessary to the continuance of their voyages. A neutral who should act in this manner, incarcerating in his ports the vessels of one of the parties, would take from one of the belligerents the exercise of his rights, turn himself by the act into an ally and co-operator with the other belligerent, and would violate his neutrality.

Without a previous declaration, before the principles adopted in Brazil and in the United States being known, such a proceeding on the part of the Brazilian authorities toward the Sumter would take the character of a snare, which would not meet the esteem or approval of any Government.¹

The absence of any rule obliging a neutral to exclude from his ports foreign ships of war, if originally adapted, wholly or in part, to warlike use within the neutral jurisdiction, rests evidently upon good reasons, and cannot have been unintentional. Whatever, as a matter of its own independent discretion and policy, a neutral Government may, at any time, think fit to do in such cases, it will certainly do with all public and proper notice, which cannot be retrospectively assumed to have been given, or agreed to be given, contrary to notorious facts. The reasons, which in some cases might make a policy of this kind just and reasonable, as against a Power which, first infringing the laws of a neutral State by procuring vessels to be illegally equipped within its territory, might afterward employ them in war, would not apply to other cases, which may easily be supposed; e. g., if such a vessel, having been disposed of to new owners after her first equipment, were afterward commissioned by a Power not in any sense responsible for that equipment. The offense is one of persons, not of things; it does not adhere necessarily to the ship into whatever hands she may come; even a ship employed by pirates in their piracy, if she is afterward (before seizure in the exercise of any lawful jurisdiction) actually transferred to innocent purchasers, ceases to have the taint of piracy in the hands of such new owners, as was lately decided by the Judicial Committee of the English Privy Council in the case of the Dominican ship Telegrafo. Nor, in a question of this kind between Great Britain and the Confederate States, is it possible to assume (in view of the facts that the interpretation of the British prohibitive law was disputed and doubtful, and that international law had never treated the construction, equipment, and dispatch of unarmed ships of war by neutral shipbuilders, to the order of a belligerent, as a violation of the territory or sovereignty of the neutral State) that the authorities of the Confederate States, when they commissioned the vessels in question, were actually in the situation of a Power which had willfully infringed British law, or British neutrality, within British territory.6. There is no rule obliging a neutral to exclude from his ports ships of this description.

Even if the latter part of the first Rule could be construed as the United States suggest, with respect to the subject of the present chapter, it would not apply to the Georgia—a ship whose special adaptation, within British jurisdiction, to warlike use, the Tribunal is asked to take for granted without any evidence, though it is denied by Great Britain, and though the ship actually proved to be unsuitable for such use. Still less could the Rule apply to the Shenandoah, a merchant-ship, transferred to the Confederates, without receiving, within British jurisdiction, any new equipment or outfit whatever, of any kind, in order to enable her to cruise or to be employed in the Confederate service. It is clear, beyond controversy, that when the Shenandoah entered the port of Melbourne as a public ship of war of the Confederates, nothing had been done to her, in any part of the British dominions, which could be so much as pretended to be an infringement of the first Rule of the Treaty, or of the law of nations, or of any British law whatever. And yet, in the Argument of the United States (pp. 120, 121) a statement by the United States Consul at Melbourne, in a letter to Mr. Seward, to the effect, that, in some conversation with him, the Colonial Law-Officers had “seemed to admit that she was liable to seizure and condemnation if found in British waters,” is gravely brought forward and seriously commented on, as a reason why she ought to have been seized at Melbourne.7. In any view the latter part of Rule 1 cannot apply to the Georgia or the Shenandoah.

The Argument of the United States suggests, however, a distinction between “public ships of recognized nations and Sovereigns” and “public ships belonging to a belligerent Power which is not a recognized State.” For such a distinction there is neither principle nor authority. The passage cited in the British Summary (p. 31) from the judgment of Mr. Justice Story, in the case of the Santissima Trinidad, states the true principles applicable to this part of the subject. The ship Independencia del Sud, whose character was there in controversy, had been commissioned by the revolutionary Government of Buenos Ayres:8. The distinction suggested by the United States between ships of war of recognized nations and ships of a non-recognized State.

“There is another objection,” said the learned Judge, “urged against the admission of this vessel to the privileges and immunities of a public ship, which may well be disposed of in connection with the question already considered. It is, that Buenos Ayres has not yet been acknowledged as a sovereign independent Government by the Executive or Legislature of the United States, and, therefore, is not entitled to have her ships of war recognized by our Courts as national ships. We have, in former cases, had occasion to express our opinion on this point. The Government of the United States has recognized the existence of a civil war between Spain and her colonies, and has avowed a determination to remain neutral between the parties, and to allow to each the same right of asylum and hospitality and intercourse. Each party is, therefore, deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war, and entitled to be respected in the exercise of those rights. We cannot interfere, to the prejudice of either belligerent, without making ourselves a party to the contest, and departing from the posture of neutrality. All captures made by each must be considered as having the same validity; and all the immunities which may be claimed by public ships in our ports tinder the law of nations must be considered as equally the right of each.”

In like manner, in the recent case of the Hiawatha, (a British prize, taken by the United States at the commencement of the late civil war,) when the question arose, whether the civil contest in America had the proper legal character of war, justum bellum, or that of a mere domestic revolt, and was decided by the majority of the Supreme Court of the United States in accordance with the former view, Mr. Justice Grier, delivering the opinion of the majority, said:

It is not the less a civil war with belligerent parties in hostile array because it may be called an “insurrection” by one side, and the insurgents be considered as rebels or traitors. It is not necessary that the independence of the revolted province or State be acknowledged, in order to constitute it a party belligerent in a war, according to the law of nations. Foreign nations acknowledge it as war by a declaration of neutrality. The condition of neutrality cannot exist unless there be two belligerent parties. In the case of the Santissima Trinidad (7 Wheaton, 337) this court says: “The Government of the United States has recognized the existence of a civil war between Spain and her colonies, and has avowed her determination to remain neutral between the parties. Each party is therefore deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war.”

Professor Bluntschli, in a contribution to the “Revue de droit international” for 1870. (pp. 452–470,) in which, upon the assumptions of fact contained in a speech of Mr. Summer in the Senate of the United States, (and on those assumptions only,) he favors some part of the claims of the United States against Great Britain, so far as relates to the particular ship Alabama, distinctly lays down the same doctrine:

Du reste, le parti révolté, qui opère avec des corps d’armée militairement organisés, et entreprend de faire triompher par la guerre un programme politique, agit, alors même qu’il ne forme point un état, tout au moins comme s’il en constituait un, au lieu et place d’un état (“an Staates statt”). Il affirme la justice de sa cause, et la légitimité de sa mission, avec une bonne foi égale à celle qui se présume de droit chez tout état belligérant. (Pages 455–456.)

Again:

Pendant la guerre on admet, dans l’intérêt de l’humanité, que les deux parties agissent de bonne foi pour la défense de leurs prétendus droits. (Page 458.)

And, at pages 461, 462:

Si l’on tient compte de toutes ces considérations, on arrive à la conclusion suivante; états éuropéens, en présence de la situation que créaient les faits, la lutte engagé C’est que, à considérer d’un point de vue impartial, tel qu’il s’offrait et s’imposait aux entre l’union et la confédération, c’est-à-dire, entre le ford et le sud, il était absolument impossible de ne pas admettre que les états-Unis fussent alors engagés dans une grande guerre civile, ou les deux partis avaient le caractère de puissances politiquement et militairement organisées, se faisant l’une à l’autre la guerre, suivant le mode que le droit des gens reconnaît comme régulier, et animés d’une égale confiance dans le bon droit. * * * Tout le monde était d'accord qu'il y avait guerre, et que, dans cette guerre, il y avait deux parties belligérantes.

That all the vessels of which there is any question before the Arbitrators, and especially those which are alleged to have been equipped or adapted for warlike uses within British territory, were, in fact, commissioned and employed as public shins of war by the authorities then exercising the powers of public Government in the Confederate States, is not seriously (if it be at all) disputed by the United States. The proofs of it¹ abound both elsewhere and in those intercepted letters from Confederate authorities, and other Confederate documents, (such as the Journal of Captain Semmes, &c.,) which the United States have made part of their evidence; and to which, for this purpose at all events, they cannot ask the Arbitrators to refuse credit. All these vessels were always received as public ships of war in the ports of France, Spain, the Netherlands, Brazil, and other countries.9. All the ships in question were duly commissioned ships of war.

“As to the Florida,” said the Marquis d’Abrantes, the Foreign Minster of Brazil, writing to Mr. Webb on the 22d June, 1863, “the undersigned must begin by asking Mr. Webb’s consent to observe that if the President of Pernambuco knew that that steamer was the consort of the Alabama, as was also the Georgia, it does not follow, as Mr. Webb otherwise argues, that the said President should consider the Florida as a pirate.

“According to the principles of the neutrality of the Empire, to which the undersigned has already alluded, all these vessels of the Confederate States are vessels of war, exhibiting the flag and bearing the commission of the said States, by which the Imperial Government recognized them in the character of belligerents.”²

Upon the same footing the Shenandoah was delivered up to the United States, as public property, when she arrived at Liverpool after the conclusion of the war. And though the terms “pirates” and “privateers” have been freely applied to these vessels in many of the public and other documents of the United States, the former term was only used as a vituperative or argumentative expression, in aid of the objections of the United States to the recognition, by foreign Powers, of the belligerent character of the Confederates. Neither Captain Semmes, of the Alabama, nor any other officer or seaman engaged in the naval service of the Confederates, was ever, during the war or after its conclusion, actually treated as a pirate by any political or other authority of the United States. And with respect to the denomination of “privateer,” a privateer is a vessel employed by private persons, under letters of marque from a belligerent Power, to make captures at sea for their private benefit. None of the vessels in question, at any moment of their history, can be pretended to have had that character.

Chapter III.—On the special question of supplies op coal to Confederate vessels in British ports.

The next point which remains is that as to the supplies of coal in British ports to Confederate cruisers.

That such supplies were afforded equally and impartially, so far as the regulations of the British Government and the intentions and voluntary acts of the British colonial authorities are concerned, to both the contending parties in the war, and were obtained, upon the whole, very much more largely by the ships of war of the United States than by the Confederate cruisers, are facts which ought surely to be held conclusive against any argument of the United States against Great Britain founded on these supplies. That such arguments should be used at all can hardly be explained, unless by the circumstance that they are found in documents maintaining the propositions that the belligerent character of the Confederates ought never to have been recognized, and that impartial neutrality was itself, in this case, wrongful. Let those propositions be rejected, and their own repeated acts in taking advantage of such supplies (sometimes largely in excess of the limited quantities allowed by the British regulations) are conclusive proof that the United States never, during the war, held or acted upon the opinion that a neutral State, allowing coal to be obtained by the war-vessels of a belligerent in its ports, whether with or without any limitation of quantity, was guilty of a breach of neutrality or of any obligation of international law.1. Both parties in the war equally received such supplies.

That such supplies might be given, consistently with every hitherto recognized rule or principle of international law is abundantly clear.

Chancellor Kent, in his commentaries, first lays down the rule against using neutral territory as a base of warlike operations, as that rule had been understood and acted upon, both in Great Britain-and in America:2. Such supplies are not within the rule as to not using neutral territory as a base of operations.

It is a violation of neutral territory for a belligerent ship to take her station within it, in order to carry on hostile expeditions from thence, or to send her boats to capture vessels being beyond it. No use of neutral territory, for the purpose of war, can be permitted. This is the doctrine of the Government of the United States. It was declared judicially in England, in the case of the Twee Gebroeders; and, though it was not understood that the prohibitions extended to remote objects and uses, such as procuring provisions and other innocent articles, which the law of nations tolerated, yet it was explicitly declared that no proximate acts of war were in any manner to be allowed to originate on neutral ground. No act of hostility is to be commenced on neutral ground. No measure is to be taken that will lead to immediate violence. (Vol. i, page 118.)

At page 120 he says:

There is no exception to the rule, that every voluntary entrance into neutral territory, with hostile purposes, is absolutely unlawful. The neutral border must not be used as a shelter for making preparations to renew the attack; and, though the neutral is not obliged to refuse a passage and safety to the pursuing party, he ought to cause him to depart as soon as possible, and not permit him to lie by and watch his opportunity for further contest. This would be making the neutral country directly auxiliary to the war, and to the comfort and support of one party.”¹

Ortolan (Diplomatie de la Mer, vol. ii, p. 291) says:

Le principe général de l’inviolabilité du territoire neutre exige aussi que l’emplo de ce territoire reste franc de toute mesure ou moyen de guerre, de l’un des belligérants contre l’autre. C’est une obligation pour chacun des belligérants de s’en abstenir; c’est aussi un devoir pour l’État neutre d’exiger cette abstention; et c’est aussi pour lui un devoir d’y veiller et d’en maintenir l’observation à l’encontre de qui que ce soit. Ainsi il appartient à l’autorité qui commande dans les lieux neutres où des navires belligérants, soit de guerre, soit de commerce, ont été reçus, de prendre les mesures nécessaires pour que l’asile accordé ne tourne pas en machination hostile contre l’un des belligérants; pour empêcher spécialement qu’il ne devienne un lieu d’où les bâtiments de guerre ou les corsaires surveillent les navires ennemis pour les poursuivre et les combattre, et les capturer lorsqu’ils seront parvenus au-delà de la mer territoriale. Une de ces mesures consiste à empêcher la sortie simultanée des navires appartenant à des Puissances ennemies l’une de l’autre.

Again, at page 302:

Si des forces navales belligérantes sont stationnées dans une baie, dans un fleuve, ou à l’embouchure d’un fleuve, d’un État neutre, a dessein de profiter de cette station pour exercer les droits de la guerre, les captures faites par ces forces navales sont aussi illégales. Ainsi, si un navire belligérant mouillé ou croisant dans les eaux neutres capture, au moyen de ses embarcations, un bâtiment qui se trouve en dehors des limites de ces eaux, ce bâtiment n’est pas de bonne prise: bien que l’emploi de la force n’ait pas eu lieu dans ce cas, sur le territoire neutre, néanmoins il est le résultat de l’usage de ce territoire; et un tel usoge pour des desseins hostiles n’est pas permis.²

The above passages supply the obvious and sufficient explanation of the words “base of naval operations.” Neutral territory is not to be used “in order to carry on hostile operations from thence,” or “as a shelter for making preparations for attack;” (Kent.) No act of hostility is to commence or originate there. “Captures made by armed vessels stationed in a river of a neutral Power, or in the mouth of his rivers, or in harbors, for the purpose of exercising the rights of war from that river or harbor, are invalid;” (Phillimore.) It is not to be made a place “d’où les bâtiments de guerre surveillent les navires ennemis pour les poursuivre et les combattre et les capturer, lorsqu’ils sont parvenus au delà de la mer territoriale;” (Ortolan.)3. What is meant by the words “A base of naval operations.”

It is not to “servir de station aux bâtiments des Puissances belligérantes;” (Heffter.) It is not to “servir à tendre des embûches à l’un des belligérants;” (Hautefeuille.) Belligerent vessels are not to station themselves or to cruise within it, in order to look out for enemies’ ships, “encore qu’ils sortent de leur retraite pour aller les attaquer hors les limites de la juridiction neutre.” (Ibid., and Pistoye et Duverdy.)

The phrase now in question is a short expression of the principle that neutral territory is not to be used as a place from which operations of naval warfare are to be carried into effect; whether by single ships, or by ships combined in expeditions. It expresses an accepted rule of international law. Any jurist who might have been asked whether neutral ports or waters might be used as a base for naval operations, would have replied that they might not; and he would have understood the words in the sense stated above.

The above citations and references furnish at the same time the necessary limitations under which the phrase is to be understood. None of these writers question—no writer of authority has ever questioned—that a belligerent cruiser might lawfully enter a neutral port, remain there, supply herself with provisions and other necessaries, repair damages sustained from wear and tear, or in battle, replace (if a sailing-ship) her sails and rigging, renew (if a steamer) her stock of fuel, or repair her engines, repair both her steaming and her sailing power, if capable (as almost all ships of war now are) of navigating under sail and under steam, and then issue forth to continue her cruise, or (like the Alabama at Cherbourg) to attack an enemy. “Ils y sont admis à s’y procurer les vivres nécessaires et à y faire les réparations indispensables pour reprendre la mer et se livrer de nouveau aux opérations de la guerre;” (Ortolan; Heffter.) “Puis sortir librement pour aller livrer de nouveaux combats (Hautefeuille.) The connection between the act done within the neutral territory and the hostile operation which is actually performed out of it, must (to be within the prohibition) be “proximate;” that is, they must be connected directly and immediately with one another. In a case where a cruiser uses a neutral port to lie in wait for an enemy, or as a station from whence she may seize upon passing ships, the connection is proximate. But where a cruiser has obtained provisions, sail-cloth, fuel, a new mast, or a new boilerplate in the neutral port, the connection between this and any subsequent capture she may make, is not “proximate,” but (in the words of Lord Stowell, quoted by Kent, Wheaton, and other writers) “remote.” The latter transaction is “universally tolerated;” the other universally forbidden.4. What is not meant by those words.

It is evident that if this phrase, “base of operations.” were to be taken in the wide and loose sense now contended for by the United States, it might be made to comprehend almost every possible case in which a belligerent cruiser had taken advantage of the ordinary hospitalities of a neutral port. It would be in the power of any belligerent to extend it almost indefinitely, so as to fasten unexpected liabilities on the neutral.5. Consequences of a lax use of the phrase “base of operations.”

Does it, then, make any difference that, in the second Rule of the Treaty of Washington, the prohibition of the use of neutral ports or waters as “the base of naval operations,” by one belligerent against the other, is combined with the further prohibition of “the renewal or augmentation of military supplies or arms?” So far from this, the context only makes the meaning of the former part of the Rule more clear. There can be no reasonable doubt as to what is meant by the words “renewal or augmentation of military supplies or arms.”6. Effect of the addition of the words “renewal or augmentation of military supplies or arms”

At page 122 of his Commentaries, (vol. i,) Chancellor Kent says:7. Doctrine of Chancellor Kent.

The Government of the United States was warranted by the law and practice of nations, in the declarations made in 1793 of the rules of neutrality, which were particularly recognized as necessary to be observed by the belligerent Powers in their intercourse with this country. These rules were, that the original arming or equipping of vessels in our ports by any of the Powers at war for military service was unlawful, and no such vessel was entitled to an asylum in our ports. The equipment by them of Government vessels of war in matters which, if done to other vessels, would be applicable equally to commerce or war, was lawful. The equipment by them of vessels fitted for merchandise and war, and applicable to either, was lawful; but, if it were of a nature solely applicable to war, was unlawful.

The Rules of President Washington (August 4, 1793) speak for themselves. Some of them (as the 6th) clearly exceeded any obligation previously incumbent upon the United States by international law.8. President Washington’s Rules of 1793, and other authorities.

They were as follows:

1. The original arming and equipping of vessels in the ports of the United States by any of the belligerent parties for military service, offensive or defensive, is deemed unlawful.

2. Equipments of merchant-vessels by either of the belligerent parties in the ports of the United States, purely for the accommodation of them as such, is deemed lawful.

3. Equipments in the ports of the United States of vessels of war in the immediate service of the Government of any of the belligerent parties, which, if done to other vessels, would be of a doubtful nature, as being applicable either to commerce or tear, are deemed lawful; except those which shall have made prize of the subjects, people, or property of France, coming with their prizes into the ports of the United States, pursuant to the seventeenth Article of our Treaty of Commerce with France.

4. Equipments in the ports of the United States, by any of the parties at war with France of vessels fitted for merchandise and war, whether with or without commissions, which are doubtful in their nature as being applicable either to commerce or war, are deemed lawful, except those which shall have made prize, &c., (as before.)

5. Equipments of any of the vessels of France, in the ports of the United States, which are doubtful in their nature, as being applicable to commerce or war, are deemed lawful.

6. Equipments of every kind in the ports of the United States of privateers of the Powers at war with France are deemed unlawful.

7 Equipments of vessels in the ports of the United States which are of a nature solely adapted to war, are deemed unlawful, except those stranded or wrecked, as mentioned in the eighteenth Article of our Treaty with France, the sixteenth of our Treaty with the United Netherlands, the eighteenth of our Treaty with Prussia.

8 Vessels of either of the parties not armed, or armed previous to their coming into the ports of the United States, which shall not have infringed any of the foregoing rules, may lawfully engage or enlist their own subjects or citizens, not being inhabitants of the United States, except privateers of the Powers at war with France, and except those vessels which have made prizes, &c.

(Appendix to Report of Neutrality Laws Commission, page 23; British Appendix, vol. iii.)

There can be no question that under these principles and Rules, any amount whatever of coaling by a war-steamer of a belligerent Power in a neutral port was perfectly lawful.

Similar principles will be found in all the best authorities of international law, applicable to the asylum and hospitality which the ships of war of a belligerent may receive in neutral ports without a violation of neutrality. Some of those authorities are referred to in the note at foot of this page.¹

In accordance with these principles, the Acts of Congress of 1794 and 1818 prohibited, in section 4 of the former, and section 5 of the latter Act, the “increase or augmentation of 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 any foreign Prince, &c., by adding to the number of the guns of such vessel, or by changing those on board of her for guns of larger caliber, or by the addition thereto of any equipment solely applicable to war.”9. Acts of Congress of 1794 and 1818.

In like manner the British Foreign-Enlistment Act of 1819, by section 8, prohibited the “increase or augmentation of the warlike force of any ship or vessel of war, or cruiser, or other armed vessel, which, at the time of her arrival in any part of the United Kingdom or any of Her Majesty’s dominions, was a ship of war, cruiser, or armed vessel in the service of any foreign Prince,” &c., “by adding to the number of the guns of such vessel, or by changing those on board for other guns, or by the addition of any equipment for war.”10. British Foreign-Enlistment Act of 1819.

No person in either country ever imagined that these prohibitions would be infringed by allowing foreign belligerent steam-vessels to coal ad libitum in ports of Great Britain or of the United States. It is no more true that such vessels are specially enabled to continue their cruises and warlike operations, by means of supplies of coal so received, (however great in quantity,) than that sailing-ships of war are enabled to continue their cruises and warlike operations by substantial and extensive repairs in neutral ports to their hulls, masts, sails, and rigging, when damaged or disabled, or by unlimited supplies of water and other necessary provisions for their crews.11. Universal understanding and practice

It was not by Great Britain only, but equally by France, Brazil, and other countries, that this view as to supplies of coal to Confederate vessels in neutral ports was acted upon throughout the war. In the letter already quoted of the Brazilian Minister, Señor Taques, to Mr. Webb, on the subject of the Sumter, (9th December, 1861,) he wrote:

The hospitality, then, extended to the steamer Sumter at Maranham, in the terms in which it was presently afterwards given to the frigate Powhatan, involves no irregularity, reveals no dispositions offensive to the United States. It remains to know whether, in the exercise of this hospitality, the rights which restrict the commerce of neutrals with either belligerent were transgressed. This point involves the whole question, because Mr. Webb bases his argumentation and his complaints on the construction which he gives of contraband of war as to pit-coal. He insists strongly, as did his Consul, at Maranham, and Commodore Porter, on the idea that without coal the Sumter could not have continued her cruise. If this were a reason for forbidding the purchase of coal in the market, the States called Confederate would have the right to make the same complaint against the like permission presently afterwards given to the Powhatan; and if this reason could be brought forward in respect of coal, it could also be urged in respect of drinking-water and provisions, because without these none of these vessels could pursue their service. (British Appendix, vol. vi, p. 14.)

And he proceeded to show that coal was not, jure gentium, contraband of war.

When, therefore, the second Rule of the Treaty of Washington speaks of a neutral Government being 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,” it is no more intended to take away or limit the right of a neutral State to permit the coaling of steamers belonging to the war service of a belligerent within neutral waters, than to take away the right to permit them to receive provisions, or any other ordinary supplies, previously allowable under the known rules of international law.12. Intention of the second Rule of the Treaty on this point.

With respect to the regulations made by the Queen of Great Britain on the 31st January, 1862, it is enough to say, that those regulations were voluntarily made by Her Majesty, in the exercise of her own undoubted right and discretion, as an independent neutral Sovereign, and not by virtue of any antecedent international obligation; that no belligerent Power could claim, under those rules, any greater benefit against the other belligerent, than that the rules themselves should be acted upon without partiality towards either of the contending parties; that the limitation of the quantity of coal to be supplied to the ships of war of the belligerents, in British ports, by these rules, was not absolute and unqualified, but was subject to the exercise of a power given to the Executive Authorities of the various British possessions to enlarge that limit by special permission, when they should, in the exercise of a bona fide discretion, see cause to do so; and that these rules were, in fact, honestly and impartially acted upon by the British Government throughout the war, without any connivance or sanction whatever, with or to any violation or evasion of them, even if such violation or evasion could have been shown (which it clearly could not) to be the direct or proximate cause of any belligerent operation, resulting in loss to the Government or citizens of the United States.13. British regulations of January 31, 1862.

1. Sir R. Phiillimore, in vol. iii of his work, (published in 1857,) rejects the distinction of these writers between the export of contraband and the sale of the same kinds of articles within the neutral territory. But he does not, of course, maintain that it is part of the international duty of a neutral state to prohibit or prevent dealings in contraband articles by its subjects in either of these ways.
2. Appendix to Case of United States, vol. i, p. 592.
1. Brit. App., vol. i, p. 216.
2. Ibid., vol. ii, p. 378.
1. Pages 25, 151, &c.
1. See letter, dated January 27, 1865, from Consul Morse to Mr. Adams. (United States Appendix, vol. ii, p. 175.)
1. The words “contrary to,” &c., apply, in the construction of the section, to cases (a,) (b,) and (c,) the particular provisions and prohibitions applicable to each case being those above stated.
1. British App.; vol. v, p. 242.
1. British App., vol. v, p. 256.
2. Case of the Elizabeth, British App., vol. v, p. 319–328.
1. The judgment of acquittal, when once pronounced by the Court of Admiralty in favor of the vessel, was conclusive, as a judgment in rem, preventing the possibility of her being afterward again seized as forfeited for a breach of the British Foreign-Enlistment Act, except on the ground of some new violation of the law, subsequent to that judgment. This point of law was expressly determined by the Supreme Court of the United States in the case of Gelston vs. Hoyt, already mentioned. The effect of judgments in rem by courts of admiralty is everywhere recognized by international law.
1. The proceedings of the British Government, in the case of the Tuscaloosa, turned entirely upon the question whether she was, or was not, a prize, whose entrance into a British port was prohibited by the rules publicly issued by the Queen at the beginning of the war.
1. It has been the practice of the United States to restore prizes, when brought into their ports, if made by ships illegally equipped in their territory, on proof of such illegal equipment in their courts of law; all the world having notice of their rule and practice in this respect. It has not been their rule or practice to seize or detain, on the ground of any such illegal equipment, ships afterward commissioned, and coming into their ports as public ships of war of a recognized belligerent Power.
1. British App., vol. vi, p. 14.
1. See Appendix to Case of the United States, vol. ii, pp. 486, 487, (Sumter;) ibid., pp. 550, 551, (Nashville;) ibid., pp. 614, 633, and vol. i, p. 543, (Florida;) vol. vi, p. 486, (Alabama;) vol. ii, pp. 673, 680, 713, (Georgia;) vol. iii, p. 332, &c., (Shenandoah;) also Mr. Benjamin’s instructions, vol. i, pp. 621, 624.
2. British App., vol. vi, pp. 59, 60.
1. See also Wheaton’s “Elements,” (Lawrence’s edition,) p. 720; Phillimore, vol. ii, p. 452.
2. See also Heffter, (Bergson,) pp. 275, 276, 279; and Hautefeuille, vol. ii, p. 82: Calvo, “Derecho Internacional,” ii: Pistoye et Duverdy, vol. i, p. 108.
1. Ortolan “Règles Internationales et Diplomatie de la Mer,” (4th edition,) vol. il, p. 286; Heffter “Droit International,” (Bergson’s translation,) § 149, and note (2) on p. 276; Pando, “Elem. del Derecho Internacional,” § 192; Kent, “Commentaries, vol. i, p. 118; Wheaton’s “Elements,” (Lawrence,) p. 720; Hantefeuille, “Droits et Devoirs des Nations neutres,” vol. i, p. 347; Calvo, “Derecho Internacional,” $ 634, Twiss, “Law of Nations.” vol. ii, p. 452.