or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use.

Secondly. Not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men.

Thirdly. To exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties.'

These Rules were to be the guides of the Arbitrators in considering the claims of the United States. The case and counter-case of each party had been lodged before the Arbitrators met. At their first meeting they cleared away all question about the Indirect Claims by deciding that they were not within the reference; and, after considering the pleadings, the Tribunal invited the parties to make farther explanation on three subjects.

1. On the nature of the due diligence' mentioned in Article I. of the Rules.

2. On the effect of the commissions which had been granted to the vessels complained of by the Confederate States.

3. On the effect of the furnishing of these vessels with coal and supplies in British ports.

We have, accordingly, very able and interesting arguments on these points by Sir Roundell Palmer on one side, and Mr. Evarts, Mr. Cushing, and Mr. Waite on the other, printed as a supplement to the London Gazette.'

The Arbitrators ultimately decided against Great Britain, unanimously, in the case of the Alabama;' by a majority of four to one in the case of the Florida,' Sir Alexander Cockburn dissenting; and by a majority of three to two in the case of some acts of the Shenandoah,' Sir Alexander Cockburn and Viscount D'Itajuba dissenting. They decided unanimously that the tenders of these vessels must fall under the same rule as the vessels themselves. They dismissed all the other claims regarding the remaining vessels, by a majority of three to two, Mr. Adams and M. Staempfli dissenting; and by a majority of four to one they awarded a gross sum of 15,500,000 dollars to the United States in full of all claims. The four Arbitrators state their reasons in full, separately, and with more or less detail, in papers which are both able and interesting. Sir Alexander Cockburn lodged a voluminous and exhaustive protest, to which we shall immediately advert.

We should not have thought, under any circumstances, of criticising unfavourably the result at which the Arbitrators

thus arrived. It is binding on us; it is the decision of a Court selected by ourselves; and that is enough. But, indeed, taking into consideration the conditions on which alone they were entitled to determine the questions which were submitted to them, there is much to be said for it; and if they rightly construed the Treaty and the three Rules, it was almost inevitable. Notwithstanding the great ability of Lord Selborne's pleading, his chain of reasoning was rather too subtle for the audience to which it was addressed: while the American reply -able, but much less profound and comprehensive-betrays a spirit of easy confidence, which seems to argue a conviction. that the task was light, and the issue certain. There are, indeed, two separate considerations on which it might not unreasonably appear that our failure to discharge the international duty defined in the first Rule, was truly a foregone conclusion. The first of these is one of fact. We not only did not use due diligence, but we did not use any diligence, as in the performance of any international obligation. What we did was something entirely different. Our Government enforced the Foreign Enlistment Act, on their Parliamentary responsibility, as part of our municipal law. They conceived that they were only bound to measure their diligence in that respect by their duty to the Crown, and the constitutional opinion of their own people-and more they never meant to do. It was quite right of them, in the discharge of that duty, to listen to the foreign Power which had an interest in the enforcement of that Act; and they did listen to it, and gave the representations of their Minister reasonable effect. But they never supposed that they were doing so in the discharge of international obligation; and their conduct, which was not intended to be measured by any such standard, of course fell short of it. Had we been bound by treaty to prevent the departure of such vessels, it is needless to say that much more would have been incumbent on us than we did, or intended to do. We should then have taken on ourselves the burden of a far more extensive and efficient system of inquiry, instead of leaving that duty, as we for the most part did, to be performed by the American authorities in this country. This could not have been done without entailing on us much expense, annoyance, and vexation; but if we had been bound to it by treaty, there is little doubt that we should have set about the work in a different way. But as the Government had not undertaken any such duty, and had adjusted their proceedings to the scale of municipal administration, it is not surprising that, tried by a new and unexpected test, they failed to come up to the

standard. It was not due diligence,' but loyal earnestness and good faith, which we thought were truly required of us, and which we fully rendered: but that was found not sufficient to satisfy the three Rules.

We do not think that there was much force in one part of the discussion, on which much learning and ingenuity was expended. It was contended by our representative, and the argument occupies a considerable portion of Sir Alexander Cockburn's protest, that Great Britain could not be responsible for the defects of the Foreign Enlistment Act, and that a free Government like ours could not, on its own authority, go beyond what the law sanctioned. This is quite true, but was hardly an answer to the complaint of the United States. That the Foreign Enlistment Act was a very imperfect piece of mechanism if intended for the enforcement of an international obligation, is certain; but the substance of the complaint lay in the neglect of a thorough and vigilant initiative. Had we supposed that we lay under, not a duty of comity and good fellowship, but an obligation on our part which corresponded to a right on that of the United States, there was more in our power, which did not depend on the efficiency of the Foreign Enlistment Act. The distinction is a very obvious and vital one. In the administration of the municipal law, the Executive is entitled to keep within the letter of penal statutes, and to be careful in the first instance that private interests shall not suffer, unless a breach of the law be clearly established. But in cases of public obligation to other States, as in all public emergencies, the arm of the Executive is a long one; and many things might be justifiable in such circumstances, even at the risk of having to compensate private individuals, or, if the crisis were imminent, of relying on an indemnity from Parliament. In administering the Foreign Enlistment Act as a municipal law, notwithstanding the indecorous imputations which pervaded the pleadings of the United States, our thorough loyalty and good faith were clearly established. But we can feel no surprise that the Arbitrators should have found our proceedings defective, as in fulfilment of an international obligation, which required for its discharge not loyalty and good faith merely, but a standard of vigilance and exertion by which we never meant to be measured. It was of no avail that we showed, as appears to have been done conclusively, that we had expended more energy and anxiety in enforcing the spirit of the Act than had ever been evinced by any other neutral nation. That was held insufficient to liberate us, nor can we wonder that it was so.

The second reason for holding our liability a foregone conclusion was probably that on which the Arbitrators mainly proceeded. The obligation of due diligence' necessarily assumes a relative and antecedent duty, for the discharge of which due diligence is, in certain circumstances, held as an equivalent. There can be no obligation of diligence or care to accomplish a result unless there be also a duty and responsibility in regard to the result itself. The Arbitrators held that we lay under an obligation to prevent these vessels from escaping; and that this was the substance of the first of the three Rules. It was certain that this duty had not been performed, and a presumption-more or less strong according to circumstances-was thereby raised that proper care and diligence had not been used to insure its performance. The question put to the Arbitrators was not whether we had used due diligence to enforce the Foreign Enlistment Act, but whether we had done due diligence in the discharge of the duty, which they held to be admitted, of preventing the departure of the vessels. It was conceded, on our part, that we were bound internationally to reasonable care and exertion in enforcing the provisions of the statute; but it was maintained that we were bound to nothing more. But our antagonists, taking advantage of the general words of the first Rule, would not treat the question in that light. They argued that the obligation applied not to the provisions of a statute, but to a fact, namely, the prevention of the departure of the vessels. They were concerned, they said, not with the provisions of the Act, which they declined to consider, but with the admitted duty; and as that had not been performed, it lay with us to show that due diligence could not have performed it.

The argument of the United States went further. They maintained that the obligation expressed in the Rule was coextensive with the law of nations independently of the Rule, and that it was of such a nature that it must be presumed that every sovereign State had power to fulfil it: that the diligence required was to find effectual means, and to use them for the attainment of that end; and that if the end was not attained the failure could only be attributed to the neglect to take due and necessary precautions. If, therefore, the vessels departed, the conclusion of neglect on our part followed as matter of course, and no further subject remained for discussion or inquiry.

It would rather appear that the Arbitrators proceeded on this view. Without excluding Great Britain from showing. that no amount of vigilance or care could have prevented the

result, they virtually rested her liability on the fact that the escape of the vessels was not prevented. Thus in the preamble of the award, which contains the rationes on which the award itself is founded, the decision of the Arbitrators in regard to the Alabama' is, that the British Government had failed to do due diligence to prevent her escape; and especially had omitted, notwithstanding the warnings and official representations of the United States during the construction of the said 290, to take, in due time, any effective measures of prevention, and that those orders which it did give at last for the detention of the vessel were issued so late that their ' execution was not practicable.'

Thus the Arbitrators simply looked at the fact, that no effective measures of prevention were taken,' assuming that as there was a duty to discharge, the Government was bound to find effectual means of discharging it; and they specially found that we were not liberated by the considerations addressed to them to show that the first Rule of the Treaty did not imply any absolute or imperative obligation to prevent the departure of the vessels, and that due diligence' must have regard to the provisions of our municipal law.

Viewed as a question of construction, we cannot say that the words of the Treaty might not reasonably and fairly be so read; for, as we have been publicly informed by one of the negotiators, it was drawn up with a studied disregard of legal precision. No doubt the sense which the British Commissioners wished to express was the restricted and limited meaning for which our counsel contended. But the real ambiguity lay in the idea intended to be expressed. Perhaps in restricting the international obligation which was to be the subject of the Arbitration to the due diligence' of the Treaty, the British Commissioners thought that they excluded the duty of prevention, in its absolute sense, from the concessions. But this was a distinction not easily expressed in a convention which was to be judicially interpreted, without the use of language which would reduce the obligation itself to what has been termed the vanishing point; to this of course the United States would never have consented. There is, in fact, a logical fallacy in the terms of the Treaty which would have been avoided on either side, had either been to choose. An obligation to use due diligence to accomplish that which the person obliged is not bound to accomplish, involves a juridical confusion. The term itself'due diligence'--pre-supposes the duty of accomplishing the object, and only affords a reasonable defence against liability in the event of the object not being accomplished. It was