can be discharged by subsequent proceedings, such as are here supposed, of others parties. But if it be meant to suggest that, in any such case, the default of the neutral power is not limited to the acts done or omitted to be done on its part, within its own territory, but is to be deemed a continuing default, or series of defaults, during the whole or some part of the subsequent proceedings of the offending vessel beyond its jurisdiction, the British government must demur altogether to such a doctrine, as unknown to international law and opposed to reason and principle.

ARGUMENT OF THE UNITED STATES.-EFFECT ASCRIBED TO BRITISH LAWS AND REGULATIONS AS INTERPRETATIONS OF INTERNATIONAL LAW.

regulations as inter

national law.

The differences which exist between the British government and that of the United States arise partly in the statement of prin- Effect ascribed to ciples, but more in the application of them to facts admitted British laws and or proved. The latter government has prefixed to its twelve pretations of interpropositions a lengthened argument, which appears to be designed to prove that, if not true in themselves, they are true against Great Britain; and that, if true in themselves, they ought to be applied against her with exceptional and pecular rigor. This argument appears to the British government to contain errors of the gravest kind. The source of these errors is manifest. The Government of the United States is not satisfied to rely upon the three rules embodied in the treaty, coupled with the general principles of international law not inconsistent with them, as sufficient to support the claims urged against Great Britain. It desires, therefore, to persuade the arbitrators to apply to the conduct of Great Britain, not the general standard of neutral obligation which, under corresponding circumstances, they would apply to the United States, or to any other power which had accepted those rules, but a stricter and more rigorous standard, drawn from the municipal laws of Great Britain, from administrative acts of the British government, or from declarations of British statesmen.

The positions contended for by the United States are in substance as follows:

1. The municipal laws of Great Britain and the administrative acts of her government are to be regarded as defining as against herself her conception of her international duties. What these laws or acts prohibit, she must be assumed to regard as prohibited by the law of nations, and by that standard she must be tried. In short, where her conception of international duty, thus measured, appears to fall short of the common standard, it is to be disregarded; in every other case it is to be assumed as the measure of what she owes to other nations, though not as the measure of what other nations owe to her.

2. Independently of this theory, Great Britain is under an international obligation to *execute her municipal laws and enforce her proclamations and ordinances where they are for the advantage of other nations.

3. In the performance of these duties Great Britain is bound to use "due diligence," by which is meant an exercise of active vigilance and an effectual use of all the means within the power of the government. 4. Failing to use this due diligence, Great Britain is bound to make compensation for any injury resulting from such failure.

It is necessary to state these positions clearly, because they are expressed with some vagueness in the Case of the United States.

14 A-II

Such, then, is the general measure of neutral duties which the Government of the United States has adopted, and endeavors to persuade the arbitrators to adopt, in support of its claims against Great Britain.

To state the first of this series of positions is to confute it. If it were a true assumption that the municipal laws of a state, wherever they prohibit acts which may affect the security or interest of other states, must have been founded, not on considerations of policy and expediency, but on conceptions of international obligation, it would nevertheless be impossible to contend, with any show of reason, that, by these conceptions, and not by the general rules of the law of nations, the state was to be judged in any international controversies in which it might become engaged. Such a rule, it is evident, would produce the most fantastic. consequences. In place of a common and equal standard of obligation, we should then have a varying and unequal one, varying with the nations to which it was applied and with the notions of duty which they might from time to time entertain. It would be as reasonable to contend that a question between private litigants ought to be decided, not by the law, but by what the defendant had supposed to be the law, provided that the plaintiff could show that the difference was in his own favor.

It is not, however, a true assumption that whatever the laws of a state prohibit in matters affecting the security or interests of other states, it must have held itself bound to prohibit by force of an international obligation. This is a hypothesis as groundless as it is unreasonable; for the primary and immediate object of municipal law is the protection of the security and interests of the state itself and its citizens, and it is clear that, with a view to this object, it may be, and frequently is, expedient to prohibit, in relation to other states, acts not prohibited by the law of nations. The theory of the United States would assume that this never is or can be expedient.

This observation applies with all its force to those municipal laws which are sometimes styled "neutrality laws." Such laws belong to the class which, in the codes of some European nations, are described as having for their object the protection of the internal and external security of the state. Thus, by the penal code of France it is made an offense to levy or enroll soldiers without the authority of the government, and penalties of various degrees of severity are denounced against any persons who, by acts not approved by the government, may have exposed French citizens to reprisals or the state to a declaration of war. These provisions have been adopted in the penal code of the kingdom of Italy, in that of the Netherlands, and by other countries.

The law known in England as the foreign-enlistment act of 1819 belongs to the same class. The considerations on which it is founded are thus stated in the preamble:

Whereas the enlistment or engagement of His Majesty's subjects to serve in war in foreign service without His Majesty's license, and the fitting out and equipping and arming of vessels by His Majesty's subjects without His Majesty's license, for warlike operations in or against the dominions or territories of any foreign prince, state, or potentate, or persons exercising or assuming to exercise the powers of government in or over any foreign country, colony, province, or part of any province, or against the ships, goods, or merchandise of any foreign prince, state, potentate, or persons aforesaid, or their subjects, may be prejudicial to and tend to endanger the peace and welfare of this kingdom; and whereas the laws in force are not sufficiently effectual for preventing the same: be it therefore enacted, &c.

Laws of this kind serve, among other purposes, that of enabling or assisting the state which enacts them to discharge, when a neutral in war, the duties, and protect the rights, of neutrality, and they may

therefore, with perfect propriety, be described as having that object in view. But their main, though not always their sole, purpose is to restrain whatever may tend to imperil the relations of the state with foreign powers; they are framed on those considerations of expediency by which all legislation is governed; and, as they may stop short in some respects of the provisions of international law, so they may transcend them in others.

[S]

It has sometimes been argued, indeed, though not with success, that the law of nations should be regarded as furnishing an interpretation of the foreign-enlistment act, *and confining its scope to acts which can be shown independently to be within the prohibitions of that code. But that the act should, on the contrary, be viewed as extending the prohibitions of the law of nations, was never, to the knowledge of Her Majesty's government, contended by any one, and such an argument would certainly receive no attention from any judicial tribunal.2

The Government of the United States has appealed, in support of this erroneous notion, to certain English authorities; and the manner in which it has referred to them cannot be left unnoticed. The following sentence is given as a quotation from a dispatch signed by Earl Rus

See the argument of the counsel for the defendants in the Alexandria case, (Appendix to the Case of the United States, vol. v, pp. 183 et seq.)

A construction contrary to that which the United States contend for against Great Britain has been placed by the Government of the United States on its own law. In 1841 the then Attorney-General was called upon to advise whether the building in the United States of vessels of war for the government of Mexico, to be employed against Texas, was prohibited by the act of 1818. Mr. Legaré advised (whether rightly or wrongly is not material) that it was so, on the following grounds: "The reasoning on this subject is shortly this: the policy of this country 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 of the belligerents, 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 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. The memorable act of 1794 consecrated this policy at an early period of our Federal history, and that act was only repealed in 1818 to give place to an equally decided expression of the legislative will to the same effect. Whatever may be thought of the spirit and policy of the law, its scope and objects are too clear to be misunderstood; and I am of opinion that the case stated by Mr. Curtis falls fully within the purview of the third section."

Mr. Legaré afterward wrote a further opinion to the same effect, holding that "all trading with a belligerent in ships of war, ready equipped for service, was contrary to the law of the United States." "The accompanying prohibition in the statute of all enlistments in the United States furnishes a strong ground to support this opinion. Such enlistments (if voluntary) are no more against the law of nations than equipping and furnishing ships; yet it will not be pretended that any attempt to enlist an American citizen within our borders, however covert and cautious, and wherever the service is to be rendered, or the first step toward it taken, is not utterly prohibited by the act. However popular opinion may have recently changed on so important a subject, this act, like that of 1794, was intended to secure, beyond all risk of violation, the neutral and pacific policy which they consecrate as our fundamental law. The framers of both acts knew perfectly well that they were denying to our citizens rights which the law of nations allowed them to exercise in good faith for commercial purposes. They knew the price they were paying for peace, but they were willing to pay it. This act is a proof of it.”— (Opinions of Attorneys-General of the United States, vol. iii, pp. 738, 741; Appendix to British Case, vol. v, pp. 360, 363.)

sell: "That the foreign-enlistment act is intended in aid of the duties * of a neutral nation." What were the words of Earl Russell? They were these: "That the foreign-enlistment act, which was intended in aid of the duties and rights of a neutral nation, can only be applied," &c. The meaning of the sentence is altered by leaving out two of the most important words. Again, the report of a commission appointed in 1867 to consider the laws of Great Britain "available for the enforcement of neutrality," is thus referred to:

The tribunal of arbitration will search the whole of that report, and of its varions appendixes, in vain to find any indication that that distinguished body imagined, or thought, or believed that the measures which they recommended were not "in full conformity with international obligations." On the contrary, the commissioners say that, so far as they can see, the adoption of the recommendations will bring the municipal law into full conformity with the international obligations. Viewing their acts in the light of their powers and of their instructions, the United States feel themselves justified in asking the tribunal to assume that that eminent body regarded the acts which they proposed to prevent by legislation as forbidden by international law,

What is the passage which the Government of the United States has referred to, but has refrained from extracting? It is this:

In making the foregoing recommendations we have not felt ourselves bound to consider whether we were exceeding what could actually be required by international law, but we are of opinion that, if those recommendations should be adopted, the municipal law of this realin, available for the enforcement of neutrality, will derive increased efficiency, aud will, so far as we can see, have been brought into conformity with your Majesty's 'international obligations.3

[9] *Thus by leaving out the words in which the commissioners observe that their recommendations may exceed the requirements of international law, and by using in one sense words which (as the context proves) they employed in another, they are represented as saying the very thing which they expressly guarded themselves from being supposed to say, namely, that all the acts which they proposed to prohibit were, in their judgment, already forbidden by international law.1

The Government of the United States further assumes that the same false principle is to be applied not only to laws, but to the proclamations, orders, and regulations issued during a war by neutral nations. These also are to be supposed to prohibit nothing which the government that issues them does not believe to be interdicted by international law.

Her Majesty's government had supposed that the nature of these acts and orders was a thing perfectly well understood by the United States, as it certainly is by maritime nations in general. They are universally understood to be acts done in the free exercise of that right which every sovereign state possesses to regulate the access of belligerent vessels to its ports. They convey no admission whatever that

1 Case of the United States, p. 108.

2 Ibid., p. 176.

3 See Report of the Commission, p. 5; Appendix to British Case, vol. iii; Appendix to Case of the United States, vol. iv, p. 82.

4 At page 117 of the Case, the judge of the high court of admiralty (Sir R. J. Phillimore) is cited as having stated (very justly) that the act of 9th August, 1870, has the effect of enabling the British government to fulfill more easily than heretofore that particular class of international obligations which may arise out of the conduct of Her Majesty's subjects toward belligerent foreign states with which Her Majesty is at peace. No doubt it has. This quotation is as irrelevant as those introduced at pp. 118-122, in order to prove that the law of nations has been regarded as forming part of the common law of England, a proposition sometimes stated too largely, but which, correctly understood, has been denied by no one, and in no way assists the argument of the United States.

what they enjoin is enjoined, or that what they prohibit is prohibited, by the law of nations. In some cases this may be so; commonly it is not so. But the acts themselves, whether they happen to coincide with rules of international law or not, are voluntary and discretionary. They are done in exercise of a right, not in performance of an obligation.

The foregoing remarks have been drawn from the British government by the attempt made in the Case of the United States to introduce into this controversy an assumption which is clearly erroneous: the assumption, namely, that whatever is or was prohibited by British law or by the orders or proclamations of the British government ought, as against Great Britain, to be held to be prohibited by the law of nations.

Thus it is asserted' that all the acts prohibited by the 2d, 5th, 6th, 7th, and 8th sections of the foreign-enlistment act must be held, as against Great Britain, to be acts which a neutral government "ought," or "was bound," not to permit to be done within its jurisdiction, and were violations of the international duties "of a neutral;" that the foreign-enlistment act defines and recognizes the "principles and duties" "obligatory on the nation in its relations with other powers;" that the act of 1870 was "intended, at least as against the British government, as a re enactment of the law of nations;" that the restrictions placed by the British government on the stay of belligerent vessels in its ports are to be regarded as commanded by international law, instead of being, what they really were, regulations issued in the free exercise of the sovereign rights of a neutral power; lastly, that the supposed rules or principles of international law thus extracted from British laws and ordinances may and ought to be applied by the tribunal against Great Britain, without being recognized by it as applicable under like circumstances against other neutral nations in general.

Her Britannic Majesty's government declares, on the contrary, in the most explicit manner, that the law to which it has submitted its conduct, and by which it has consented to be tried, is the international law recognized in common by all civilized states, coupled with the three rules embodied in the treaty; that this law is to be gathered, not from British statutes or ordinances, but from the general consent of nations, evidenced by their practice; and that the laws and ordinances of Great Britain herself can be appealed to only for the single purpose of proving that her government was armed with sufficient power to discharge its international duties, and not for the purpose of extending, any more than of restricting, the range of those duties.

ARGUMENT OF THE UNITED STATES.-ALLEGED DUTY OF A GOVERNMENT TO ENFORCE ITS OWN LAWS AND REGULATIONS.

force its own laws

At page 211 of its Case, the Government of the United States lays down, as against Great Britain, the general proposition Alleged duty of a [10] that a neutral is bound to enforce its laws and its ex- government to en ecutive proclamation." It appears to contend for the and regulations. same proposition at page 108. But, at pages 122, 123, it expressly guards itself against being supposed to admit that Great Britain, against whom this supposed principle is pressed, would herself, if the case were reversed, be entitled to the advantage of it against the United States or against other nations. The arbitrators, therefore, are solicited to assume that Great Britain was bound to enforce her laws and ordi

1 Case of United States, pp. 109, 110, 118, 125, 210, 212.