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."

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 sov ereignty 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 bat 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. 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, (Huskisson'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.

3. Source II. Ex

Great Britain had 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 bet- press or implied enter to preserve her neutrality in cases of war between other Britain. countries, enacted a municipal law prohibiting, under penalties, (among

gagements of Great

1 Sir R. Phillimore, 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.

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 bellig erent,) "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 ju risdiction, 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. 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 hibitory municipal 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 further 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 of the belligerent with respect to the manner of enforcing it from the region of municipal to that of international law.

4. Effect of pro

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.

Washington

When, therefore, Her Majesty's Government, by the sixth article of the Treaty of Washington, agreed that the Arbitrators 5. The three Rules should assume that Her Majesty's Government had under- of the Treaty of taken 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. 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 1 Brit. App., vol. i, p. 216. 2 Ibid., vol. ii, p. 378.

6. General princi

under the first Rule expressly, and under the third by neces ples for finding what Sary implication, the existence of a "reasonable ground of diligence is due. 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 dili gence 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 nentral 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.

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.

7. The maxims

States from Sir R.

question, "Civitasne deliquerit, an cives "

It will be convenient, in this place, to examine the meaning of certain propositions extracted in the Argument of the United States cited by the United from Sir Robert Phillimore's work on international law, Phdlimore, on the 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, wasappointed 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. 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.

That

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, (ciritasne deliquerit, an cives?) is one of the most important and interesting parts of the law which governs the relations of independent States.

ร

*

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.