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 be 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 neces

sary 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 expedi tion of the present" (or late) "Emperor of the French in 1842 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 Panarum 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 respon sibility of a State for the conduct of its citizens. The tests for discovering ciritasne 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 particuiar 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 farnished 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 8. For what pur

refers to her muni

be further from the truth than that the British Government poses Great Britain has ever (as is repeatedly, and in a manner not free from cipal law. 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.

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 Telaws, in excess of

tens as to municipal antecedent interna

tional 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.

10. Influence upon

gence of the different

Governments.

Furthermore, in considering any question of "due diligence" on the part of a national Government, in the discharge of any of its the question of dili- duties, it is unavoidably necessary, upon those general forms of national 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.

11. Objections to any theory of the

Any theory of diligence in the performance of international obliga tions which implies that foreign Governments, to whom such diligence due from obligations are due, owe no respect whatever to the distinc neutral Govern: tive Constitutions of national Governments, or have a right a universal to call for their violation in particular cases, or to dictate legislative changes at variance with them, would be fatal to

ments, which volves

hypothesis of arbi

trary power.

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?

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

12. The Argument as to the necessity of a reliance on Prerogative, for due dili

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 Constitu- of the United States, tion, to a power of summary and arbitrary control, without legal procedure, over the persons and property of its citi- gence. zens, 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.

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 en