gaging 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 Eulistment 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 publie 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 uncondemned 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 upoù 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 bel ligerent 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 Govern-, ment 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, 1864, 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. 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 ForeignEnlistment 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 act or 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 doc

trine 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 As none of these (independent) States

the civilized inhabitants of the world.

*

**

will allow a superiority in the other, therefore, neither can dictate nor prescribe the

Pages 25, 151, &c.

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 contradiets, 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 dominious? 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.

15. The American

(B.) In the following passages of their Argument, the American Counsel appear to contend that the British Government must be view of an a priori deemed to have been wanting in due diligence because they proceeded by law, and not by suspension of law, or by pre

obligation on this

subject.

rogative without law.

(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 66 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."

16. The British

common law, to use the civil, military,

acts of war within

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 Crown has power, by United States, in the true and proper sense of those words, and naval forces of had been attempted within British territory, it would not the realm to stop have been necessary for the British Government either to British territory. 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 legis lation; 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.

17. The assertion

that Great Britain

and not on preven

(C.) The next propositions are, that "Great Britain alone pretends that punitive law is the measure of neutral duties"-that of the United States the powers vested in the Executive Government of Great relies on punitive, Britain by the Foreign Enlistment Act of 1819 were punitive tive law, disproved. 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."

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.

18. The preventive

The answer to proposition (C) is, simply, that it is without foundation in fact. Great Britain has never pretended that punitive power of the British law is the measure of neutral duties; it is not true that the law explained. 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.

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