under the laws of Customs or Excise, or under the laws of trade and navigation.

The powers of seizure (to be followed afterward by proceedings in the Court of Exchequer for the condemnation of the vessel) which from 1860 to 1866 were available for the purpose of prevention under this statute, are contained in section 223 of the British Customs Law Consolidation Act of 1853, and in section 103 of the Merchant Shipping Act of 1854. By section 223 of the Customs Act, power was given to any officer of Her Majesty's Navy, duly employed for the prevention of smuggling, and on full pay, or any officer of Customs or Excise, to seize or detain, in any place, either upon land or water, all ships and boats, and all goods whatever, liable to forfeiture. By section 103 of the Merchant Shipping Act, power was given to any commissioned officer on full pay in the naval service of Her Majesty, or any British officer of Customs, to seize and detain any ship, which might, either wholly or as to any share thereof, have become liable to forfeiture under that Act.

The papers before the Arbitrators contain several instances of the employment of officers in Her Majesty's naval service, both at Liverpool and at Nassau, for the execution of duties connected with the enforcement of these laws. In most cases those duties were intrusted in practice to the officers of Her Majesty's Customs; but the whole naval force of the British Kingdom might, in case of need, have been lawfully employed, within British jurisdiction, in aid of those officers. When the Georgia was reported to have gone to Alderney, a British ship of war was sent there after her; and if the commander of that ship had found her in British waters, and had ascertained the existence of any grounds warranting her detention, she would have been undoubtedly detained by him. Whenever evidence was forthcoming of an actual or contemplated illegal equipment of any vessel within British jurisdiction, there was ample preventive power under these statutes. Without such evidence, no rule of international law gave a foreign State the right to require that any vessel should be prevented from leaving the British dominions.

19. The doubtful

struction of the British Foreign Enlist

of the British Gov

The United States have referred, in their Argument, to the question raised as to the interpretation of the British Foreign-Enlistment Act before the English Court of Exchequer, in the case points as to the conof the Alexandra, and to the opinion in favor of its more ment Act never afrestricted construction, which prevailed in that case; the fected the diligence judges being equally divided, and the right of appeal being ernment. successfully contested on technical grounds. But in another case (that of the Pampero) a Scottish Court of equal authority adopted the more extended construction upon which the British Government, both before and after the case of the Alexandra, always acted; and, as no vessel was ever employed in the war service of the Confederate States, which was enabled to depart from Great Britain by reason of this controversy as to the interpretation of the Act, it would seem to be of no moment to the present inquiry, even if it had related to a point, as to which Great Britain owed some antecedent duty to the United States by international, as distinguished from municipal, law. But the controversy did not in fact relate to any such point. There was no question as to the complete adequacy of the provisions of that Statute to enable the British Government to prevent the departure from British jurisdiction of any warlike expedition, or of any ship equipped and armed, or attempted to be equipped and armed, within British jurisdiction, for the purpose of being employed to cruise or carry on war against the United States. The sole question was, whether the language of the prohibition

comprehended a ship built and specially adapted for warlike purposes, but not armed or capable of offense or defense, nor intended so to be, at the time of her departure from British jurisdiction. All the judges were of opinion that the departure of such a ship from neutral territory was not an act of war, was not a hostile naval expedition, and was not prohibited, inter gentes, by general international law; and two of them thought that, not having any of those characters, it was also not within the prohibitions of the Statute; while the other two were of opinion that the existence of those characters was not, under the words of the law, a necessary element in the municipal offense.

20. Baron Bramwell's view of the in

The language of Baron Bramwell, an eminent British ternation, fedis Judge, (afterwards a member of the British Neutrality tinct from municipal Laws Commission,) explains clearly and forcibly the view with that of the of the case, as it would have stood under international law only, which was taken by the entire Court:

obligation, agreed

American Attorney-
General in 1841.

If we look at the rights and the obligations created by international law, if a hostile expedition, fitted out by a State, leaves its territory to attack another State, it is war; so also, if the expedition is fitted out, not by the State but with its sufferance, by a part of its subjects or strangers within its territories, it is war, at least in the option of the assailed. They would be entitled to say, either you can prevent this or you cannot. In the former case it is your act, and is war; in the latter case, in selfdefense we must attack your territory, whence this assault on us proceeds. And this is equally true, whether the State assailed is at war or at peace with all the world. The right in peace or war is not to be attacked from the territory of another State: that that territory shall not be the basis of hostilities. But there is no international law forbidding the supply of contraband of war; and an armed vessel is, in my judgment, that and nothing more. It may leave the neutral territory under the same conditions as the materials of which it is made might do so. The State interested in stopping it must stop it as it would other contraband of war, viz, on the high seas.

Not only is the doctrine thus stated conformable to all the authori ties of international law, to which reference has been made in the earlier part of this paper, but the same doctrine was officially laid down by Mr. Legare, then Attorney General of the United States, in December, 1841, when advising his Government that two schooners of war, built and fitted out, and about to be furnished with guns and a military equipment, in New York, for Mexican service against Texas, ought to be treated as offending against the Act of Congress of 1818. He says:

The policy of this country (the United States) 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 belligerent, 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 can 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. (British Appendix, vol. v, p. 360.)

21. On the argu

V.-On the preventive powers of the Laws of Foreign Countries. (D.) It now becomes necessary to observe upon the proposition, that "all other Governments, including the United States, prements as to due dili- vent peril to the national peace through means of preroga United States from tive force, lodged by implied or express constitutional law in the hands of the Executive." In other words, a general want of diligence is sought to be established against Great Britain,

gence derived by the

foreign laws.

by an argument derived from the laws of the United States, and of other countries, with a view to show, by the comparison, the insufficiency of the preventive powers of British law.

To the whole principle of this argument, so far as it relates to matters. not prohibited by the general law of nations, Great Britain demurs; and, even with respect to matters which are prohibited by that general law, it is obvious that nothing can be more fallacious than an attempt at comparison, which, without exact and special knowledge of the whole complex machinery of laws, judicature, and legal procedure, and political and civil administration, which prevails in each different country, can pretend to decide on the relative efficiency of those various laws for political purposes. The materials, however, on which reliance is placed for this comparison in the American Argument, are so manifestly scanty and insufficient as to make the answer to this part of the argument simple, even if it were in principle admissible.

As to the laws of France, Italy, Switzerland, Portugal, Brazil, Belgium, and the Netherlands, and, in fact, of almost every country mentioned in the Argument, except the United States, it can hardly be thought that the Counsel for the United States understand these laws, which are all substantially the same, better than M. Van Zuylen, the Netherlands Minister, who has to administer them, and who, in reply to certain inquiries from the British Chargé d'Affaires at the Hague,

wrote:

There is no code of laws or regulations in the Kingdom of the Netherlands concerning the rights and duties of neutrals, nor any special laws or ordinances for either party on this very important matter of external public law. The Government may use Articles 84 and 85 of the Penal Code, but no legislative provisions have been adopted to protect the Government, and serve against those who attempt a violation of neutrality. It may be said that no country has codified these regulations and given them the force of law; and, though Great Britain and the United States have their Foreign-Enlistment Act, its effect is very limited.

This language is criticised in the American Argument as "inaccurate," but it is in reality perfectly exact, for such provisions as those of Articles 84 and 85 of the French Penal Code cannot possibly be described as either prohibiting or enabling the Government to prevent those definite acts and attempts against which it was the object of the British and the American Foreign-Enlistment Acts to provide. These Articles are punitive only, and they strike at nothing but acts, unauthorized by the Government, which may have "exposed the State to a declaration of war," or "to reprisals." The language of the corresponding laws of almost all the other States, except Switzerland, is admitted to be similar. That of Switzerland prohibits generally, under penalties, all "acts contrary to the law of nations," while it regulates (by enactment, the particular provisions of which are not stated) the enlistment of troops within the Swiss Federal territory."

No man having the least knowledge of the laws and constitutional systems of Great Britain and the United States can be supposed to imagine that enactments conceived in these vague and indefinite terms, if they had been adopted by either of those countries, would have been of the smallest use for the purpose of preventing such acts as those of which the Government of the United States now complain; much less that they would have been comparable in point of efficiency with the definite means of prevention provided and directed against attempts, as well as acts, by the Acts of Congress and of Parliament, which were actually in force in those nations respectively.

But it is assumed, in the Argument of the United States, that these special laws were in all these countries supplemented by an elastic and

arbitrary executive power. Of this assertion no proof in detail is at tempted to be given; nor is it believed to be consistent with the fact. If the French and other Governments issued executive Proclamations forbidding their subjects to do acts of the nature now in question, so also did the Queen of Great Britian. By Her Majesty's Proclamation of Neutrality, (13th May, 1861,) she "strictly charged and commanded all her subjects to observe a strict neutrality during the hostilities" (between the United States and the Confederates,) " and to abstain from violating or contravening either the laws and statutes of the realm in this behalf, or the law of nations in relation thereto;" and she warned them, “and all persons whatsoever entitled to her protection ”—

"That if any of them should presume to do any acts in derogation of their duty, as subjects of a neutral sovereign, in the said contest, or in violation of the law of nations in that behalf, as for example, and more especially, by entering into the military service of either of the said contending parties as commissioned or non-commissioned officers, or soldiers; or by serving as officers, sailors, or marines, on board any ship or vessel of war, or transport, of, or in the service of, either of the said contending parties; or by engaging to go, or going, to any place beyond the seas with intent to enlist or engage in any such service, or by procuring, or attempting to procure, within Her Majesty's dominions, others to do so; or by fitting out, arming, or equipping any ship or vessel to be employed as a ship of war, or privateer, or transport, by either of the said contending parties;" (or by breach of blockade, or carriage of contraband,) "all persons so offending would incur and be liable to the several penalties and penal conse quences," by the (British Foreign-Enlistment) Act, "or by the law of nations, in that behalf imposed or denounced."

If this Proclamation referred (as it did) to British law in some cases, and to the law of nations in other cases for its sanctions, the French and all other Proclamations of the like character also had reference, for the like purposes, to their own respective national laws, and to the law of nations. Whatever surveillance may have been exercised by the French Government, according to the particular provisions of their own laws, over the builders of the rams intended for the Confederates, at Nantes and at Bordeaux, the construction of those vessels was at all events not stopped; and one of them, the Stonewall, did eventually pass into the hands of the Confederates; nor was it by any power of the French Executive, or of the French law, that she was afterward intercepted, before she had actually committed destructive acts against the shipping of the United States. The Georgia received her armament in French waters. Commodore Barron, "the head of the Confederate Navy Department in Europe," was established in Paris; a Frenchman residing in Paris, named Bravay, intervened in the Confederate interest as the ostensible purchaser of the rams at Birkenhead, and claimed them, against the seizure of the British Government, without any aid from French authority to Her Majesty's Government in their resistance to that claim. These facts are not mentioned as implying any want of proper diligence on the part of the French Government; but to show, that even in that country, at a time when the Imperial Government exercised much larger powers of control over public and private liberty than could ever be possible in Great Britain, (or, as it is believed, in the United States,) the Executive either did not possess, or did not find it practicable to exercise with the preventive efficacy which the American Argument seems to deem necessary, any merely discretionary powers of interference.

1

VI. On the Preventive Powers of the Law of the United States. The comparison between the law of Great Britain and the law of the 1 See letter, dated January 27, 1865, from Consul Morse to Mr. Adams. (United States Appendix, vol. ii, p. 175.)

22. On the compar

United States be

United States is more easy; because they have a very close historical and juridical relation to each other; and because ison made by the both these nations exclude from their constitutional systems all forms of arbitrary power.

tween their own laws

and British law, in order to prove a gen eral want of due dil

Britain.

What then are the preventive powers, found in the sev-igence against Great eral Acts of Congress from time to time passed upon this subject in the United States, and which are admitted (at page 27 of the American Argument) to be the only preventive powers which the Executive Government of the United States of right possesses? How have those powers been used in practice? And with what degree of success and efficiency so far as regards the practical object of prevention? This inquiry is directly challenged in the Case, in the Appendix to the Counter Case, and in the Argument of the United States, for the purpose (as it would seem) of showing that if the law of Great Britain had been equal in efficiency to that of the United States, and had been enforced with an equal degree of diligence, the present causes of complaint might not have arisen. Great Britain has no reason to shrink from the test of diligence so tendered on the part of the United States; nor, in accepting it, is it just to impute to her Government an intention to recriminate, to introduce any irrelevant topics, or to call in question the general good faith of the Government of the United States, in the conduct of its relations with foreign Powers.

23. Examination powers of the Amer

of the preventive ican Government, unCongress for the

der their Acts of

preservation of neu

The only preventive powers material to this question, which were expressly or by implication conferred by the several Acts of Congress relating to this subject, are contained in (1) the third section of the Act of 1794, amended by the first section of the Act of 1817, and re-enacted, on the repeal of those Acts, by the third section of the Act of 1818; (2.) The sev- trality. enth section of the Act of 1794, re-enacted by the eighth section of the Act of 1818; (3.) The second section of the Act of 1817, re-enacted by the tenth section of the Act of 1818; and, lastly, the third section of the Act of 1817, re-enacted by the eleventh section of the Act of 1818.

It will be sufficient to consider these different powers as they stand in the latest Act, by which the provisions of the two former were consolidated, and the former Acts themselves repealed.

(1.) Section 3 of the Act of 1818 made it penal for any person, within the limits of the United States, to "fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed, or knowingly to be concerned in the furnishing, fitting out, or arming, of any ship or vessel," with the intent that such ship or vessel should be employed in any foreign belligerent service; and forfeited every such ship or vessel, with her tackle, &c.; one-half to any informer, and the other half to the use of the United States.

This clause agrees in substance with the seventh section of the British Foreign-Enlistment Act; except that, in the definition of the principal offenses under it, it always couples armament with equipment, which the British clause, using the word "or" ("equip, furnish, fit out, or arm," &c.) instead of the word "and," ("fit out and arm," &c.,) throughout disjoins; and it omits to state by what officers, or in what manner, seizures under it are to be made, the British clause expressly empowering such seizures to be made by Her Majesty's naval officers, or officers. of the Customs or Excise, authorized to make seizures under the Customs and Navigation Acts. Inasmuch, however, as forfeiture necessarily implies the power of seizure, this clause (though the means of seizure are not here defined) is one of preventive efficacy. There is a further dif ference, which it seems right to mention, (as it has been mentioned by