United States. On this point, however, Her Britannic Majesty's government has but one remark to make. Whatever qualifications these writers might be found to possess for forming a judgment on the question, if they had been acquainted with the facts-a matter on which Her Majesty's government has no opinion to express-they are not the persons selected as arbitrators in this case. The eminent persons who have been so selected will form their conclusions under the definite sense of responsibility proper to a high and regularly constituted judicial tribunal, after hearing both sides, and upon a full and complete knowledge, such as no one can possibly have possessed before, of all the facts of the case; and Her Britannic Majesty's government is well assured that they will feel it to be, as it is, their first duty to form those conclusions for themselves, upon the facts and arguments brought before them, absolutely uninfluenced by any opinions which any writer, be he who he may, has permitted himself to express, whether on one side or on the other.

It is well known to the arbitrators that when, on former occasions recorded in history, jurists have undertaken to determine the merits of international questions actually in controversy, the judgments so pronounced have been held questionable, as open to the suspicion of partisanship, and have in fact been often influenced by a bias, the precise causes of which it might be difficult to ascertain. This alone is a sufficient reason why weight should not be assigned to opinions put forward post litem motam.

*PART II.

ARGUMENT OF THE UNITED STATES ON NEUTRAL DUTIES.

PROPOSITIONS AFFIRMED BY THE UNITED STATES.

PART II-ArguStates on neutral du

In Part III of the case of the United States an endeavor has been made to furnish the arbitrators with a definition of the duties which Great Britain, as a neutral power, was bound to ment of the United observe toward the United States during the war. At the ties. close of an elaborate dissertation on this subject, the Government of the United States sums up the conclusions which it conceives itself to have established, in the form of twelve proposi- firmed by the United tions. These propositions it regards as governing the ques tions involved in the claims which it submits to the arbitrators.

Propositions af

States.

Her Majesty's government believes that it will adopt the course most convenient to the tribunal, by explaining at once and in the first place how far it assents to the propositions laid down by the United States, and how far it dissents from them; examining afterwards, so far as may be necessary, the grounds on which the conclusions of the United States are formed, and stating its own conclusions on such points as appear to be in dispute.

The propositions advanced on the part of the United States are the following:1

"1. That it is the duty of a neutral to preserve strict and impartial neutrality as to both belligerents during hostilities."

The British government willingly assents to this proposition. No one, indeed, has yet been found to deny that it is the duty of a neutral power to be neutral; or that neutrality is, by its very definition, a condition of impartiality in matters relating to the war; or to affirm that it is possible to be neutral as to one of two belligerents without being neutral as to the other.

"2. That this obligation is independent of municipal law." The British government accepts this proposition also.

"3. That a neutral is bound to enforce its municipal laws and its executive proclamation, and that a belligerent has the right to ask it to do so, and also the right to ask to have the powers conferred upon the neutral by law increased, if found insufficient."

The British government does not dispute that a belligerent government may, if it think fit, ask for any of these things. But that a neutral power is under an international obligation to comply with the request, or to enforce its municipal laws and all proclamations or orders issued by the executive government, is far from being universally true; it is admissible only under very material qualifications, which will be

1 Case of the United States, pp. 210, et seq.

presently stated. Still less can it be admitted to be generally true that a belligerent power has a right to call upon the neutral State to make changes in its domestic legislation.

"4. That a neutral is bound to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a power with which it is at peace.

5. That a neutral is bound to use like diligence to prevent the construction of such a vessel.

"6. That a neutral is bound to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war against any power with which it is at peace; such vessel having been specially adapted, in whole or in part, within its jurisdiction, to warlike use.

7. That a neutral may not permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other.

"8. That a neutral is bound to use due diligence in its ports or waters, to prevent either belligerent from obtaining there a renewal or augmentation of military supplies, or arms for belligerent vessels, or the recruitment of men."

Great Britain adheres to the three rules inserted in Article VI [G] of the treaty of *Washington, and accepts them in the words in which they are there expressed; while it considers those rules as exceeding in some material respects the obligations which, independently of them, could have been established by international law against a neutral power free from all engagements on the subject, direct or indirect, with a belligerent. The British government is willing to discuss the construction of these rules, but declines to admit any deviation from or enlargement of them. The statement that a neutral government "is bound to use like diligence to prevent the construction of such a vessel," appears to Her Majesty's government to be such a deviation or enlargeIt is, in fact, a simple interpolation. Nor can the propositions numbered 7 and 8 be accepted as a correct representation of the second and third rules.

"9. That when a neutral fails to use all the means in its power to prevent a breach of the neutrality of its soil or waters, in any of the foregoing respects, the neutral should make compensation for the injury resulting therefrom."

The British government does not admit this proposition as it stands, but it agrees that, where an appreciable injury has been directly caused by a violation of a clearly-ascertained international duty, suitable reparation ought to be made to the injured party.

10. That this obligation is not discharged or arrested by the change of the offending vessel into a public man-of-war.

"11. That this obligation is not discharged by a fraudulent attempt of the offending vessel to evade the provisions of a local municipal law. "12. That the offense will not be deposited so as to release the liability of the neutral even by the entry of the offending vessel in a port of the belligerent, and there becoming a man-of-war, if any part of the original fraud continues to hang about the vessel."

Her Majesty's government must observe, with all respect for the Government of the United States, that it can neither admit nor deny propositions to which it finds itself unable to attach a distinct meaning. It is not for the British government to contend that any obligation, either of a government or of an individual, which has not been fulfilled

can be discharged by subsequent proceedings, such as are here supposed, of other 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 peculiar 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.

[7]

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.

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, amongst 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