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 an 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.

The government of the owner of the captured property may indeed call the neutral to account for permitting a fraudulent, unworthy, or unnecessary violation of its jurisdiction, and such permission may, according to the circumstances, convert the neutral into a belligerent.

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.3

The relation of neutrality will be found to consist in two principal circumstances: 1. Entire abstinence from any participation in the war.

2. Impartiality of conduct toward both belligerents.

This abstinence and this impartiality must be combined in the character of a bona-fide neutral.

The neutral is justly and happily designated by the Latin expression in bello medius. It is of the essence of his character that he so retain this central position as to incline to neither belligerent. He has no jus bellicum himself; but he is entitled to the continuance of his ordinary jus pacis, with, as will presently be seen, certain curtailments and modifications, which flow from the altered state of the general relations of all countries in time of war. He must do nothing by which the condition of either "belligerent may be bettered or strengthened, quo validior fiat.

It is for him perpetually to recollect, and practically to act upon, the maxim, “ Hostem esse qui faciat quod hosti placet.” ↑

We do not overstate the point when we say that these texts, from such an authority, but recently published, (1871,) and in full view of the present controversy between the two governments, compose, not only a complete answer to the legal doctrines of the Case and Counter Case of Great Britain in this behalf, but affirmation of the larger premises of argument assumed by the United States.

1. Sir Robert Phillimore avers that, so far as foreign States are concerned, the will of the subject is bound up in that of his sovereign.

Now, among the persons who equipped, manned, and armed the cruisers of the confederates in question, were liege subjects of Great Britain.

True it is that these liege subjects of Great Britain were hired to perform the acts in question by rebels of the United States, and the British Government strangely supposes that, because these rebels were citizens of the United States, therefore Great Britain was not responsible for their acts. The argument implies that foreigners in Great Britain are independent of the local jurisdiction. That, of course, is an error. But, if it were otherwise, the British Government would remain responsible for the acts of the Lairds, and all other British subjects, including Priolean, an American converted into a British subject for the special object of violating the laws of Great Britain, and committing treason against the United States with impunity, under shelter of the flag of Great Britain.

2. Sir Robert Phillimore, at a blow, strikes to the earth the whole fabric of the British Case and Counter Case, in declaring that no government has a right to set up the deficiency of its own municipal law as excuse for the non-performance of international obligations toward a foreign State.

Phillimore's International Law, vol. i, preface to 2d ed, p. 21.

2 Phillimore's International Law, vol. iii, p. 228.

3 Phillimore's International Law, vol. iii, p. 218.

4 Phillimore's International Law, vol. iii, pp. 201-2.

3. He lays down the rule that a government may by knowledge and sufferance, as well as by direct permission, become responsible for the acts of subjects, (including commorant or transient aliens,) whom it does not prevent from committing injury to a foreign State. This proposition is not presented by Sir Robert Phillimore as based on any express treaty stipulation, but as being the doctrine of the law of nations. As such it serves to construe the "due diligence" of the Treaty of Washington. 4. In expounding the proposition of the impartiality requisite in the character of a bona fide neutral, he declares that such neutrality is violated by any act which betters or strengthens one of the belligerents, or by any act which gratifies one of the belligerents.

It needs only to consider the analysis of the facts hereinafter presented, to see how much the British Government did to strengthen and to gratify the rebels of the United States.

5. Finally, he affirms that if a government, professing neutrality, permits a fraudulent, unworthy, or unnecessary violation of its jurisdiction, such permission may, according to the circumstances, convert the neutral into a belligerent.

That is the position of the counsel of the United States on this point; and it may be shown by signal examples in the previous history of Great Britain, that she herself has acted on this principle with respect to governments which, professing neutrality, did acts to strengthen or favor belligerent enemies of hers.

Legal theory of the United States respecting questions at issue.

X. We now proceed to develop more distinctly the nature and basis of the legal theory of the United States in regard to the questions at issue between the two governments. We commence by laying down a series of propositions, which are, as we conceive, axioms or postulates of the public law of Europe and America.

1. The right to engage in war, and so to become a belligRight to make war. erent, is inherent in the quality of sovereignty.1

2. We assume, also, that the right to maintain peace and to stand neutral whilst other sovereigns are belligerent, is inherent in the quality of sovereignty.

What may be cause.

3. As the right of war and peace is inherent in sovereignty, so is the right to give cause of war to another sov

4. Such cause of war may consist in acts of professed warfare, as the invasion of a foreign country in arms, the reduction of its cities, the military devastation of its territory, the capture of its merchant-vessels, or the armed encounter of its ships of war. 5. Or such cause of war may consist in acts equivalent to professed warfare, as in affording aid to one belligerent against another, such belligerents being each sovereign; or by prematurely conceding the quality of belligerence or of independence to the rebels of another sovereign; or by aiding such rebels in fact, while pretending friendship for their sovereign.

6. True neutrality between belligerents consists in holding absolutely aloof from the war in fact and in truth, as well as in proNeutrality. fession. To profess neutrality, and not to observe it, is disguised war.

7. War is by land or sea; and war by sea may consist in combats between ships of war, or in the capture of merchant-vessels War; what it is. and their cargoes.

Vattel, Droit des gens, éd. Pradier-Fodéré, tome ii, p. 337, (note.) Cauchy, Droit maritime, tome i, p. 18; tome ii, p. 14. Martens, Droit des gens, éd. Vergé, tome ii, p. 198.

It is not material to this point that certain of the States of Europe have agreed to abstain from the issue of letters of marque. Even those powers continue to maintain the belligerent right to capture private merchant-vessels and their cargoes, by the agency of men-of-war. The United States have refused to enter into any such agreement, in the conception that it is only adapted to governments which see fit to incur the expense of maintaining a large military marine. The United States have been content to agree with other powers in according immunity from any capture to private property on the sea; but they insist, as they think rightfully, that, if private property is to remain subject to capture, it should be subject to capture by letter of marque as well as by the regular naval forces of the belligerent, letters of marque having the same relation to regular forces in war on the sea, as volunteer levies have to the regular forces in war on land.1

8. The law of nations, as now practiced, permits the sale of arms by private merchants of the neutral sovereign, and their ex- Sales of arms and portation and transportation for the use of the belligerent, contraband of war. subject to capture as contraband of war, although the tendency of modern opinion is to contend that such acts of sale are contrary to the true principles of neutrality.

Many of the modern regulations of different governments on the subject of neutrality, contained in the documents annexed to the American Counter Case, sustain this view. (See the dispatch of Lord Granville to the Prussian minister of October 21, 1870, on the subject, defending the right of such sales.")

But it is admitted universally, in theory as well as in practice, that international law does not permit the equipment of men-of-war, or letters of marque, or their re-armament, or the enlistment of men for the military marine of the belligerent, in the ports of the neutral.

vessels.

9. The pretended neutral, who, as a government, expedites vessels, or with culpable negligence permits the expedition of ves- Dispatch of armed sels from his ports, to cruise against one of the belligerents, becomes thereby belligerent in fact, and responsible as such to the injured belligerent.

Responsibility of Sovereign for violation of neutrality.

10. In questions of international peace or war, and in all which regards foreign States, the will of the subject (or of commorant aliens) is merged in that of the local sovereign; that sovereign is responsible if he permits or knowingly suffers his subjects (or commorant aliens) to perpetrate injury to a foreign State; and, apart from other and direct proofs of permission, or knowledge and sufferance, the responsibility for any injury is fixed on such 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.

11. It is not admissible for any sovereign to plead constitutional dif ficulties in such an emergency; to do which implies surren- Constitutional in der of the rights, as well as abnegation of the power, of a abilities cannot sovereign, and confers on the injured power the right to occupy by force the territory of the incompetent power, and

be

pleaded in answer to a charg of such vio lation

1 See Cauchy, Droit maritime, tome ii, pp. 374 and 404. Idem, Du respect de la propriété privée dans la guerre maritime, passim.

Bynkershoek, Questiones Juris Publici, 1. i, c. 22. The "Santissima Trinidad," Wheaton's Reports, vol. vii, p. 340. Phillimore, vol. iii, p. 321. Pistoye et Duverdy, Traité des prises maritimes, t. i, p. 394.

3 Documents with the message of President of the United States, December, 1870.

to impose upon his subjects that preservation of order which he professes constitutional inability to preserve.

"Culpa caret, qui scit, sed prohibere non potest" is indeed one of the rules of private right; "but," says Sir Robert Phillimore, "such an avowal, actual or constructive, on the part of the unintentionally injuring State, justifies the injured State in exercising, if it cau, that jurisdiction by foreign force, which ought to be, but cannot be, exercised by domestic law."1

12. But no independent State exists, either in Europe or America, encumbered with constitutional incapacity in this respect.

Violations of neutrality are issues of war and peace. Whatever power in a state declares war, or makes peace, has jurisdiction of the issues of peace and war, including, of course, all violations of neutrality.

In point of fact, such authority is not a quality of despotic government only: it belongs equally to the most constitutional government, as appears, for instance, in the political institutions of constitutional republics, like Switzerland and the United States, and in constitutional monarchies, like Italy and Brazil.

The counsel of the United States submit these propositions as undeniable and elementary truths.

Yet the Case and Counter Case of the British Government assume and. persistently argue that the sole instrument possessed by the British Government to enforce the performance of neutral obligations at the time of the occurrences in question, was a particular act of the British Parliament.

Every government in Europe or America, except Great Britain, asserts and exercises authority to prevent its liege subjects (and à fortiori commorant aliens) from doing acts which tend to involve it in a war with any other government.

But the British Government maintains that the sovereign State of Great Britain and Ireland, the imperial mistress of the Indies, the proudest in fame, the richest in resources, and (including her transmarine possessions) the most populous of the great States of Europe, does not possess constitutional power to prevent mercenary law-breakers among her own subjects, or bands of desperate foreign rebels, commorant on her soil, from dragging her into acts of flagrant violation of neutrality, and thus affording, or tending to afford, just cause of war to other foreign States.

And such is the defense of Great Britain in answer to the reclamations of the United States.

Alleged constitu

13. It would be difficult to find any other example of a great State defending itself against charges of wrong by setting up the tional inability of plea of its constitutional incompetency and incapacity to discharge the most commonplace duties of a sovereign State. Great Britain is not in that condition of constitutional disability which her ministers pretend.

Great Britain examined.

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 unau thorized private persons from engaging in private war against a friendly

Phillimore's International Law, vol. iii, p. 218.

2 See Appendix to the American Counter Case, cited or commented on hereafter.

foreign State, and thus committing Great Britain to causes of public war on the part of such foreign State.

If the exercise of such power by the Crown involves derogation of the rights of private persons which ministers fear to commit, they should obtain a proper act of Parliament, either for antecedent general authorization or for subsequent protection, all which is within the scope of the theoretic omnipotence of Parliament. 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, the case of domestic war: à 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 gov

ernment.

Is it possible to deny or to doubt that British ministers might as well do this as the ministers of Switzerland, Italy, Brazil, and the United States, in like circumstances?

Has the Queen of the United Kingdom of Great Britain and Ireland less executive power than the President of the United States? And if she have less, could not the deficient power be granted to her by act of Parliament, just as readily as similar executive power, in this relation, has been granted to the President of the United States by their Congress?

14. But there is no such deficiency of power in the British ministers; their own conduct in pertinent cases proves conclusively that they have the power, and can exercise it, when they choose, without affording occasion of any serious doubt or denial of the constitutionality of their acts.

Be it remembered that the excuse of the British Government, for omitting to detain the Alabama and other confederate cruisers, was the alleged want of power to act outside of the foreign-enlistment act.

And yet, subsequently to the escape of the Alabama from the port of Liverpool, on occasion of the construction in the ports of Great Britain of certain other vessels for the confederates, commonly spoken of as the Laird rams, the British Government seized them upon its own responsibility in virtue of the prerogative power of the Crown, and so prevented their departure to make war against the United States.

And what the ministers did on this occasion was fully justified in the House of Commons by Sir Roundell Palmer, the then attorney-general of Great Britain, in the following words:

I do not hesitate to say boldly, and in the face of the country, that the government on their own responsibility detained them. They were prosecuting inquiries which, though imperfect, left on the mind of the government strong reasons for believing that the result might prove to be that these ships were intended for an illegal purpose, and that if they left the country the law would be violated and a great injury done to a friendly power. The government did not seize the ships; they did not by any act take possession or interfere with them, but on their own responsibility they gave notice to the parties interested that the law should not be evaded until the pending inquiry should be brought to a conclusion, when the government would know whether the inquiry would result in affording conclusive grounds for seizing the ships or not. If any other great crime or mischief were in progress, could it be doubted that the government would be justified in taking steps to prevent the evasion from justice of the person whose conduct was under investigation until the completion of the inquiry? In a criminal case we know that it is an ordinary course to go before a magistrate, and some information is taken of a most imperfect character to justify the accused's committal to prison for trial, the prisoner being remanded from time to time. And that course cannot be adopted in cases of seizing of vessels of this description; the law gives no means for that. And therefore it is that the government, on their own responsibility, must act and have acted in determining that what had taken place with