sonable ground for believing, why should they not be sufficient in the first part as well as in the second? But the question would be one of the first to arise under the second part of the clause. When you urge that you had no reasonable ground for believing that a vessel leaving your ports was intended to cruise or carry on war against a power with which you were at peace, it may be said that you ought to have known it and would have known it if you had used due diligence. Therefore, I think it most important that, through what I may call an oversight on the part of those who constructed this clause, those qualifying words which were our only protection were omitted from the second part." (P. 1887.)

He said further:

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Any one of your lordships who considers the sentence will see that the point turns upon the words 'due diligence;' a neutral is bound to use due diligence.' Now, the moment you introduce those words, you give rise to another question, for which I do not find any solution in this rule. What is the standard by which you can measure due diligence? Due diligence by itself means nothing. What is due diligence with one man, with one power, is not due diligence with another man, with a greater power. Now this becomes much more important when you introduce in connection another consideration. The rule I have read is to be a rule of international law, and if there is one thing more clear than another in international laws, it is this, that as between two countries, it is no excuse where an international obligation has been broken for one country to say to another that its municipal law did not confer upon its Executive sufficient power to enable it to fulfill its international duty." (P. 1888.)

During the same debate, the Lord Chancellor, Lord Hatherley, said:

"In the first place, it was well said that there is no correlative connection between international and municipal law in the abstract; that a foreign nation has nothing to do with the municipal law of another nation, but has a right to meet a statement that in any country with which it has dealings there exists no such law as would prevent the acts complained of, with the reply that it ought to have such a law, and that international law alone must settle the question between them-this being the line taken by the United States in reference to the Alabama.” (P. 1890.)

The Marquis of Salisbury said:

"We have not been told what is to be the standard of ‘due diligence' for us. A neutral will now be bound to adopt a system of espionage in order to ascertain whether any vessel is intended for a hostile cruise. It will be bound to increase its police, that it may have full information of all such undertakings. It will be bound to interfere with its subjects, to make minute inquisitions, to take an enormous number of costly and laborious precautions which before this treaty it was not bound to take."

On the 29th of June, 1871, in the House of Lords, in reference to a motion for an Address to Her Majesty in regard to the Treaty of Washington, (see Hansard's Parliamentary Debates, third series, vol. cevii, pp. 729–741,) Earl Granville said:

"On the one hand, nothing is so easy as to prevent a vessel of the Alabama class escaping from our shores; and the only loss to the country which would result from such a prevention would be the small amount of profit which the individual constructing and equipping the vessel might derive from the transaction, which in almost every case is contrary to the proclamation of the Queen." (P. 741.)

16 C

NOTE C.-MEMORANDUM OF CORRESPONDENCE AND DOCUMENTS RELATIVE TO THE AMENDMENT OF THE ENGLISH FOREIGN-ENLISTMENT ACT, 1861'-71.

On the 7th of September, 1861, Mr. Seward, writing to Mr. Adams, said:

"I do not think it can be regarded as disrespectful if you should remind Lord Russell that when, in 1838, a civil war broke out in Canada, a part of the British dominions adjacent to the United States, the Congress of the United States passed, and the President executed, a law which effectually prevented any intervention against the Government of Great Britain in those interual differences by American citizens, whatever might be their motives, real or pretended, whether of interest or sympathy. I send you a copy of that enactment. The British Government will judge for itself whether it is suggestive of any measures on the part of Great Britain that might tend to preserve the peace of the two countries, and, through that way, the peace of all nations." (Am. App., vol. i, p. 102, 660.)

On the 28th of November, 1861, and, as it appears, before Mr. Adams had taken the direct action indicated in the dispatch of Mr. Seward above quoted, Lord Russell wrote to him as follows:

"Having thus answered Mr. Adams upon the two points to which his attention was called, the undersigned has only further to say that if, in order to maintain inviolate the neutral character which Her Majesty has assumed, Her Majesty's Government should find it necessary to adopt further measures, within the limits of public law, Her Majesty will be advised to adopt such measures." (Am. App., vol. i, p. 661.)

On the 27th of March, 1862, Lord Russell wrote to Mr. Adams in part as follows: “I agree with you in the statement that the duty of nations in amity with each other is not to suffer their good faith to be violated by evil-disposed persons within their borders merely from the inefficacy of their prohibitory policy.” (Am. App., vol. ii, p. 602.)

On the 20th of November, 1862, Mr. Adams, in accordance with explicit instructions from Mr. Seward, wrote to Lord Russell, submitting to his consideration a large number of papers, establishing the fact that the Alabama had destroyed a number of United States vessels, and so was actually carrying out the intention which Mr. Adams alleged that she had prior to her departure from the ports of Great Britain, and in the conclusion of the letter Mr. Adams said:

"Armed by the authority of such a precedent, having done all in my power to apprise Her Majesty's Government of the illegal enterprise in ample season for effecting its prevention, and being now enabled to show the injurious consequences to innocent parties, relying upon the security of their commerce from any danger through British sources ensuing from the omission of Her Majesty's Government, however little designed, to apply the proper prevention in due season, I have the honor to inform your lordship of the directions which I have received from my Government to solicit redress for the national and private injuries already thus sustained, as well as a more effective prevention of any repetition of such lawless and injurious proceedings in Her Majesty's ports hereafter." (Am. App., vol. iii, p. 72; vol. i, p. 666. Brit. App., vol. iv, p. 15.)

On the 19th of December, 1862, Lord Russell in part replied to Mr. Adams as follows:

"As regards your demand for a more effective prevention for the future of the fitting out of such vessels in British ports, I have the honor to inform you that Her Majesty's Government, after consultation with the Law-Officers of the Crown, are of opinion that certain amendments might be introduced into the Foreign-Enlistment Act, which, if sanctioned by Parliament, would have the effect of giving greater power to the Executive to prevent the construction in British ports of ships destined for the use of belligerents. But Her Majesty's Government consider that, before submitting any proposals of that sort to Parliament, it would be desirable that they should previously communicate with the Government of the United States, and ascertain whether that Government is willing to make similar alterations in its own Foreign-Enlistment Act; and that the amendments, like the original statute, should, as it were, proceed pari passu in both countries.

"I shall accordingly be ready at any time to confer with you, and to listen to any suggestions which you may have to make by which the British Foreign-Enlistment Act. and the corresponding statute of the United States, may be made more efficient for their purpose." (Am. App., vol. i, p. 667; vol. iii, p. 888; Brit. App., vol. iv, p. 25.)

On the 25th of December, 1862, this reply of Lord Russell was forwarded by Mr. Adams to Mr. Seward, (Am. App., vol. iii, p. 87,) and on the 19th of January, 1863, Mr. Seward wrote to Mr. Adams, replying to the suggestions of Lord Russell, in part as follows:

"It is not perceived that our anti-enlistment act is defective, or that Great Britain has ground to complain that it has not been effectually executed. Nevertheless, the proposition of Her Majesty's Government that the two Governments shall confer together upon amendments to the corresponding acts in the two countries evinces a conciliatory, a liberal, and just spirit, if not a desire to prevent future causes of complaint. You are, therefore, authorized to confer with Earl Russell, and to transinit for the consideration of the President such amendments as Earl Russell may in such a conference suggest, and you may think proper to be approved.

"You will receive herewith a copy of some treasonable correspondence of the insurgents at Richmond with their agents abroad, which throws a flood of light upon the naval preparations they are making in Great Britain. You will use these papers in such a manner as shall be best calculated to induce the British Government to enforce its existing laws, and, if possible, to amend them so as to prevent the execution of the unlawful designs which will thus be brought to their notice in a manner which will admit of no question in regard to the sufficiency of evidence." (Am. App., vol. iii, p. 113; vol. i, pp. 546, 667.)

On the 9th of February, 1863, Mr. Adams wrote to Lord Russell, transmitting the "treasonable correspondence of the insurgents at Richmond with their agents abroad,” and said in part as follows:

"These papers go to show a deliberate attempt to establish within the limits of this kingdom a system of action in direct hostility to the Government of the United States. This plan embraces not only the building and fitting out of several ships of war under the direction of agents especially commissioned for the purpose, but the preparation of a series of measures under the same auspices for the obtaining from Her Majesty's subjects the pecuniary means essential to the execution of those hostile projects," (Am. App., vol. i, p. 562.)

On the 13th of February, 1863, Mr. Adams having had a personal interview with Earl Russell, wrote to Mr. Seward as follows:

"In obedience to your instructions contained in dispatch No. 454, I called the attention of Lord Russell, in my conference of Saturday, to the reply made by him to my note of the 20th of November last, claiming reparation for the damage done by No. 290, and security against any repetition of the same in future. I observed that my Government had not yet authorized me to say anything in regard to the answer on the first point; but with respect to the second, his lordship's suggestion of possible amendments to the enlistment laws in order to make them more effective had been received. Although the law of the United States was considered as of very sufficient vigor, the Government were not unwilling to consider propositions to improve upon it.

"To that end I had been directed to ask whether any such had yet been matured by Her Majesty's Ministers; if so, I should be happy to receive and to transmit them to Washington. His lordship, repeating my remark that my Government considered its present enlistment law as efficiently effective, then added that since his note was written the subject had been considered in the cabinet, and the Lord Chancellor had expressed the same opinion of the British law. Under these circumstances he did not see that he could have any change to propose.

"I replied that I should report this answer to my Government. What explanation the Government was ready to give for its utter failure to execute a law confessed to be effective did not then appear." (Am. App., vol. i, p. 668.)

On the 14th of February, 1863, Lord Russell reported this same interview, as follows, in a dispatch to Lord Lyons:

"I had a conversation a few days ago with Mr. Adams on the subject of the Alabama.

"It did not appear that this Government desired to carry on the controversy on this subject from Washington; they rather left the conduct of the argument to Mr. Adams. "On a second point, however, namely, whether the law with respect to equipment of vessels for hostile purposes might be improved, Mr. Adams said that his Government was ready to listen to any propositions Her Majesty's Government had to make, but they did not see how their own law on this subject could be improved.

"I said that the cabinet had come to a similar conclusion; so that no further proceedings need be taken at present on this subject." (Am. App., vol. i, p. 668. Brit App., vol. i, pt. i, p. 48.)

On the 2d of March, 1863, on receipt of Mr. Adams's dispatch of the 13th of February, Mr. Seward wrote to Mr. Adams in part as follows:

"It remains for this Government, therefore, only to say that it will be your duty to urge upon Her Majesty's Government the desire and expectation of the President that henceforward Her Majesty's Government will take the necessary measures to enforce the execution of the law as faithfully as this Government has executed the correspondng statutes of the United States." (Am. App., vol. i, p. 669.)

On the 27th of March, 1863, Lord Russell, reporting to Lord Lyons a conversation which Mr. Adams had had with him the day before, and after the receipt of the dispatch last quoted, wrote in part as follows:

"Mr. Adams said there was one thing which might be easily done. It was supposed the British Government were indifferent to these notorious violations of their own laws. Let them declare their condemnation of all such infractions of law.

"With respect to the [enlistment] law itself, Mr. Adams said either it was sufficient for the purposes of neutrality, and then let the British Government enforce it; or it was insufficient, and then let the British Government apply to Parliament to amend it.

"I said that the cabinet were of opinion that the law was sufficient, but that legal evidence could not always be procured; that the British Government had done everything in its power to execute the law; but I admitted that the cases of the Alabama and Oreto were a scandal, and, in some degree, a reproach to our laws." (Am. App., vol. i, p. 670; vol. iii, p. 122. Brit. App., vol. iv, pt. ii, p. 2.)

On the 27th of March, 1863, the neutrality laws of Great Britain being under consideration, in connection with the escape of the Alabama, the Solicitor-General, Sir Roundell Palmer, said:

"The United States Government appear to have a more convenient method than ours. Their customs authorities have a court always sitting, ready to deal with such matters; but in this country the customs authorities would have had to seize the ship, without any order of the court, on the responsibility of the Government; and it would be a direct violation of the law to do that, unless there was a justifying cause for doing so." (Am. App., vol. iv, p. 522.)

In the same debate, he said further:

"And if our law is defective, it is for this House to consider whether it ought to be amended. If Her Majesty's Government thought it was so, they would be willing, in concert with the American Government, to consider how it might be amended. But they could not think it would be acting prudently or safely to come down to Parliament and propose an alteration in our law, unless they had reason to believe that the American Government were prepared to take some steps to place their law also on the same basis." (Am. App., vol. iv, p. 523.)

In the same debate, Lord Palmerston said:

"But if this cry is raised for the purpose of driving Her Majesty's Government to do something which may be contrary to the laws of the country, or which may be derogatory to the dignity of the country, in the way of altering our laws for the purpose of pleasing another Government, then all I can say is, that such a course is not likely to accomplish its purpose.

"I think that the House at least will see that the statement of my honorable and learned friend proves that we have, in regard to enforcing the Foreign-Enlistment Act, done all that the law enabled or permitted us to do.

"The law is in this case of very difficult execution. This is not the first time when that has been discovered. When the contest was raging in Spain between Don Carlos and Queen Isabella, it was my duty, the British Government having taken part with the Queen, to prevent supplies from being sent to Don Carlos from this country. There were several cases of ships fitted out in the Thames; but, though I knew they were intended to go in aid of Don Carlos, it was impossible to obtain that information which would have enabled the Government to interfere with success.

*

"I do hope and trust that the people and Government of the United States will believe that we are doing our best in every case to execute the law; but they must not imagine that any cry which may be raised will induce us to come down to this House with a proposal to alter the law. We have bad-I have had some experience of what any attempt of that sort may be expected to lead to; and I think there are several gentlemen sitting on this bench who would not be disposed, if I were so inclined myself, to concur in any such proposition." (Am. App., vol. v, pp. 530, 531.) On the 9th of June, 1863, certain merchants of Liverpool addressed a memorial to Lord Russell, in part as follows:

"Your memorialists, who are deeply interested in British shipping, view with dismay the probable future consequences of a state of affairs which permits a foreign belligerent to construct in, and send to sea from, British ports vessels of war in contravention of the provisions of the existing law.

"That the immediate effect of placing at the disposal of that foreign belligerent a very small number of steam cruisers has been to paralyze the merchant marine of a powerful maritime and naval nation, inflicting within a few months losses, direct and indirect, on its ship-owning and mercantile interests which years of peace may prove inadequate to retrieve.

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Your memorialists would accordingly respectfully urge upon your lordship the expediency of proposing to Parliament to sanction the introduction of such amendments into the Foreign-Enlistment Act as may have the effect of giving greater power to the Executive to prevent the construction in British ports of ships destined for use of belligerents." (Am. App., vol. i, p. 672.)

On the 24th of June, 1863, the Lord Chief Baron, in charging the jury in the Alexandra case, said:

"Gentlemen, I must say, it seems to me that the Alabama sailed away from Liverpool without any arms at all, merely a ship in ballast, unfurnished, unequipped, unprepared, and her arms were put in at Terceira, not a port in Her Majesty's dominions. The Foreign-Enlistment Act is no more violated by that than by any other indifferent matter that might happen about a boat of any kind whatever." (Am. App., vol. v, p. 129.)

On the 6th of July, 1863, Mr. Hammond, by the direction of Earl Russell, replied to the memorial of the Liverpool merchants, in part as follows:

"In Lord Russell's opinion the Foreign-Enlistment Act is effectual for all reasonable purposes, and to the full extent to which international law or comity can require, provided proof can be obtained of any act done with the intent to violate it.

"Even if the provisions of the act were extended, it would still be necessary that such proof should be obtained, because no law could or should be passed to punish upon suspicion instead of upon proof." (Am. App., vol. i, p. 673.)

On the 16th of July, 1863, Mr. Adams, trausmitting to Mr. Seward copies of the memorial of the Liverpool merchants, and of the reply to the same, wrote in part as follows:

"It may be inferred from this that the Government will persist in their efforts to enforce the provisions of the Enlistment Act through the Courts, reserving to themselves an avenue of escape, by reason of any failure to be supplied with evidence of intent to violate them. Whether they expect the duty of looking this up to be performed by us, or they design to seek it also from other sources, does not clearly appear." (Am. App., vol. i, p. 671.)

On the 16th of September, 1863, Mr. Adams, in a letter to Earl Russell, while describing the great danger threatening the United States in the building of the rams by the Lairds at Liverpool, said in part as follows:

"And here your lordships will permit me to remind you that Her Majesty's Government cannot justly plead the inefficacy of the provisions of the enlistment law to enforce the duties of neutrality in the present emergency as depriving them of the power to prevent the anticipated danger. It will doubtless be remembered that the proposition made by you, and which I had the honor of being the medium of conveying to my Government, to agree upon some forms of amendment of the respective statutes of the two countries, in order to make them more effective, was entertained by the latter, not from any want of confidence in the ability to enforce the existing statute, but from a desire to co-operate with what then appeared to be the wish of Her Majesty's Ministers. But, upon my communicating this reply to your lordship, and inviting the discussion of propositions, you then informed me that it had been decided not to proceed any further in this direction, as it was the opinion of the Cabinet, sustained by the authority of the Lord Chancellor, that the law was fully effective in its present shape." (Am. App., vol. ii, p. 378; vol. vi, p. 673. Brit. App., vol. ii, p. 364.) On the 25th of September, 1863, Earl Russell replied to Mr. Adams in part as follows: "There are, however, passages in your letter of the 16th, as well as in some of your former ones, which so plainly and repeatedly imply an intimation of hostile proceeding toward Great Britain on the part of the Government of the United States, unless steps are taken by Her Majesty's Government which the law does not authorize, or unless the law, which you consider as insufficient, is altered, that I deem it incumbent upon me, in behalf of Her Majesty's Government, frankly to state to you that Her Majesty's Government will not be induced by any such consideration either to overstep the limits of the law, or to propose to Parliament any new law which they may not, for reasons of their own, think proper to be adopted. They will not shrink from any consequences of such a decision." (Am. App., vol. i, p. 674; vol. ii, p. 384. Brit. App., vol. ii, p. 374.)

On the 16th of February, 1864, Earl Russell spoke in the House of Lords in part as follows:

"Referring again to the Alabama, the noble earl seems to be much shocked because I said that that case was a scandal, and in some sense a reproach upon British law. I say that here, as I said in that dispatch. I do consider that, having passed a law to prevent the enlistment of Her Majesty's subjects in the service of a foreign power, to prevent the fitting out or equipping, within Her Majesty's dominions, of vessels for warlike purposes without Her Majesty's sanction; I say that, having passed such a law in the year 1819, it is a scandal and a reproach that one of the belligerents in this American contest has been enabled, at the order of the confederate government, to fit out a vessel at Liverpool in such a way that she was capable of being made a vessel of