ici la nomenclature, aussi complète que possible, des conventions conclues par les ÉtatsUnis, et dans lesquels ce principe a été formellement consacré.

The document then refers to the American foreign-enlistment acts, and continues: Le gouvernement américain a déjà eu l'occasion de montrer qu'il était décidé à remplir loyalement les obligations internationales qui lui sont imposées par cette législation. En 1838, lors du blocus des ports du Mexique et de la République Argentine par nos forces navales, le ministère de France, à Washington, ayant eu lieu de craindre qu'on armât dans les ports de l'union des corsaires munis de lettres de marque des gouvernements du Mexique et de Buenos-Ayres pour courir sus aux navires français, avait appelé sur cet objet l'attention du cabinet américain. Le secrétaire d'Etat, M. Forsyth, lui donna l'assurance que de tels armements, s'il s'en faisait, ne seraient point tolérés.

C'est à quoi le gouvernment fédéral ne se croirait sans doute pas moins essentiellement obligé, si l'on tentait aujourd'hui d'organiser, dans les ports américains, un système de course, sous pavillon russe, contre le commerce de la France et de l'Angleterre. Il suffisait, tout porte à le croire, de signaler de semblables projets à sa vigilance, pour qu'il s'empressât de prendre des mesures aussi promptes qu'efficaces, dans le but d'assurer la complète exécution des lois en vigueur. Le gouvernnmet qui, en 1823, proposait à l'Angleterre et à la Russie de conclure une convention pour déterminer, sur les bases les plus libérales, les droits des neutres en temps de guerre, et notamment pour la suppression de la course maritime, acte dont la France venait de prendre l'initiative à l'occasion de la guerre d'Espagne, ce gouvernement-là, disons-nous, ne peut qu'être disposé à conformer, en ce qui dépendra de lui, sa politique et sa conduite au sentiment honorable qui le portait alors à considérer comme opportun de "revendiquer et rehabiliter les lois de l'équité naturelle, et d'étendre en mer l'influence bienfaisante des préceptes de la charité chrétienne." (Note adressée par M. Middleton, ministre des EtatsUnis, à Saint Pétersbourg, au comte de Nesselrode, le 5 décembre, 1823.)

late on the subject.

IV. In singular contrast with this policy of the United States has been the policy of Great Britain. She, one of the oldest Disinclination of maritime states of Europe, had no legislative prohibitions of Parliament to legisprivate maritime equipment for hostile purposes, until long after such legislation existed in the United States. How did this happen? We may conceive the reasons of this, when we reflect upon the numerous piratical enterprises fitted out in former times in ports of Great Britain against the possessions of Spain in America, and the honor accorded to the chiefs of those expeditions, such as Drake and Hawkins; and when we reflect further that British legislation, in this respect, only commenced when most of the Spanish colonies in America had made themselves independent of Spain.

But, even then, it required all the official and personal authority of Mr. Canning, and of the government of which he was a member, to overcome the vis inertia of the prejudices in this relation so deeply rooted in the mind of Great Britain.

In reading the debates in the British Parliament on occasion of the passage of the act of 1819, it is notable, first, that the opposition to the enactment seemed to be absolutely unconscious of all those principles of international morality involved in the question; and secondly, that the opposition seemed incapable of looking beyond Spain and Spanish America, taking no thought of the duties of Great Britain toward other governments of Europe, and toward the United States.1

It is most interesting to see how, on this occasion, Mr. Canning towered above the other debaters, what clear perception he exhibited of the philosophy of the question, and what distinct knowledge of the true principles of international law, in contrast with the shallow arguments of even so eminent a person as Sir James Mackintosh.

Four years afterward the debate was resumed in Parliament, on a motion made by Lord Althorpe for the repeal of the foreign-enlistment act. On that occasion Mr. Canning again distinguished himself by the courage, the eloquence, the statesmanship, and the elevation of view, with which he combated the prejudices of his countrymen. He referred

1 See Hansard's Parliamentary Debates, vol. xl, passim.

to the United States in language which every American may read with pride, and which is pertinent to the present line of observation on the part of the counsel of the American Government.

And, unfortunately for the good understanding of Great Britain and the United States, the British Government is not yet fully emancipated from servitude to the traditional national prejudices which obstructed Mr. Canning. For, as the Case and Counter Case of the British Government show, it still lags behind the United States in appreciation of the true principles of public law, which lie at the foundation of the relations of independent sovereign States.

Legislation of other countries.

V. The British Case, in strange misapprehension of the facts, assumes that municipal laws for the preservation of neutrality exist only in the United States and Great Britain. Meanwhile the report of the English neutrality laws commission, contained in the appendix to the British Case, exhibits in detail the legislation of this class adopted by most of the governments of Europe.

Distinction be.

In the British Counter Case, it is true, the foreign laws of this class are at length recognized, but with refinements of imaginary distinction, which tend to leave some doubt in the mind whether the Counter Case does, or does not, admit the error of the Case. The Counter Case does not seem, even now, to see clearly that all these laws, whatpreventions ever be the diversity of form or of nomenclature among and punishment. them, are pervaded by one identical idea, namely, the prevention as well as punishment of acts of private persons, such as the enlistment of soldiers or mariners, or the expedition of men-of-war, or of letters-of-marque, in derogation of the local sovereignty, and tending to involve the local government in war with other governments.

tween

Sir Robert Phillimore, himself a member of the commission, expresses the identity of theory and object in this relation between the laws of the United States and Great Britain, and those of other governments, as follows: "It appeared from evidence laid before the English neutrality laws commission, appointed by the Queen in 1867, (the recommendations of whose report are mainly incorporated in the present and recent statute,) that European States generally were furnished by their municipal law with the means of fulfilling their international obligations in this respect."

1

But the indirect or implied retraction in the British Counter Case does not relieve us from the necessity of examining the legislation of other governments, and their executive action in the premises, because that examination will show that the general conscience of the world rejects the theory of the British Government, and conforms to that of the United States.

(a) We commence with scrutiny of the actual legislation of France, because that legislation is the model of the modern legislation, in this respect, of many other governments.

France.

The provision of the French Code Pénal is as follows:

ARTICLE 84. Quiconque aura, par des actes non approuvés par le gouvernement, exposé l'état à une déclaration de guerre, sera puni du bannissement; et, si la guerre s'en est suivie, de la déportation.

ARTICLE 85. Quiconque aura, par des actes non approuvés par le gouvernement, exposé des Français à éprouver des représailles, sera puni du bannissement.

The general commentaries we make on these two articles will apply to similar provisions of law of other governments.

1 International Law, vol. i, p. 467.

To the casual reader of them the first idea which suggests itself is their brevity, as compared with corresponding legislation of Great Britain and the United States.

But careful examination shows that they express in plain language the true object and theory of all such laws, which is to punish private persons who undertake acts of war by land and sea, in derogation of the sovereignty and in prejudice of the peace of their country; and that they do it effectually, but in terms of equal terseness and precision.

On the other hand, the English acts are so overloaded with a mass of phrases, alike unprecise and confused, with so much of tedious superfluity of immaterial circumstances, as if they were specially designed to give scope to bar chicanery, to facilitate the escape of offenders, and to embarrass and confound the officers of the government charged with the administration of law. Such indeed has been the ordinary complexion of the legislation of Great Britain, and this style of complex verbosity of legislation has unhappily been transmitted to the United States, although there it begins to encounter steady efforts of reformation, which are conspicuous in the legislation of many of the American States. These are secondary considerations, however. The important point is, that neither the administrative nor the judicial functionaries of France, nor her legislators and statesmen, ever conceived that the provisions of her penal code were anything more than what they profess to be, namely, the means of punishing the crimes of private persons. Statesmen and legislators of France never imagined that these provisions of the penal code are the measure and limit of her soverign rights or of her sovereign duties. Incidentally those provisions may come in aid of executive action. But to punish individual wrong-doers does not prevent wrong-doing, save incidentally by admonition and example. Punitive legislation is one thing, preventive another; and the only effectual prevention of the wrongful acts of private persons, which tend to compromise the neutrality of a Government, is the summary act of forcible prevention of such deeds by the supreme authority of the Government. Such is the theory of the laws of France in this behalf, as it is of the laws of the United States.1

This appreciation of the articles of the French Code Pénal is confirmed by authoritative commentaries thereon, some of which are reproduced in the documents annexed to the American Counter Case.

Accordingly, it is to be remembered that no cruisers sailed from the ports of France to depredate, under the Confederate flag, on the commerce of the United States.

At the very commencement, all Frenchmen were forbidden by sovereign act "to take a commission from either of the two parties to arm vessels of war, or to accept letters of marque for a cruise, or to assist in any manner in the equipment or armament of a war-vessel, or privateer, of either of the belligerents.” 2

And when attempts were made by the Confederates to construct and equip cruisers in the ports of France, on complaint being made by the minister of the United States, the construction of these vessels was arrested; and when a builder professed that vessels under construction, with suspicion of being intended for the Confederates, were in fact intended for a neutral government, the French ministers required proof of such professed honest intention, and carefully watched the vessels to make sure that they should not go into the service of the Confederates.

See documents annexed to the American Counter Case, pages Ɛ0) et seq.

2 See Documents, ubi supra, p. 912.

On this point we quote the language of the minister of marine, as follows:

The vessels of war to which you have called our attention shall not leave the ports of France until it shall have been positively demonstrated that their destination does not affect the principles of neutrality, which the French Government wishes to rigidly observe toward both belligerents.'

Contrast this with the conduct of the British Government in like circumstances, as exhibited in the analysis of facts comprised in the present Argument, where it is shown with what incredible credulity the British Government accepted the false and deceptive statements of the criminal and mercenary ship-builders engaged in the violation or evasion of the laws of Great Britain.

It requires exercise of much candor to believe that the British ministers could have permitted themselves to be so grossly imposed upon, if they desired to know the truth. Had they done what the French Government did in like circumstances-if they had required the known tools of Confederates at Liverpool, as might well have been done in virtue of the provisions of the merchant shipping act, and, indeed, of the foreign-enlistment act, to make proof of pretended honesty of purpose, the present controversy between the two Governments might not ever have arisen.

Italy.

In like manner the conduct of France, regarding the remanning of Confederate cruisers in her ports, is in striking contrast with the conduct of the British Government in reference to the same subject-matter. (b) All the observations regarding the legislation of France apply, in substance, to the legislation of Italy, and the regulations of the Government of Italy, including circulars of the minister of marine, and decrees of the King, all with distinct reference to the present controversy, are comprehensive, definite, and explicit in preventing, as they did prevent, any attempt of the Confederates to fit out cruisers in the ports of Italy, to abuse the right of asylum, or to cruise therefrom against the commerce of the United States.

All these measures, in form and effect, assumed preventive action by the executive, independently of the penal provisions of the municipal laws of Italy.3

The universality of laws of this class in the various countries of Europe is indicated by recent Italian juridical writers.*

(c) In like manner, examination of the laws, regulations, and political action of Switzerland, in the matter of neutrality, shows their conformity in theory with that of the United States, and emphatically contradicts that of Great Britain.

Switzerland.

The Code pénal fédéral of Switzerland is in this respect more concise and comprehensive even than that of France, for it inflicts punishment on all persons guilty in Switerland of committing any act contrary to the law of nations.5

Various ordinances of the Federal Council contain the most stringent provisions for the maintenance of the neutrality of the republic.

A federal law of Switzerland regulates in the fullest manner, and with all proper restrictions, the enlistment of troops in the territory of the

1 See Documents, ubi supra, p. 912.

2 Documents as above, p. 949.

3 See Documents annexed to the American Case, vol. iv, p. 150 et seq.

4 See Ferrarotti, Commentario del codice penale, vol. i, pp. 261-2; and Castelleri, Legislazioni comparate, p. 284.

5 Document annexed to the American Counter Case, p. 1092.

6 Ubi supra, p. 1105.

republic for foreign service, providing that it shall not be done without the express permission of the government; and various official reports. demonstrate the active efficiency of the federal government in defending its neutrality, not merely by municipal laws, to be executed by the courts, but by the most complete executive action supported by the military force of the republic.1

Brazil

(d) Similar conclusions apply to the legislation and the administrative action of the empire of Brazil: in considering which it will be convenient also to refer to the legislation and administrative action of Portugal, because of the similarity of their laws, and the more or less of common commentary thereon by juridical writers in one country or the other, of eminence and authority.

The penal code of Portugal in this respect is substantially the same as that of France.2

Portugal.

That of Brazil, while comprehending the same idea, is more complete in its development.

By that code it is a crime on the part of any individual to "provoke directly and by acts a foreign nation to declare war against the empire," or "if in case no declaration of war take place, but in consequence of such provocation there should be necessity for any sacrifice on the part of Brazil, or prejudice of her integrity, dignity, or interests."

By that code it is also made a crime to "commit, without order or authority of the government, hostilities against the subjects of another nation, so as to compromise peace, or provoke reprisals."

Furthermore it is declared to be piracy "to practice on the sea any act of depredation or violence, whether against Brazilians, or against foreigners with whom Brazil is not in a state of war."3

Both in Brazil and Portugal these provisions of the penal code are but incidental only to the executive action, which prevents by supreme authority any violation of their neutrality, either by subjects or by foreigners.

We beg leave to refer this high tribunal to the administrative regulations of the Brazilian Empire, for the enforcement of neutrality in all the ports of the Empire, in the amplest manner, by efficient action on the part of the imperial ministers, and of the provincial presidents.*

In the American Case, and the documents to which it refers, there is sufficient indication of the loyalty and efficiency with which the Brazilian Government maintained its sovereignty against the aggressive efforts of the Confederates.5

As to Portugal, we refer to the correspondence annexed to the American Counter Case, to show that she also never pretended that her neutral duty was confined to the execution of the provisions of her penal code. She also put forth the executive power of the Crown to prevent, repress, or repel aggressive acts of the Confederates in violation of her hospitality, or in the derogation of her sovereignty. Nay, more, the Government of Portugal, finding its own naval force inadequate to prevent the Confederates from abusing the right of asylum in the Western Islands, expressly authorized the American Government to send a naval force there for the purpose of defending the sovereignty and executing the law of Portugal.

1 Vattel, Droit de gens, éd. Pradier-Fodéré, tome ii, p. 454, note.

2 Documents annexed to the American Counter Case, p. 958.

2 Ubi supra, p. 1041 et seq.

* See the circulars issued by the Brazilian Government, in supplementary documents annexed to the American Case, vol. vii, p. 107 et seq.

American Case, p, 465.

See documents annexed to the American Counter Case, p. 1013 et seq.