other things,)" the equipment, furnishing, fitting out, or arming of any ship or vessel within British jurisdiction, with intent or in order that such ship or vessel should be employed in the service of any foreign Prince," (or other bellig erent,) "with intent to cruise or commit hostilities against any Prince, state, or potentate," &c., with whom Great Britain might be at peace. Every attempt or endeavor to do, or to aid in doing, any of these prohibited acts was also forbidden; every ship or vessel which might be equipped, or attempted to be equipped, &c., contrary to these prohibitions, was declared forfeited to the Crown, and the officers of Her Majesty's customs were authorized to seize and to prosecute to condemnation in the British court of exchequer every ship or vessel with respect to which any such act should be done' or attempted within British jurisdiction. This law (which was called the Foreign-Enlistment Act) was regarded by Her Britannic Majesty's advisers, not only as prohibiting all such expeditions and armaments, augmentation of the force of armaments, and recruitments of men, as, according to the general laws of nations, would be contrary to the duties of a neutral State, but also as forbidding the fitting out or equipping, or the special adaptation, either in whole or in part, to warlike use, within British jurisdiction, of any vessel intended to carry on war against a Power with which Great Britain might be at peace, although such vessel might not receive, or be intended to receive, any armament within British jurisdiction; and although she might be built and sold by ship-builders in the ordinary course of their trade to the order of a belligerent purchaser, so as not to offend against any known rule of international law. It has never been disputed by Her Majesty's Government that when, at the time of the breaking out of a war, prohibitions of this municipal kind, exceeding the general obligations of international law, exist in the municipal law of a neutral nation, a belligerent, who accepts them as binding upon himself and renders obedience to them, has a right to expect that they will be treated by the neutral Government as equally binding upon his adversary, and enforced against that adversary with impartial good faith, according to the principles and methods of the municipal law, of which they form part.. Obligations which are incumbent upon neutral nations by the universal principles of international law stand upon a much higher ground; as to them, a belligerent has a right to expect that the local law should make proper provision for their performance; and, if it fails to do so, the local law cannot be pleaded as constituting the measure or limit of his right. But a right created by the municipal law of a neutral State must receive its measure and limit as much with respect to any foreign belligerent Power as with respect to the citizens of the neutral State itself, from the municipal law which created it. Any engagement of the neutral toward a belligerent State, which may be implied from the existence of such a law, can go no further than this. And if to this is superadded an express promise or undertaking to apply the law in good faith to all cases, to which there is reasonable ground for believing it to be applicable, that promise and undertaking leaves the nature of the obligation the same; it does not transfer the prohibition or the right or the belligerent with respect to the manner of enforcing it from the region of municipal to that of international law.

4. Effect of prohibitory laws.

Accordingly, the Minister of the United States, during the civil war, constantly applied to Her Majesty's Government to put this municipal law of Great Britain in force. To select two out of a multitude of instances: On the 9th of October, 1862, (soon after the departure of the Alabama,) Mr. Adams sent to Earl Russell an intercepted letter from

the Confederate Secretary of the Navy, in which the Florida was referred to "as substantiating the allegations made of infringement of the Enlistment Law by the insurgents of the United States in the ports of Great Britain ;" and added:

*

*

*

I am well aware of the fact to which your Lordship calls my attention in the note of the 4th instant, that Her Majesty's Government are unable to go beyond the law, municipal and international in preventing enterprises of the kind referred to. But in the representations which I have had the honor lately to make, I beg to remind your Lordship that I base them upon evidence which applies directly to infringements of the municipal law itself, and not to anything beyond it.1

And on the 29th of September, 1863, writing with respect to the ironclad rams at Birkenhead, he said:

So far from intimating hostile proceedings toward Great Britain unless the law, which I'consider insufficient, is altered, [quoting words from a letter of Earl Russell,] the burden of my argument was to urge a reliance upon the law as sufficient, as well from the past experience of the United States, as from the confidence expressed in it by the most eminent authority in this kingdom.2

In answer to all these applications, Her Majesty's Government uniformly undertook to use their best endeavors to enforce this law, and to do so (notwithstanding a diversity of opinion, even upon the judicial Bench of Great Britain, as to its interpretation) in the comprehensive sense in which they themselves understood it, not only by penal but by preventive measures, (i. e., by the seizure of any offending vessels before their departure from Great Britain,) upon being furnished with such evidence as would constitute, in the view of British law, reasonable ground for believing that any of the prohibited acts had been committed or were being attempted.

5. The three Rules

Washington.

When, therefore, Her Majesty's Government, by the sixth article of the Treaty of Washington, agreed that the Arbitrators should assume that Her Majesty's Government had under- of the Treaty of taken to act upon the principles set forth in the three Rules, (though declining to assent to them as a statement of principles of international law, which were in force at the time when the claims arose,) the effect of that agreement was not to make it the duty of the Arbitrators to judge retrospectively of the conduct of Her Majesty's Government according to any false hypothesis of law or of fact, but to acknowledge, as a rule of judgment for the purposes of the Treaty, the undertaking which the British Government had actually and repeatedly given to the Government of the United States, to act upon the construction which they themselves placed upon the prohibitions of their own municipal law, according to which it was coincident, in substance, with those Rules. With respect to these three Rules, it is important to observe that not one of them purports to represent it as the duty of a neutral Government to prevent, under all circumstances whatever, the acts against which they are directed. The first and third Rules recognize an obligation (to be applied retrospectively upon the footing, not of an antecedent international duty, but of a voluntary undertaking by the British Government) "to use" within the neutral jurisdiction "due diligence to prevent" the acts therein mentioned; while the second recognizes a like obligation "not to permit or suffer" a belligerent to do certain acts; words which imply active consent or conscious acquiescence.

III.-Principles of Law relative to the diligence due by one State to another.

The obligation of "due diligence," which is here spoken of, assumes 1 Brit. App., vol. i, p. 216. 2 Ibid., vol. ii, p. 378.

6. General princi

66

under the first Rule expressly, and under the third by necesples for finding what Sary implication, the existence of a reasonable ground of diligence is due. belief;" and both these expressions, "due diligence" and "reasonable ground of belief," must be understood, in every case, with respect to the nature of the thing to be prevented, and the means of prevention with which the neutral Government is or ought to be provided. When the obligation itself rests not upon general international law, but upon the undertaking of a neutral Government to enforce in good faith the provisions of its own legislation, the measure of due diligence must necessarily be derived from the rules and principles of that legislation. When the obligation rests upon the more general_ground of international law, inasmuch as it is requisite in the nature of things that every obligation of a Government, of whatever kind, must be performed by the use of the lawful powers of that Government within the sphere of its proper authority, it will be sufficient if the laws of the neutral State have made such proper and reasonable provision for its fulfillment as is ordinarily practicable, and as, under the conditions proper for calling the obligation into activity, may reasonably be expected to be adequate for that purpose; and if upon the occurrence of the emergency recourse is had, at the proper time and in the proper manner, to the means of prevention provided by such laws.

Nothing could be more entirely abhorrent to the nature or more inconsistent with the foundations of what is called international law than to strain it to the exaction from neutral Governments of things which are naturally or politically impossible, or to the violation of the principles on which all national Governments (the idea of which necessarily precedes that of international obligation) themselves are founded.

7. The maxims

States from Sir R.

question, "Civitasne deliquerit, an cives ?"

It will be convenient, in this place, to examine the meaning of certain propositions extracted in the Argument of the United States cited by the United from Sir Robert Phillimore's work on international law, Phillimore, on the which were certainly not intended by that jurist to be un derstood in the absolute and unqualified sense in which the Counsel of the United States seem desirous of using them. It is proper here to mention that Sir Robert Phillimore, the author of that work, wasappointed Her Britannic Majesty's Advocate, in the room of Sir John Harding, in August, 1862; and that with respect to all the questions which afterward arose between the British Government and the United States, till some years later than the termination of the war, the British Government acted under his advice, which must be presumed to have been in accordance with his view of international obligations. That period covers the ground of all the claims now made by the United States against Great Britain, except those which relate to the Sumter and the Nashville, and to the original departure of the Florida and the Alabama from Great Britain.

The following extract (United States Argument, page 20) is from the Preface to the second edition of the first volume of Sir R. Phillimore's work, (pp. 20-22 :)

There remains one question of the greatest importance, namely, the responsibility of a state for the acts of her citizens, involving the duty of a neutral to prevent armaments and ships of war issuing from her shores for the service of a belligerent, though such armaments were furnished and ships were equipped, built, and sent without the knowledge and contrary to the orders of her Government.

The question, to what extent the State is responsible for the private acts of its subjects, (civitasne deliquerit, an cives?) is one of the most important and interesting parts of the law which governs the relations of independent States.

It is a maxim of general law that, so far as foreign States are concerned, the will of the subject must be considered as bound up in that of his Sovereign.

It is also a maxim that each State has a right to expect from another the observance of international obligations, without regard to what may be the municipal means which it possesses for enforcing this observance.

The act of an individual citizen, or of a small number of citizens, is not to be imputed without clear proof to the Government of which they are subjects.

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 any 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.

Upon this passage, which couples together "armaments and ships of war," it is to be observed, in the first place, that there is nothing in it which implies any different view of the extent of those international obligations (as distinct from its own municipal prohibitions) by which a State is bound, from that which is shown to have been established by earlier authorities. Sir R. Phillimore is too sound a jurist to suppose that any private opinion of a particular jurist could impose retrospectively upon the Governments of the civilized world obligations not previously recognized. He does not define here what are "the obligations of neutrality by which the State is bound;" he leaves them to be ascertained from the proper sources of information.

Next, when he lays it down as a maxim, that "each State has a right to expect from another the observance of international obligations, without regard to what may be the municipal means which it possesses for enforcing this observance," he says nothing at all inconsistent with the proposition, that a neutral State will have observed its international obligations with due diligence, if, having provided itself with municipal means suitable to the nature and character of those obligations, it proceeds to use those means in good faith, on the proper occasions, and in the proper manner, though (it may be) without succeeding in the prevention of everything which it is bound to endeavor to prevent. The learned author's meaning, and the kind of cases which he has in view, are apparent from the reference which he makes in the foot-note to Part IV, ch. i, of the same volume, where he discusses the doctrine of "intervention" in the following terms:

CCCXCII. And first of all, it should be clearly understood that the intervention of bodies of men, armed or to be armed, uncommissioned and unauthorized by the State to which they belong, in a war, domestic or foreign, of another State, has no warrant from international law. It has been already observed (Section CCXIX) that it is the duty of a State to restrain its subjects from invading the territory of another State; and the question, when such an act on the part of subjects, though unauthorized by the State, may bring penal consequences upon it, has received some consideration. It is a question to which the events of modern times have given great importance, and as to which, during the last half-century, the opinions of statesmen, especially of this country (Great Britain) have undergone a material change. That this duty of restraining her subjects is incumbent upon a State, and that her inability to execute it cannot be alleged as a valid excuse, or as a sufficient defense to the invaded State, are propositions which, strenously contested as they were in 1818, will scarcely be controverted in 1870. The means which each State has provided for the purpose of enabling herself to fulfill this obligation form an interesting part of public and constitutional jurisprudence, to the province of which they, strictly speaking, belong. This question, however, borders closely upon the general province of international law, and upon the particular theme of this chapter.

The proposition that "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," is properly qualified, in the immediately preceding context, by the statement that "the act of an individual citizen, or of a small number of citizens, is not to be imputed without clear proof to the Government of which they are subjects, and that either "knowledge and sufferance," or "direct permission," is neces

sary to make a Government responsible for the acts of subjects" whom it does not prevent from the commission of injury to a foreign State." Another passage, bearing upon this latter point, is also cited in the American Argument, from volume iii, p. 218, of the same work:

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.

The passage in a former volume here referred to is in the chapter on "Self-Preservation," vol. i, part 3, chap. x. This, as well as all the other passages relied on by the United States, has reference to the organization of hostile expeditions against a foreign Power in a neutral or friendly territory. "If" (says the learned author) "the hostile expedition of the present" (or late) "Emperor of the French in 1842 against the existing monarchy of France had taken place with the sanction or connivance of the English Government, England would have been guilty of a very gross violation of international law;" and, after some intervening remarks applicable to "all cases where the territory of one nation is invaded from the country of another," he refers to "a very important chapter, both in Grotius and in his commentator Heineccius, entitled ' De Pœnarum Communicatione,' as to when the guilt of a malefactor, and its consequent punishment, is communicated to others than himself."

"In

"The question," he proceeds, "is particularly considered with reference to the responsibility of a State for the conduct of its citizens. The tests for discovering 'civitasne deliquerit an cives' are laid down with great precision and unanimity of sentiment by all publicists, and are generally reduced to two, as will be seen from the following extract from Burlamaqui, who repeats the opinion of Grotius and Heineccius." civil societies (he says), when a particuiar member has done an injury to a stranger, the Governor of the Commonwealth is sometimes responsible for it, so that war may be declared against him on that account. But to ground this kind of imputation, we must necessarily suppose one of these two things, sufferance or reception, viz: either that the Sovereign has suffered this harm to be done to the stranger, or that he afforded a retreat to the criminal. In the former case it must be laid down as a maxim that a Sovereign who, knowing the crimes of his subjects-as, for example, that they practice piracy on strangers-and being also able and obliged to hinder it, does not hinder it, renders himself criminal, because he has permitted, and consequently furnished a just reason of war. The two conditions above mentioned-I mean the knowledge and sufferance of the Sovereign-are absolutely necessary, the one not being sufficient without the other to communicate any share in the guilt. Now, it is presumed that a Sovereign knows what his subjects openly and frequently commit; and as to his power of hindering the evil this likewise is always presumed, unless the want of it be clearly proved."

"So Vattel: 'Si un souverain, qui pourrait retenir ses sujets dans les règles de la justice et de la paix, souffre qu'ils maltraitent une nation, ou dans son corps ou dans ses membres, il ne fait pas moins de tort à toute la nation que s'il la maltraitait luimême.'

"The act of an individual citizen, or of a small number of citizens, is not to be imputed, without special proof, to the nation or Government of which they are subjects. A different rule would of course apply to the acts of large numbers of persons, especially if they appeared in the array and with the weapons of a military force, as in the case of the invasion of Portugal, which has been referred to above."

To the principles of these extracts, relating as they do only to hostile expeditions or the invasion of territory or other operations of war, organized and carried on in a neutral country against a belligerent State, with the knowledge and sufferance of the neutral Government, no just exception can be taken. But they do not assert, and they have no tendency to prove, that the construction and sale of an unarmed ship of war by neutral ship-builders to a belligerent within neutral territory is, in the view of international law, a "hostile expedition." Upon the question of the due diligence required from a neutral Government for