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."

66 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

the prevention of those things which (when the requisite knowledge of them exists) it is bound to endeavor to prevent, and for which it will become responsible if it "knows and suffers" them, they throw no light beyond this: That a neutral Government is presumed, in general, to have the means of performing its international obligations; that it may also be presumed to know (and to suffer, if it does not interfere with them) hostile acts of an unequivocal character done within its territory by large numbers of persons without disguise or concealment; and, on the other hand, that it is not presumed to have the means of preventing, and is therefore not held responsible for suffering those things (though done by its citizens to the injury of a friendly State) of which it cannot be presumed or proved to have had knowledge; and that the knowledge or sufferance of such acts on the part of individual citizens, or of small numbers of citizens, is not to be imputed to their Government without positive proof of such knowledge and sufferance, in each particular case, as a matter of fact.

These are among the elementary principles on which, in the present controversy, the British Government relies. Nothing can 8. For what pur

refers to her muni.

be further from the truth than that the British Government poses Great Brit ain has ever (as is repeatedly, and in a manner not free from cipal law. offense, imputed to it in the Argument of the United States) "defended itself against charges of wrong by setting up a plea of incapacity to discharge the duties of a sovereign State." It has always maintained, and it still maintains, that it has justly and adequately discharged all those duties. Wherever, in this controversy, it has referred to the limitations upon its own power, imposed by the laws of Great Britain, from which its existence and its authority are derived, it has done so in strict accordance with the principles of international equity and justice. Those principles, being founded on the laws of nature and reason and the received usages of nations, cannot contemplate the performance of international obligations by national Governments as against their own citizens and within their own territory, except by means of just and reasonable general laws made for that purpose, and by the proper use of the legal means so provided.

Those principles also recognize the absolute right and duty of every national Government, which has extended the prohibitions of its own municipal law to things which it was not, by international law, antecedently bound to prohibit, to act upon those municipal laws, as constituting, with respect to such matters, the just and the only measure, as well of the right of a foreign nation seeking to have the benefit of them, as of its own powers of prevention.

The passage in Tetens's work ("Considérations des Droits Réciproques des Puissances Belligérantes et des Puissances Neutres sur 9. Doctrine of TeMer") cited from M. Reddie's English, in the note at page tens as to municipal 23 of the British Counter Case, is irrefragably sound and antecedent internajust:

laws,

excess

tional obligations.

of

It is a wise foresight for neutral Governments to obviate, during war, as far as possible, all illegal conduct on the part of their subjects, for the double advantage of preserving them from risks, and of preventing the suspicions of belligerents against the traders who sail under neutral flags.

*

*

*

*

*

What neutrals, however, may do in this respect does not arise from any right which imposes on them the obligation of maintaining a more special surveillance over their subjects during war than they are in the habit of doing during peace, nor to exercise a more extensive inspection over the legality of their conduct toward belligerents than that which is prescribed by law.

*

*

*

*

From neutral Governments not being under an obligation to obviate the abuses of their subjects, it follows that belligerents, whatever condescension they may have to

expect from them for that purpose, cannot reasonably require them to extend their measures beyond what is in practice in these same neutral countries for preventing frauds being committed on their own Customs, and for checking the other deceitful contrivances for evading payment of the revenues of the State. The maximum of precaution, in this case, is to maintain and enforce the observance of neutrality in vessels and cargoes with the same diligence and exactness as are exercised in inquiries and other proceedings relative to taxes or imposts and Customs. He who does as much to prevent a wrong meditated against another as he does for his own protection, satisfies every just and reasonable expectation on the part of that other. "Perhaps, however, more might be done, if it were wished, completely to attain the object. In time of war special instructions might be ordered; tribunals of inquiry might be established against the frauds of merchants and ship-owners, and more rigor might be shown in the punishment of their delinquencies. But this cannot be demanded on the one side; and, on the other, it might be difficult to grant it, because there might result from it consequences inconsistent with the general spirit of the prohibitory laws of the State. At least, this care must be left to the neutral Governments, to whom alone it belongs to judge what it may be proper for them to do with reference to the circumstances of the war.

10. Influence upon

gence of the different

Furthermore, in considering any question of "due diligence" on the part of a national Government, in the discharge of any of its the question of dili- duties, it is unavoidably necessary, upon those general forms of national principles of reason, and of the practice of nations, which Governments. are the foundations of international law, to have regard to the diversity in the forms and Constitutions of different Governments, and to the variety of the means of operation, for the performance of their public duties, resulting from those various forms and Constitutions. Thus, it is stated, at page 49 of the Argument of the United States, that "in the United States it was necessary to impart such executive powers" (as were given by the Acts of Congress of 1794, 1817, and 1818) "to the President; because, according to the tenor of our Constitution, it does not belong to the President to declare war, nor has he complete and final jurisdiction of foreign affairs. In all that he must act with the concurrence, as the case may be, of Congress or of the Senate." If the President has no executive power in the United States, except what is conferred upon him expressly by the law of that country, it is equally certain that the Sovereign of Great Britain, and the various Ministers of State and other officers by whom the executive Government in Great Britain is carried on under her authority, have also no executive power except what is conferred upon them by British law; and that (assuming the laws of both those countries to make just and reasonable provision for the fulfillment, within their respective jurisdictions, of their international obligations) the question whether the Government has, or has not, acted with "due diligence" in a particular case, is one which is incapable of being determined abstractedly, without reference to those laws. If the inquiry be, whether the provision which the national laws have made for the performance of international obligations is in fact just, and reasonably sufficient, it is impossible rationally to deny that principles of administration and rules of legal procedure which experience has proved to be just, and reasonably sufficient for all the great purposes of internal government, (the primary objects for which all Governments exist,) may be generally adhered to when the legal repression of acts injurious to foreign States becomes necessary, without exposing the national Government which relies on them to the imputation of a want of due diligence.

11. Objections to any theory of the

Any theory of diligence in the performance of international obligations which implies that foreign Governments, to whom such diligence due from obligations are due, owe no respect whatever to the distincneutral Govern- tive Constitutions of national Governments, or have a right a universal to call for their violation in particular cases, or to dictate legislative changes at variance with them, would be fatal to

ments, which in

volves

hypothesis of arbitrary power.

national independence; and (as no great Power could tolerate or submit to it) would tend, not to establish, but to subvert the peace and amity of nations. In the words of the British Summary, (page 9, sec. 30,) "its tendency, if admitted, would be to introduce a universal hypothesis of absolute and arbitrary power as the rule of judgment for all such international controversies." The practical falsehood of such a hypothesis, as applied at the present time to the two nations engaged in the present controversy, to the three nations which furnish the judges of that controversy, and to most of the other civilized nations of the world—its probably universal falsehood as to every European and American State in the not remote future-is perhaps not the gravest objection to it. It is at variance with all the highest principles of progress, of advancing liberty, and of extended civilization, which distinguish modern society. If the dreams of some political philosophers could be accomplished, and if all the nations of the earth could be united in one great federation under the most perfect imaginable political constitution, the rights both of particular States, and of individual citizens, and all questions, whether as to the repression and prevention, or as to the punishment of unlawful acts by States or citizens, would certainly be determined, not by arbitrary power, but by fixed and known laws and settled rules of procedure. Is it conceivable that it should enter into the mind of man (nay, of citizens of one of the freest States in the world, whose whole history is a refutation of such a doctrine) that practical impossibilities, which (if they were possible) would be hostile to the highest interests and intelligence of mankind, can be demanded by one State of another, in the name of international law?

IV.—On the preventive powers of the Laws of Great Britain.

as to the necessity of a reliance on Prerogative, for due dili

There are several passages, in the Argument of the United States, which appear (A) to contend that the Royal Prerogative in 12. The Argument Great Britain actually extends, under the British Constitu- of the United States. tion, to a power of summary and arbitrary control, without legal procedure, over the persons and property of its citi- gence. zens, when there is any ground to suppose that such citizens may be about to act, or that such property may be about to be employed, in a manner hostile to a foreign belligerent Power, with which Her Majesty is at peace; and (B) to assume that, if such a prerogative power does not actually exist under the British Constitution, the very fact of its absence is proof of a defect of British law, in itself amounting to an abnegation of the use of due diligence (or, what is the same thing, to a want of the means of due diligence) for the prevention of such acts.

There are, also, other passages which assert (C) that "Great Britain pretends that punitive law is the measure of neutral duties;" while (D) "all other Governments, including the United States, prevent peril to the national peace by means of prerogative force, lodged, by implied or express constitutional law, in the hand of the Executive," (page 37.) These arguments require to be severally examined.

(A.) The following passages embody the American argument as to the prerogative power, supposed by it to be actually vested in the Crown of Great Britain:

13. The arguments as to prerogative powers belonging to

(1.) We find, on the most cursory observation of the Constitution of the British Crown. 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 unauthorized private persons from en

gaging in private war against a friendly foreign State, and thus committing Great Britain to causes of public war on the part of such foreign State, (pages 24, 25.)

(2.) The whole body of the powers, suitable to the regulation and maintenance of the relations of Great Britain, ad extra, to other nations, is lodged in the prerogative of the Crown. The intercourse of peace, the declaration and prosecution of war, the proclamation and observance of neutrality, (which last is but à division of the general subject of international relations in time of war,) are all, under the British Constitution, administered by the Royal Prerogative.

We refer to the debates in Parliament upon the Foreign-Enlistment Bill in 1819, and on the proposition to repeal the Act in 1823, and to the debate upon the Foreign Eulistment Bill of 1870, (as cited in Note B of the Appendix to this Argument,) as a clear exhibition of this doctrine of the British Constitution, in the distinction between the Executive power to prevent violations of international duty by the nation, through the acts of individuals, and the punitive legislation in aid of such power, which needed to proceed from Parliament.

We refer, also, to the actual exercise of this Executive power by the Government of Great Britain, without any enabling act of Parliament to that end, in various public acts in the course of the transactions now in judgment before the Tribunal.

1. The Queen's Proclamation of Neutrality, May 13, 1861.

2. The regulations issued by the Government of Her Britannic Majesty in regard to the reception of cruisers and their prizes in the ports of the Empire, June 1, 1861— June 2, 1865.

3. The Executive orders to detain the Alabama at Queenstown and Nassau, August 2, 1862.

4. The Executive orders to detain the Florida at Nassau, August 2, 1862. 5. The Executive orders to detain the rams at Liverpool, October 7, 1863.

6. The debate and vote in Parliament justifying the detention of the rams by the Government "on their own responsibility," February 23, 1864.

7. The final decision of Her Majesty's Government in regard to the Tuscaloosa, as expressed by the Duke of Newcastle to Governor Wodehouse, in the following words : "If the result of these inquiries had been to prove that the vessel was really an uncondemned prize, brought into British waters in violation of Her Majesty's orders made for the purpose of maintaining her neutrality, I consider that the mode of proceeding in such circumstances most consistent with Her Majesty's dignity, and most proper for the vindication of her territorial rights, would have been to prohibit the exercise of any further control over the Tuscaloosa by the captors, and to retain that vessel under Her Majesty's control and jurisdiction, until properly reclaimed by her original owners." November 4, 1863.

8. The Executive order that," for the future no ship of war belonging to either of the belligerent Powers of North America shall be allowed to enter or to remain, or to be in any of Her Majesty's ports for the purpose of being dismantled or sold." September 8, 1864.

9. The final Executive orders to retain the Shenandoah in port "by force, if necessary," and to "forcibly seize her upon the high seas." September and October, 1865. 10. The rejection by Parliament of the section of the new Foreign-Enlistment Bill, which provided for the exclusion from British ports of vessels which had been fitted out or dispatched in violation of the Act, as recommended by the Report of the Royal Commission. This rejection was moved by the Attorney-General and made by Parliament, on the mere ground that this power could be exercised by Order in Council. That these acts were understood by the Government of Great Britain to rest upon the prerogative and its proper exercise, is apparent from the responsible opinions of the Law Officers given upon fitting occasions, (pages 323–325.)

These passages exhibit a very strange confusion of ideas, between the prerogative of the British Crown, as representing the British nation in its external relations towards foreign Powers, not subject to its laws, and its means of control within its own territory over its own citizens or commorant subjects, its relations to whom are created and defined by those laws. The declaration of war and peace, or of neutrality in a foreign war; the issuing orders and regulations as to the reception of foreign cruisers or their prizes in British ports; the exercise of control over foreign belligerent vessels or prizes (as in the supposed case of the Tuscaloosa) brought into British ports by a belligerent Power contrary to Her Majesty's orders and regulations; the exclusion of foreign bel ligerent vessels from being brought into British ports to be dismantled or sold, or from being brought into such ports at all, if originally fitted out or dispatched from British territory in violation of British law; the