It is said that this second clause of the first Rule manifestly applies only to the original departure of such a vessel from the British jurisdiction, while its purposes of unlawful hostility still remain in intention merely, and have not been evidenced by execution.

If this means that a vessel that had made its first evasion from a British port, under circumstances which did not inculpate Great Britain for failing to arrest her, and then had come within British ports a second time, and the evidence, as then developed, would have required Great Britain to arrest her, and would have inculpated that nation for failure so to do, is not within the operation of this Rule, I am at a loss to understand upon what principle of reason this pretension rests. If the meaning is that this second clause only applies to such offending vessels while they remain in the predicament of not having acquired the protection of a "commission," that pretension is a begging of the question under consideration, to wit, what the effect of a "commission" is under the circumstances proposed.

I do not understand exactly whether these two cases are meant to be covered by this criticism of the learned Counsel. But let us look at it. Supposing that the escape of the Florida from Liverpool, in the first instance, was not under circumstances which made it an injurious violation of neutrality for which Great Britain was responsible to the United States, that is to say, that there was no such fault, from inattention to evidence, or from delay or inefficiency of action, as made Great Britain responsible for her escape; and supposing, when she entered Liverpool again, as the matter then stood in the knowledge of the Government, the evidence was clear and the duty was clear, if it were an original case; is it to be said that the duty is not as strong, that it is not as clear, and that a failure to perform it is not as clear a case for inculpation as if in the original outset the same circumstances of failure and of fault had been apparent? Certainly the proposition cannot mean this. Certainly the conduct of Great Britain in regard to the vessel at Nassau, a British port into which she went after her escape from Liverpool, does not conform to this suggestion. But if the proposition does not come to this, then it comes back to the pretension that the commission intervening terminates the obligation, defeats the duty, and exposes the suffering belligerent to all the consequences of this naval war, illegal in its origin, illegal in its character, and, on the part of the offending belligerent, an outrage upon the neutral that has suffered it.

Now, that is the very question to be determined. Unquestionably, we submit that, while the first clause of the first Rule is, by its terms, limited to an original equipment or outfit of an offending vessel, the second clause was intended to lay down the obligation of detaining in port, and of preventing the departure of, every such vessel whenever it should come within British jurisdiction. I omit from this present statement, of course, the element of the effect of the "commission," that being the immediate point in dispute.

I start in the debate of that question with this view of the scope and efficacy of the Rule itself.

It is said, however, that the second clause of the first Rule is to be qualified in its apparent signification and application by the supplying a phrase used in the first clause which, it is said, must be communicated to the second. That qualifying phrase is "any vessel which it has reasonable ground to believe is intended," &c.

Now, this qualification is in the first clause, and it is not in the sec

Effect of the wor is

to believe."

ond. Of course this element of having "reasonable ground "reasonable ground to believe" that the offense which a neutral nation is required to prevent is about to be committed, is an element of the question of due diligence always fairly to be considered, always suitably to be considered in judging either of the conduct of Great Britain in these matters, or of the conduct of the United States in the past, or of the duty of both nations in the future. As an element of due diligence, it finds its place in the second clause of the first Rule, but only as an element of due diligence.

Now, upon what motive does this distinction between the purview of the first clause and of the second clause rest? Why, the duty in regard to these vessels embraced in the first clause applies to the inchoate and progressive enterprise at every stage of fitting out, arming, or equip ping, and while that enterprise is, or may be, in respect to evidence of its character, involved in obscurity, ambiguity, and doubt. It is, therefore, provided that, in regard to that duty, only such vessels are thus subjected to interruption in the progress of construction at the responsibility of the neutral as the neutral has "reasonable ground to believe" are intended for an unlawful purpose, which purpose the vessel itself does not necessarily disclose either in regard to its own character or of its intended use. But, after the vessel has reached its form and com pleted its structure, why, then, it is a sufficient limitation of the obligation and sufficient protection against undue responsibility, that "due diligence to prevent" the assigned offense is alone required. Due dili gence to accomplish the required duty is all that is demanded, and accordingly that distinction is preserved. It is made the clear and absolute duty of a nation to use due diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war against a power with which it is at peace, such vessel having been specially adapted in whole or in part within such jurisdiction to warlike use. That is, when a vessel has become ready to take the seas, having its character of warlike adaptation thus determined and thus evidenced. so upon its subsequent visit to the neutral's port, as to such a vessel, the duty to arrest her departure is limited only by the

Chief Justice COCKBURN. "What should you think, Mr. Evarts, of such a case as this? Suppose a vessel had escaped from Great Britain with or without due diligence being observed-take the case of the Florida or the Shenandoah-take either case. She puts into a port belonging to the British Crown. You contend, if I understand your argu ment, that she ought to be seized. But suppose the authorities at the port into which she puts are not aware of the circumstances under which the vessel originally left the shores of Great Britain. Is there an obligation to seize that vessel ?"

Mr. EVARTS. That, like everything else, is left as matter of fact. The CHIEF JUSTICE. "But suppose the people at the place are per fectly unaware from whence this vessel

Mr. EVARTS. I understand the question. We are not calling in judg ment the authorities at this or that place. We are calling into judg ment the British nation, and if the ignorance and want of knowledge in the subordinate officials at such a port can be brought to the fault of the Home Government in not advising or keeping them informed, that is exactly the condition from which the responsibility arises. It is a ques tion of "due diligence," or not, of the nation in all its conduct in providing, or not providing, for the situation, and in preparing, or not preparing, its officials to act upon suitable knowledge.

We find nothing of any limitation of this second clause of the first

Rule that prevents our considering its proper application to the case of a vessel which, for the purpose of the present argument, it must be conceded ought to be arrested under it, and detained in port if the " commission" does not interpose an obstacle.

of a commission.

Extent of the right of exterritoriality given to ships of war.

We have laid down at pages from 152 to 154 in our Argument, what we consider the rules of law in regard to the effect of the The rules of law "commission" of a sovereign nation, or of a belligerent not respecting the effect recognized as a sovereign, in the circumstances involved in this inquiry. They are very simple. I find nothing in the argument of my learned friend, careful and intelligent as it is, that disturbs these rules as rules of law. The public ship of a nation, received into the waters or ports of another nation, is, by the practice of nations, as a concession to the sovereign's dignity, exempt from the jurisdiction of the courts and all judicial process of the nation whose waters it visits. This is a concession, mutual, reciprocal between nations having this kind of intercourse, and resting upon the best and surest principles of international comity. But there is no concession of extra-territoriality to the effect or extent that the sovereign visited is predominated over by the sovereign receiving hospitality to its public vessels. The principle simply is, that the treatment of the vessel rests upon considerations between the nations as sovereign, and in their political capacities, as matter to be dealt with directly between them, under reciprocal responsibility for offense on either side, and under the duty of preserving relations of peace and good-will if you please, but nevertheless to be controlled by reasons of state.

Any construction of the rule that would allow the visiting vessel to impose its own sovereignty upon the sovereign visited, would be to push the rule to an extreme that would defeat its purpose. It is the equality of sovereigns that requires that the process and the jurisdiction of courts should not be extended to public vessels.

But all other qualifications as to how the sovereign visited shall deal with public vessels rest in the discretion of the sovereign. If offense is committed by such vessels, or any duty arises in respect to them, he, at his discretion and under international responsibility, makes it the subject of remonstrance, makes it the subject of resentment, makes it the subject of reprisal, or makes it the subject of an immediate exercise of force if the circumstances seem to exact it.

What, then, is the tenor of the authorities, in respect to a public vessel not of a sovereign, but of a belligerent, who has not been recognized as a sovereign? The courts of the country, when the question arises as a judicial one, turn to the political authority, and, ask how that has determined the question of the public character of such vessels; and if that question (which is a political one) has been determined in recognition of the belligerency, then the vessel of the belligerent is treated as exempt from judicial process and from the judisdiction of the courts. But that vessel remains subject to the control, subject to the dominion of the sovereign whose ports it has visited, and it remains there under the character of a limited recognition, and not in the public character of a representative of recognized sovereignty.

We understand the motives by which belligerency is recognized while sovereignty is refused. They are the motives of humanity; they are the motives of fair play; they are the motives of neutral recognition of the actual features of the strife of violence that is in progress. But it is in vain to recognize belligerency and deny sovereignty, if you are going to attract one by one all the traits of sovereignty, in the relations with

a power merely recognized as belligerent and to whom sovereignty has been denied.

Recognition of bel

nition of sovereignty.

What is the difference of predicament? Why, the neutral nation, when it has occasion to take offense or exercise its rights ligerency not a recog- With reference to a belligerent vessel not representing a sov ereign, finds no sovereign behind that vessel to which it can appeal, to which it can remonstrate, by which through diplomacy, by which through reprisals, by which in resentments, it can make itself felt, its dominion respected, and its authority obeyed. It then deals with these belligerent vessels not unjustly, not capriciously, for injus tice and caprice are wrong toward whomsoever they are exercised, but, nevertheless, upon the responsibility that its dealing must reach the conduct, and that the vessel and its conduct are the only existing power and force to which it can apply itself.

I apprehend that there is no authority from any book that disturbs in the least this proposition, or carries the respect to belligerent vessels beyond the exemption from jurisdiction of courts and judicial process. The rule of law being of this nature, the question, then, of how a neutral shall deal with one of these cruisers that owes its existence to a violation of its neutral rights, and then presents itself for hospitality in a port of the neutral, is a question for the neutral to determine according to its duty to itself, in respect to its violated neutrality and its duty to the sovereign belligerent, who will lay to its charge the consequences and the responsibility for this offending belligerent.

Now, I find in the propositions of the eminent Counsel a clear recog nition of these principles of power on the part of the sovereign, and of right on the part of the sovereign, requiring only that the power should be exercised suitably and under circumstances which will prevent it from working oppression or unnecessary injury. That makes it a ques tion, therefore, as to the dealing of the sovereign for which the law of nations applies no absolute rule. It then becomes a question for the Tribunal whether (under these circumstances of cruisers that owe their origin or their power to commit these injuries to their violation of nea trality) Great Britain is responsible to the injured sovereign, the United States, for this breach of neutrality, for this unlawful birth, for this unlawful support of these offending cruisers. As to what the duty of a neutral nation is in these circumstances and in these relations, when the offending cruiser is again placed within its power, I find really no objec tion made to the peremptory course we insist upon, except that seizing such a vessel, without previous notice, would be impolite, would be a violation of comity, would be a violation of the decorous practice of nations, and would be so far a wrong.

Application of the principles.

Well, let us not discuss these questions in the abstract merely; let us apply the inquiry to the actual conduct of Great Britain in the actual circumstances of the career of these cruisers. If Great Britain claimed exemption from liability to the United States by saying that, when these cruisers had, confessedly, in fact escaped in violation of neutrality, and confessedly were on the seas propagating those enormous injuries to the property and commerce of a friendly nation, it had promptly given notice that no one of them should ever after enter its ports, and that, if it did enter its ports, it would be seized and detained, then this charge that the conduct of Great Britain toward these cruisers in their subsequent visits to its ports was such as to make it responsible for their original escape or for their subsequent career, would be met by this palliation or this defense. But no such case arises upon the proofs. You have then, on the one hand, a clear duty

toward the offended belligerent, and on the other only the supposed obligation of courtesy or comity toward the offending belligerent. This courtesy, this comity, it is conceded, can be terminated at any time at the will of the neutral sovereign. But this comity or this courtesy has not been withdrawn by any notice, or by any act of Great Britain during the entire career of these vessels.

We say then, in the first place, that there is no actual situation which calls for a consideration of this palliative defense, because the circumstances do not raise it for consideration. On the contrary, the facts as recorded show the most absolute indifference, on the part of Great Britain, to the protracted continuance of the ravages of the Alabama and of the Florida, whose escape is admitted to be a scandal and a reproach to Great Britain, until the very end of the war.

And, yet, a subtraction of comity, a withdrawal of courtesy, was all that was necessary to have determined their careers.

But, further, let us look a little carefully at this idea that a cruiser, illegally at sea by violation of the neutrality of the nation which has given it birth, is in a condition, on its first visit to the ports of the offended neutral, after the commission of the offense to claim the allowance of courtesy or comity. Can it claim courtesy or comity, by reason of anything that has proceeded from the neutral nation to encourage that expectation? On the contrary, so far from its being a cruiser that has a right to be upon the sea, and to be a claimant of hospitality, it is a cruiser, on the principles of international law, (by reason of its guilty origin, and of the necessary consequences of this guilt to be visited upon the offended neutral,) for whose hostile ravages the British Government is responsible. What courtesy, then, does that Government owe to a belligerent cruiser that thus practiced fraud and violence up its neutrality and exposed it to this odious responsibility? Why does the offending cruiser need notice that it will receive the treatment appropriate to its misconduct and to the interests and duty of the offended neutral? It is certainly aware of the defects of its origin, of the injury done to the neutral, and of the responsibility entailed upon the neutral for the injury to the other belligerent. We apprehend that this objection of courtesy to the guilty cruiser that is set up as the only obstacle to the exercise of an admitted power, that this objection which maintains that a power just in itself, if executed without notice, thereby becomes an imposition and a fraud upon the offender because no denial of hospitality has been previously announced, is an objection which leaves the ravages of such a cruiser entirely at the responsibility of the neutral which has failed to intercept it.

It is said in the special argument of the learned Counsel, that no authority can be found for this exercise of direct sovereignty on the part of an offended neutral toward a cruiser of either a recognized or an unrecognized sovereignty. But this after all comes only to this, that such an exercise of direct control over a cruiser, on the part of an offended neutral, without notice, is not according to the common course of hospitality for public vessels whether of a recognized sovereign or of a recognized belligerent. As to the right to exercise direct authority on the part of the displeased neutral to secure itself against insult or intrusion on the part of a cruiser that has once offended its neutrality, there is no doubt.

The argument that this direct control may be exercised by the displeased neutral without the intervention of notice, when the gravity and nature of the offense against neutrality on the part of the belligerent justify this measure of resentment and resistance, needs no in