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think, by, in the first place, bearing in mind the principles of law which I mentioned yesterday, and which your lordships will find stated and explained concisely, but at sufficient length, at the beginning of the lecture of Chancellor Kent, from a passage of which Sir Hugh Cairns read to your lordships upon that subject; it is a lecture on the general rights and duties of neutral nations; and for my purpose it will be quite enough to call your lordships' attention to the short headings in small letters at page 124 and 126, to show what is the nature of the subject which is being treated of by Chancellor Kent in that lecture, and in the passages which precede the one cited by my learned friend as to these rules. The first head is, "Neutrals must be impartial." That was what I mentioned to your lordships yesterday. Now, that stands on common sense, evidently, but it is a principle recognized by international law, that if a neutrality is professed, it shall be an impartial neutrality. Consequently you will not give advantages to the one belligerent which you refuse to another, unless, indeed, (for it seems to be considered, by the writers on international law, subject to this rather remarkable exception,) you are bound to do so by some antecedent positive engagement entered into with the one party not in contemplation of those particular hostilities. It seems to be thought that, subject to that qualification, it is a settled maxim; and so far it is a duty of neutrality toward other governments, that you will be impartial, that you will not give to the one an assistance or a liberty within your dominions which you do not equally allow to the other. That is the branch of the subject which relates to the duty of a neutral toward the belligerents. Then the next head is at page 126, which is the duty of the belligerents toward the neutral. "Neutral territory inviolable." Mr. BARON CHANNELL. Are you citing from the marginal paging?

Mr. ATTORNEY GENERAL. It is at page 126 of my edition; there are just within an inner margin, in small letters, the words "neutral territory inviolable."

Mr. BARON CHANNELL. Your edition is a later one than mine; the marginal paging is preserved throughout all the editions.

Mr. ATTORNEY GENERAL. I beg your lordship's pardon; page 117 is the marginal paging.

Mr. BARON CHANNELL. I have got it now.

Mr. ATTORNEY GENERAL. Having mentioned the duty of impartial neutrality first, which is a duty, as I have said, of the neutral to the belligerents, he now mentions the duty of the belligerents to the neutral, "neutral territory inviolable;" and he goes into that.

My lords, I of course am not going to detain your lordships from the real question by a disquisition upon these subjects; but it will be perfectly well known to all, I think, who have examined the books, that even a capture or an act of hostility within the neutral territory is a wrong to the neutral rather than a wrong by the one belligerent to the other; and it is upon the ground of vindicating their own rights, that neutrals, whose territory may be, invaded by acts of this description, in comity take care that restitution is made to the other belligerent. Therefore Kent, after stating the duty of impartiality by neutrals toward belligerents, goes on to mention the duty of belligerents toward neutrals-that there is to be no violation of territory. That duty extends. to this. In the first place there is of course to be no act of hostility, nothing of that nature which Sir Hugh Cairns spoke of as a proximate act of hostility, within the neutral dominion; not only that, but no acts or operations whatsoever connected with the war and having for their object the promotion of the war are to take place within the neutral territory on the part of either belligerent, without the consent and permission and against the will of the neutral sovereign. That is the basis and the principle of Washington's rules. That is to say, it was to protect their own neutrality from the assertion against their will by the French republican government of the right to arm and organize vessels of war and expeditions within their territory, which the history shows that the French republican government were asserting upon a strained construction of negative terms in a treaty.

Now the political circumstances connected with that act of Washington, which it is quite necessary to remember in order thoroughly to understand the matter, were these: The United States government, before issuing the rules which I have been mentioning, which was on the 3d of August, 1793, had upon the 5th of June in the same year given notice to the French agents within their dominion, that they would not permit those things to go on any longer which were being done; and had insisted that they should not bring in any prizes taken by any vessels which might be equipped or got ready for war after that date. But the French minister and his agents continued to do it in spite of the United States government; and that government, from reasons of policy, though they had engaged to Great Britain to prevent it, abstained from using the means in their power for a certain time to enforce those regulations. Your lordships will find the state of the case very distinctly explained in a letter of Mr. Jefferson to Mr. Hammond, dated the 5th of September, 1793, which is an annex to the treaty between Great Britain and the United States of the years 1794-'95. My lords, I am reading from Martens's Collection of Treaties, the sixth volume of the Supplement, and

your lordships will find that treaty with its annex at the pages 326 to 386 of that volume. Now, as I said, this letter is annexed to the treaty, and is referred to for the interpretation of one of its articles. And this is Mr. Jefferson's account of the circumstances, which will at once place your lordships, I think, in a correct view of the true position of the parties, and the true meaning of this political act of the United States. After referring to a letter which he had received from the British minister, Mr. Hammond, as to certain ships, and the previous correspondence, he proceeds thus:."We are bound by our treaties with three of the belligerent nations by all the means in our power to protect and defend all vessels and effects in our ports or waters, or on the seas near our shores, and to recover and restore the same to the right owners when taken from them. If all the means in our power are used, and fail in their effect, we are not bound by our treaties with those nations to make compensation. Though we have no similar treaty with Great Britain, it was the opinion of the President that we should use toward that nation the same rule which, under this article, was to govern us with the other nations, and even extend it to captures made on the high seas, and brought into our ports, if done by vessels which had been armed within them. Having, for particular reasons, forborne to use all the means in our power for the restitution of the three vessels mentioned in my letter of August the 7th, the President thought it incumbent on the United States to make compensation for them; and though nothing was said in that letter of other vessels taken under like circumstances, and brought in after the 5th of June," (that was the date at, which the United States government had said, "We will not permit it, ") "yet, when the same forbearance had taken place, it was and is our opinion that compensation should be equally due." And then he proceeds to say that it would be applied to cases occurring even later, if under the like circumstances. So that the state of things is made manifest; in the first instance, the French agents supposed that the treaty gave them not only negative rights, but positive rights to equip and arm vessels as much as they pleased within the ports of the United States, and, until the 5th of June, they did so under that impression, and no notice was given to them by the United States government that they were not to be at liberty to do so; but on the 5th of June the United States issued a proclamation, and gave notice that this state of things was not to go on. Nevertheless, it did go on; and, as Mr. Jefferson says, there were particular reasons why, although they had promised the British minister that it should be stopped, the United States government abstained from using the means in their power to stop it. Under those circumstances they held themselves bound to make restitution, and it was under the circumstances of those peculiar treaties, by which they were bound to give effect to the rule of impartial neutrality as far as they could, and at the same time to protect themselves from the assertion by a foreign power of a right, against their will, and against the notice which they had given of their dissent and disapprobation, to equip and arm vessels within their limits, that these rules were adopted by the American cabinet; and well may Chancellor Kent say, as he does say, (and it is all that he says of them,) that those rules had a perfectly good foundation in the law of nations. He says, at the marginal paging 122, the passage which Sir Hugh Cairns read, "The government of the United States was warranted by the law and practice of nations in the declaration made in 1793 of the rules of neutrality, which were particularly recognized as necessary to be observed by the belligerent powers in their intercourse with this country. These rules were," and then he states the substance of those rules, without their exceptions, and I will refer to them in a moment, as far as is necessary. He goes on to say, "Congress have repeatedly by statute made suitable provision for the support and due observance of similar rules of neutrality, and given sanction to the principle of them, as being founded in the universal law of nations." The principle of them to which he refers is merely this-on the one hand the observance of the obligation of an impartial neutrality toward the belligerents, and, on the other hand, the protection of the neutral's own territory from an unauthorized use of it by either belligerent, or both belligerents, for any purposes connected with war, which the government thinks fit to prohibit; that is all.

Now, the reason why my learned friend laid so much stress upon these rules, and tried to make so much of them, is obvious. In that political act, done under those circumstances, and before there was any legislation whatever in the United States on the subject, the government took a distinction, which we find upon the face of the rules, between equipments ancipitis usus and those which were essentially warlike; and my learned friend wants you to infer that, because in that political act done under those circumstances by Washington's administration, it was thought, in the absence of legislation, expedient to make that distinction for their present government and guidance, therefore you are to import that distinction into the interpretion of all subsequent legislation which has taken place upon the subject. It seems to me that anything more extravagant could not possibly be conceived; and, indeed, when we look at the rules themselves, it will not, I think, appear that that distinction clearly extends so far, even as my learned friend imagines under the rules, because I observe that there is only one of those acticles which relates to the original arming and

equipping of vessels. I do not mean to argue whether or not arming and equipping are to go together there, but at all events "the original arming and equipping of vessels in the ports of the United States by any of the belligerent parties for military service, offensive or defensive, is deemed unlawful." That is the first rule. Then the next rule permits the equipment of merchant vessels; that is lawful. The third rule, I think, clearly speaks of the equipment of vessels already in existence, and in the service of the government; not vessels to be brought into existence by operations within the United States, but vessels existing already in the immediate service of the government. "Equipments in the ports of the United States of vessels of war in the immediate service of the government of any of the belligerent parties, which if done to other vessels would be of a doubtful nature, as being applicable either to commerce or war, are deemed lawful;" which, in fact, is merely the ordinary hospitality shown by all countries in the world to all ships of war, (which I will observe upon when I come to the eighth section of our act of Parliament,) with an exception with regard to prizes taken from France, founded on the treaty obligations toward France. Then the fourth rule is this: "Equipments in the ports of the United States by any of the parties at war with France of vessels fitted for merchandise and war, whether with or without commissions, which are doubtful in their nature, as being applicable either to commerce or war, are deemed lawful, except those which shall have made prize," &c. That, no doubt, was the article which my learned friend particularly referred to, because he thought it useful to him. It was a particular distinction, which, in the circumstances which I have mentioned in this act of state antecedent to legislation, the United States. government thought fit to make, and the reason is obvious. They say, We prohibit, as an invasion of our sovereignty, independently of any legislation whatever, acts for manifestly warlike purposes within our territory; but we do not think it necessary to carry that provision further in the absence of legislation, upon the general principles merely of the law of nations, nor to treat as an invasion of our territory acts which are doubtful and equivocal in their nature. We do not at present exercise our power of prohibiting such acts. Your lordships will see the meaning of that, more especially when you remember what Mr. Jefferson said in the letter which I have read, namely, "We are bound by our treaties with three of the belligerent nations, by all the means in our power to protect and defend their vessels and effects in our ports or waters, or on the seas near our shores." Therefore, being able to limit, and intending to limit, according to their own sovereign will and pleasure, the extent of the prohibition which was then made by the sovereign authority, they limited it in that way. But how that can be imported into the construction of the subsequent statute appears to me to be a thing utterly unintelligible; because, looking at the abstract principle of law which entitles foreign nations to do the one thing or the other, it depends entirely upon the will of the sovereign power of the country where it is done.

My lords, my learned friend Sir Hugh Cairns, I think, in his argument upon that subject forgot that it is the practice of all nations, when war breaks out in which they intend to observe neutrality, by their sovereign power to regulate the extent to which they will allow what otherwise would be permissible to foreign countries; and the principle always has been to give hospitality to the ships of war and other ships of foreign countries in those ordinary things which are universally necessary, and which do not tend to increase the means of carrying on war previously existing. And it really would be just as reasonable to say that the rules which our government issued by proclamation at the beginning of the present war between the United States and the Confederate States, which your lordships will find in print, I think, in a note to Mr. Wheaton's book, at page 717, of the last edition.

Mr. BARON CHANNELL. And at page 12 of the Appendix.

Mr. ATTORNEY GENERAL. No, my lord, I do not mean the neutrality proclamation, I mean the rules according to which, by another proclamation, in February, I think, upon the occasion of the Tuscarora and the Nashville, two ships, which were a good deal talked about, coming into our waters, our government thought fit to regulate, as against foreign belligerent powers, the extent to which their ships should enjoy the hospitality of our shores. It is a proclamation exactly ejusdem generis with these rules of 1793, and of which it may be said, with the same truth with which Chancellor Kent speaks of those rules, that it is perfectly warranted by the rules of international law and founded upon them; namely, founded upon the principle of doing what, in our judgment, we think best, to preserve an impartial neutrality, and to protect our territory from any assumption of power within it which we do not think fit to permit. I am not going to read those rules to your lordships. I tell you where you may find them, and I say that you might just as well lay hold of those rules, and say, that there a line is drawn, and that everything within those rules is against the general principles of international law. Everything which they permit is assumed to be permissible, independently of the particular will of the sovereign power, and it is said that it must therefore be presumed to be a principle which was borne in mind in subsequent legislation upon the same subject. Nobody, of course, could read those rules of our government without seeing that a contention of that kind, with respect to them,

would be perfectly monstrous, if it were brought forward to regulate the interpretation or even to influence the interpretation of subsequent legislation in our country, which was language of its own, which language in its natural sense would go beyond those rules. I gave your lordships a reference to the page, it is page 717 of Wheaton. It would be clearly unreasonable in the one case, and it is equally unreasonable in the other.

But, my lords, I have Washington's own authority for saying so; and I have the authority of other great persons, judges of the American courts, proving that they never took this view of those rules of theirs, upon which my learned friend builds his argument, that forsooth you are to look upon this foreign enlistment act as a mere statute to give sanction to previously existing international duties, and not to go beyond the limits of those obligations, which limits he in this arbitrary way attempts to define.

Now, I will refer your lordships to that which my learned friend mentioned, but thought it unnecessary to read, but which, I cannot help thinking, is at least as germane as what he did read. I mean the President's speech to the two houses of Congress when announcing those rules, and his other acts connected with the same subject, and requesting that they would proceed to legislation. I will read it as matter of history, at all events as pertinent as that which we have heard connected with the rules. The President, on the 3d of December, 1793, said this: "As soon as the war in Europe had embraced those powers with whom the United States have the most extensive relations, there was reason to apprehend that our intercourse with them might be interrupted, and our disposition for peace drawn into question by the suspicions too often entertained by belligerent nations." And I observe, my lords, there, that this falls in with the line of argument which I submitted to your lordships yesterday with respect to the mischief; that the mischief is not to be measured by the provable obligations which you can establish by what my learned friend called the letter of international law, though I confess I do not know where the letter of international law is to be found; but the suspicions entertained and feelings excited equally endanger peace. Washington goes on: "It seemed, therefore, to be my duty to admonish our citizens of the consequences of a contraband trade, and of hostile acts to any of the parties, and to obtain by a declaration of the existing legal state of things an easier admission of our right to the immunities belonging to our situation. Under these impressions the proclamation which will be laid before you was issued. In this posture of affairs, both new and delicate, I resolved to adopt general rules," (those are the rules in question.) "which should conform to the treaties, and assert the privileges of the United States. These are reduced into a system, which will be communicated to you. Although I have not thought myself at liberty to forbid the sale of the prizes permitted by our treaty of commerce with France to be brought into our ports, I have not refused to cause them to be restored when they were taken within the protection of our territory, or by vessels commissioned or equipped in a warlike form within the limits of the United States." Then he proceeds thus: "It rests with the wisdom of Congress to correct, improve, or indorse this plan of procedure; and it will probably be found expedient to extend the legal code and the jurisdiction of the courts of the United States to many cases, which, though determined on principles already recognized, demand some further provisions." I think, therefore, there is nothing whatever which would lead your lordships to suppose that this act was introduced simply for the purpose of enacting as law the provisions of those rules; and it is manifest, when we compare the one with the other, that they differ so materially that it is impossible that difference should have been without intention and without purpose.

Now, my lords, I said that I could show you that the idea of this foreign enlistment act having been intended simply to enable the United States to enforce against its subjects obligations which were due from it to other belligerent governments, is an idea totally inconsistent with the judicial view of the matter, which has always been taken in the United States. I will mention to your lordships in connection with that subject two cases: one, the case of the Alerta, which, in the ninth volume of Cranch, at page 355, where Mr. Justice Bushrod Washington gave the judgment of the court; and the passage which bears upon this subject is the following: "A neutral nation may, if so disposed, without a breach of her neutral character, grant permission to both belligerents to equip their vessels of war within her territory; but without such permission the subjects of such belligerent powers have no right to equip vessels of war or to increase or augment their force either with arms or with men within the territory of such neutral nation. Such unauthorized acts violate her sovereignty and her rights as a neutral." Nothing can be clearer than that, but it does not rest on that authority only; for we find the same doctrine laid down in the case of the Estrella, which is frequently referred to in other American cases, as a case of high authority; and which is in the fourth volume of Wheaton's Supreme Court Reports. The passage in question is in the judgment of the court at page 309, which was delivered by Mr. Justice, afterward Chancellor, Livingstone. He says there: "So long as a nation does not interfere in the war, but professes an exact impartiality toward both parties, it is its duty as

well as right, and its safety, and good faith, and honor demand it, to be vigilant in preventing its neutrality from being abused for the purposes of hostility against either of them." I do not know that the principle for which I contend, as embodied in the law which I am now asking your lordships to administer and expound, could be better expressed than that. "This may be done, not only by guarding in the first instance as far as it can against all warlike preparations and equipments in its own waters, but also by restoring prizes taken in violation of its neutrality." Then he proceeds thus: "In the performance of this duty, all the belligerents must be supposed to have an equal interest, and a disregard or neglect of it would inevitably expose a neutral nation to the charge of insincerity and to the just dissatisfaction and complaints of the belligerent, the property of whose subjects should not, under such circumstances, be restored. The United States, instead of opening their ports to all the contending parties when at peace themselves, as may be done if not prevented by antecedent treaties, have always thought it the wisest and safest course to interdict them from fitting out or furnishing vessels of war within their limits, and to punish those who may contribute to such equipments." Therefore, Mr. Justice Livingstone thinks that it is perfectly competent, where there is no treaty to the contrary, to allow both parties to come into your ports and equip; but he thinks it the wiser and the safer course, and the course most consistent with the safety, good faith, and honor of a nation professing neutrality, especially as we know that both parties in any given war will not practically enter for such purposes the ports of the same neutral, to take the course which the United States have done-namely, to interdict them both from fitting out or furnishing, and to punish those who may contribute to such equipments.

Mr. BARON BRAMWELL. What are we to understand by that? According to his opinion, but for the special prohibition in any particular case, would it be lawful for the subjects of a neutral state to fit out and arm a vessel, so as to be ready for hostilities when it left the neutral port

Mr. ATTORNEY GENERAL. I apprehend that it is undoubtedly so. There was no municipal law in the United States or here, before the foreign enlistment act, to prevent it.

Mr. BARON BRAMWELL. Nay, as I understand, there was no international law.
Mr. ATTORNEY GENERAL. No international law whatever.

Mr. BARON BRAMWELL. No international law which would prohibit, for instance, the arming, manning, and in every way equipping a confederate ship in this port for the purpose of committing hostilities.

Mr. ATTORNEY GENERAL. All that is necessary for me to say is this-

Mr. BARON BRAMWELL. I beg your pardon. All I want to know is this: what are we to understand as Mr. Justice Livingstone's opinion there?

Mr. ATTORNEY GENERAL. I think that it was his opinion, that there was no international law which would prevent it, provided the United States permitted it equally to both parties. My lords, so far as I am concerned, I believe it is a matter as to which those who discuss these questions do not fully agree. Some think that, on sound views of international principles, such things ought not to be permitted by neutral nations; but, as far as I can find, American authority is distinctly in accordance with the answer which I gave your lordship as to what I understood Mr. Justice Livingstone to hold, namely, that there is no international obligation, provided it is allowed equally to both parties, and that it rests merely upon municipal law. It was with reference to that subject that I referred to what Wheaton said of the controversy between Lampredi and Galiani; it is just the same thing to a belligerent who suffers, whether a ship fully armed and equipped for war is sold without having been previously equipped expressly with a view to that sale, or whether it was equipped with a view to that sale, because she equally comes out of the port of a neutral nation an instrument immediately adapted for hostilities.

Mr. BARON BRAMWELL. What occurred to me at the time as a difference is this, that a vessel may be fully equipped and armed in every particular except the fighting crew; then if you sell her, you sell her still in an innocent condition; but what occurred to me might make a difference would be, that in addition to what you might call her own capacity of mischief, she had the requisite crew on board-what struck me was, that then the port would be a station of hostilities.

Mr. ATTORNEY GENERAL. I will address myself to that presently; but I think your lordship will see that although it is perfectly true that the passage which I read took no notice of the presence or absence of the crew, yet on the other hand it must be tolerably obvious that the government which purchases such a vessel fully equipped and fitted out for war would take care to provide itself with a crew to take the vessel out of port. And in the ordinary and natural state of things, it is not to be presumed that a vessel would leave port without a crew, and I do not find anywhere the least trace of such a view being entertained as that the lawfulness or unlawfulness of such a transaction would depend upon the presence or absence of a crew sufficient to navigate the vessel for warlike purposes when she left the port.

My lords, before I address myself a little to the observation embodied in the words,