the court that none of those matters which you are alluding to can be taken into consideration by the court when they come to expound the statute. I take it they were introduced, as some other matters have been, to put the court in possession of what may be called the history of the case. They can have no bearing whatever beyond that. Mr. ATTORNEY GENERAL. I took them entirely in that view, and, of course, no one could for a moment imagine that for the direct purpose of construction they could be used.

LORD CHIEF BARON. And I think I may add, with the sanction of all my learned brothers, that those matters, especially of foreign history, foreign decisions, and foreign acts, which the people of this country cannot be supposed to be aware of, or to have any knowledge of, and which they certainly are not bound to know, can hardly be taken into consideration when you come to expound a statute which is exceedingly penal. We must take the statute as we find it, and expound it as an Englishman ought to expound it, and without reference to any other country.

Mr. ATTORNEY GENERAL. Beyond all doubt; and the only use of referring to American decisions on the subject is simply this: that where you find them to be the decisions of judges on similar questions arising out of their own law, you give just as much weight to them as you would to the decisions of the same judges upon any other question of law, and no more. I rather imagine that that would be the view that we shall all agree in taking as to the purpose for which American decisions may be referred to; and with regard to these other matters, I was not inclined to doubt that my friend viewed them in the light your lordship mentioned, as part of the history merely; or as my friend Sir Hugh Cairns put it, that they might be referred to for the purpose of placing your lordships in the situation of the legislature, as it were, at the time the act was passed. Of course, I only wish to make such observations upon that part of the argument of my friend as shall restrict these matters to their proper province. I do not think, in point of fact, that for that purpose a reference to transactions such as were referred to, and speeches such as were referred to, is really very germane or useful; because I say that such arguments misrepresent, or at least there is great danger that they may misrepresent, the meaning relative to the subject in hand of the very speeches cited and the very transactions referred to. If a man is, for instance, in Parliament, arguing a question on the second reading of a bill, he does not go into the clauses, or the interpretation of them; but he takes a broad case, he speaks broadly of a patent obvious mischief, the strongest case he can think of that comes within the general policy. The principle of a bill is to repress that mischief and everything which may be conducive to it. He does not go into the details, but of course when you come to the details of legislation, the broad case, the flagrant invasion of the principle, will be surrounded by safeguards, such as are necessary completely to effectuate the object and policy of the act. Therefore it is very idle to say, this or that statesman spoke in such and such terms; they were very appropriate and very intelligible for the purpose for which he was speaking, but as he was not speaking with a view to construe the language of the clauses of the act, it would be most absurd to suppose that his having used that language can throw any light on the object and policy of the act. In truth. nothing was said which I should object to every member of the court reading over and over again, if it had any bearing upon the matter, because it bears out my view of the general purpose of the act, namely, that it was to vindicate our neutrality, and to prevent our being imbroiled with foreign nations by operations, as to which other countries might say: "Whatever you call them, practically they are hostile to us." I think that was the view taken of it at all times; but as I do not think that ultimately we get any particular good from that part of the argument, I do not intend to dwell upon it in addressing your lordships. But there was one argument which my friend Sir Hugh Cairns, by an ingenious device, contrived to make do duty in a more important direction, and that is what he said upon Washington's rules which preceded the enactment of the American statute. I have had on many occasions greatly to admire the ability, the ingenuity, and the courage of my learned friend; never more than en this occasion; and on this occasion in nothing more than with respect to the reference which he over and over again made to those rules of Washington, as if they had become landmarks in the law of nations, as if they had laid down some fixed principles of international law, and then that the American statute having intended to embody those principles, and our statute, to some extent, being framed on it as a precedent, therefore you are to look at those rules as embodying the principles meant to be protected and defended by those acts. What is the history of those rules of Washington! I can give it you very shortly. I will not read the passage, but I will give you the reference if you will have the goodness to make a note of page 712 of the last edition, that is, Lawrence's edition, of Wheaton's International Law. Your lordships will find in a note there, concisely stated, what I think you will also find in an exceedingly excellent pamphlet, which it is, perhaps, legitimate to mention, and which has been lately published by a gentleman well known to me, Mr. Gibbs. I really think that thehistory of the matter is so well collected there that I cannot do better than refer to it.

LORD CHIEF BARON. It is extremely useful to those who wish to look at the authorities; it collects them all together in a very convenient form.

Mr. ATTORNEY GENERAL. They are so accurately brought together that I felt myself justified in mentioning it, although ordinarily we do not mention any publication of so recent a date. My lords, the real truth of the case is this: the policy of the American cabinet with regard to the mode of maintaining its professed neutrality in the war then lately broken out between England and revolutionary France was undecided, and Washington's views fluctuated and changed from time to time. The American government were in this peculiar situation, they were not able to permit the equipment of warlike vessels in their ports equally and impartially by both belligerents, because they had a treaty with France, of which you will find the details in the publication I have mentioned, which guaranteed France against privateers being armed against France in the American ports, and against any prizes taken from the French being brought into those ports.

Now you will find, both in the chapter of Chancellor Kent's work to which my friend referred, where those rules are mentioned, and in Wheaton's International Law, and everywhere else, this to be laid down as the law of nations on the subject of the equipment of ships of war in a neutral territory; that it is perfectly competent, consistently with international law, for the neutral state to permit either party to make warlike equipments of ships, everything which is forbidden by the foreign enlistment act on any construction of it, without breach of neutrality, or without any breach of international law, provided it be equally and indifferently permitted, by the neutral country, to both parties. But the Americans were placed in a situation by their treaty with France, which disabled them from allowing to England that which France was doing. So that the effect of the treaty was this: although it seemed that international law had made some provisions for positive stipulation of exceptional advantages in favor of one belligerent, if those stipulations had been made before the war, yet there being nothing of the kind positive here, and it being merely a stipulation that the enemies of France should not equip ships of war against France in ports of the United States, it was impossible for the United States to permit France herself to equip such ships without violating the principle of neutrality, because they could not allow Great Britain to do the same. That led to the whole complication, and those rules which have been mentioned are not rules expressing, or at any time supposed to express, absolute obligations imposed by international law upon the neutral government, but they are, as Chancellor Kent says in the passage which my learned friend Sir Hugh Cairns referred to, founded on the principles of international law; which are these, that the neutral government has the absolute right to prohibit a belligerent government from carrying on any operations of that description within its territory; and having the absolute right to do that, it will fail in its duty of neutrality if it does not either prohibit it to him, or else allow it also to his adversary. Well, these rules, made by a government which could not allow it to both parties, are made in assertion of their territorial rights against both, in order to avoid partiality to one contrary to the law of nations. That is the whole and sole connection of those rules with the subject of international law. I think I will not pursue the matter further, though that connects itself with the American statute; for I may conveniently, I think, take up the history of the American statute when we begin to-morrow.

Mr. MELLISH. If your lordship will allow me, I will hand you up this copy of the decree about the Oreto.

Adjourned to to-morrow morning at ten o'clock.

FOURTH DAY.-FRIDAY, November 20, 1863. Mr. ATTORNEY GENERAL. My lords, when your lordships rose yesterday, I had been referring to a subject which was treated as of considerable importance by my learned friend, although in my opinion, when its meaning and bearing are rightly understood, it will turn out to have none; yet I do not wish to leave that undemonstrated, and therefore I will say a little more about it. I allude to the rules which were made by President Washington and by his government, on the 3d of August, 1793. They were headed, "Rules adopted by the American cabinet as to the equipment of vessels in the ports of the United States by belligerent powers, and proceedings on the conduct of the French minister." My lords, it was an act of state, a political act, which was undoubtedly in this sense connected with rules and principles of international lawthat it was warranted by those rules and principles under the circumstances in which the United States were then placed; but the notion of its being intended to be, or being in any sense whatever, an abstract declaration of the obligations and the rights of neutral states under those circumstances, is one for which there is absolutely no foundation either in history or in law.

Now, the real circumstances connected with those rules will be best understood, I

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 yon 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 belliger ents 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,” &e. 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, of 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.

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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, judgment, we think best, to preserve an impartial neutrality, and to protect our terri tory 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 per missible, 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,