principles of international jurisprudence, and the absence of which constitutes negligence.1 Meaning of the words ground to believe," 27. When it is said that a Government has reasonable grounds to be lieve that an act is intended, which act the Government, if reasonable it possess such reasonable grounds, is bound to endeavor to prevent, and can prevent only by the enforcement of a law, more is meant than that the Government has grounds for suspicion, founded on rumor or mere circumstances of probability. Such grounds as these may indeed determine a Government to undertake voluntarily the responsibility and risk of trying to enforce the law; but they cannot create an obligation. This can only arise when the Government has adequate grounds, not for suspicion only, but for belief, that is, for such a belief as is sufficient to justify it in setting the machinery of the law in motion. "Due diligence." 4 28. Due diligence on the part of a Government signifies that measure of care which the Government is under an obligation to use for a given purpose. This measure, where it has not been defined by international usage or agreement, must be deduced from the nature of the obligation itself, and from those considerations of justice, equity, and general expediency on which the law of nations is founded.2 29. Where the substance of the obligation consists in the prevention of certain acts within the territory of a neutral power, from the consequences of which loss might arise to foreign States or their citizens, it would not be reasonable to exact, as of right, from the Government, a measure of care exceeding that which Governments are accustomed to exert in matters affecting their own security or that of their own citi zens. No duty which nation owes to nation can possibly be higher or more imperative than that which every State owes to its own members, for whose welfare it exists, and to whom the Government, however coustituted, is morally and primarily responsible for the right exercise of its powers. An extract from the able Danish jurist, Tetens, bearing on manifestly just and reasonable principle, has been given in a note at page 23 of the British Counter Case. 30. An observation to the same effect as the foregoing in the Case of Great Britain has been excepted to in the Counter Case of the United States, on the ground that "it sets up as the measure of care a standard which fluctuates with each succeeding Government in the circuit of the globe. This is an error. Where individuals are in question, the only general standards of due care which it has been found possible to frame, are framed with reference either to the care which the particular individual, against whom negligence is alleged, is accustomed to exert in his own concerns, or to the care which men in general, or particular classes of men, are accustomed to exert in their own concerns. To standards of this kind, with various modifications and under different forms of expression, jurists and judicial tribunals in all countries have commonly had recourse, to assist them to a decision in cases of alleged negligence. Where the acts or omissions of a Government are in question, it is cer tainly not unreasonable that the general standard of care, so far as any general standard is possible, should be drawn from the ordinary con duct of Governments in matters affecting those interests which they are primarily bound to protect. The objection suggested by the United States, that the standard is a fluctuating one, is therefore not only 1 British Counter Case, p. 21. 2 British Case, p. 24, proposition 9. 3 British Case, p. 167. Counter Case of the United States, sec. ii, par. 3. erroneous in itself, but might with equal reason be urged against the principles of decision commonly applied to analogous cases in the administration of private law. 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. 31. Great Britain has, however, submitted to the arbitrators that the question, what measure of care is in a given case sufficient to constitute due diligence, cannot be defined with precision in the form of a general rule, but must be determined on a careful consideration of all the circumstances of the given case. In the British Counter Case the history and experience of the United States themselves, during the war between Great Britain and France at the close of the last century, during the wars between Spain and Portugal and their revolted colonies, and still more recently in the cases of expeditions and hostile movements organized within the United States against Mexico, Cuba, and Great Britain, has been largely referred to, for the purpose of showing what has heretofore been deemed sufficient by the Government of the United States to satisfy the obligations incumbent upon them in this respect toward other nations, and how imperfect a measure of success has attended their efforts to restrain their citizens from lawless acts, inconsistent with those obligations. The statements in the British Counter Case on this subject will be found to be corroborated by the papers appended to the Counter Case of the United States. Those papers show the various instructions and proclamations issued with the object of preventing violations of the American law. The British Counter Case shows how, for a long series of years, and also very recently, those instructions and proclamations have been successfully evaded. Mr. Seward, in his dispatch to Mr. Adams, dated the 2d March, 1863, thought it sufficient to express the desire and expectation of the President that Her Majesty's Government would "take the necessary measures to enforce the execution of the law as faithfully as his own Government had executed the corresponding statutes of the United States." 3 This is a test of due diligence, by which Her Majesty's Government might safely be content to have its conduct tried. It does not believe that upon any candid mind the comparison would leave an impression to the disadvantage of Great Britain. "3 tive in Great Britain. 32. It is absolutely necessary, in considering charges such as are made against Great Britain by the United States, to take British law, and into account, for some purposes, the laws and institutions powers of the Execu of the nation charged, the powers with which its Government is invested, and its ordinary modes of administrative and judicial procedure. These are among the circumstances which bear on the question of negligence, and they have a most material bearing on it. In all civilized countries, the Government possesses such powers only as are conferred on it expressly or tacitly by law; the modes of ascertaining disputed facts are regulated by law; through these powers the Executive acts, and to these methods of inquiry it is bound to have regard. To exclude these from consideration in questions relating to the performance of international duties, would at once render such duties intolerable and their performance impossible. 33. These considerations in no way affect the principle that the duties of neutrality are in themselves independent of municipal law. Those duties are not created by municipal law; they cannot be abol ished or altered by it. But since, in the discharge of international 2 Ibid., pp. 25-47. 1 British Counter Case, pp. 22, 125. 3 Appendix to Case of the United States, vol. i, p. 669. duties, every nation acts through its Government, and each Government. is confined within the sphere of its legal powers, the local law and local institutions cannot be disregarded when the question arises, whether in a given case a Government had sufficient grounds of belief to proceed upon, and whether it acted with proper diligence. 34. It was, therefore, material to show what, at the time when the acts complained of by the United States are alleged to have been done, was the state of British law in relation to such matters; what powers the Executive Government possessed; in what modes those powers could be exercised; and what were the general rules of administrative and judicial procedure, including those relating to the judicial investigation of facts and the reception of evidence. 35. In reference to this part of the question the following propositions, already laid down on the part of Great Britain, may be repeated here: In every country where the Executive is subject to the laws, foreign States have a right to expect (a.) That the laws be such as in the exercise of ordinary foresight might reasonably be deemed adequate for the repression of all acts which the Government is under an international obligation to repress, when properly informed of them; (b.) That, so far as may be necessary for this purpose, the laws be enforced and the legal powers of the Government exercised. But foreign States have not a right to require, where such laws exist, that the Executive should overstep them in a particular case, in order to prevent harm to foreign States or their citizens; nor that, in order to prevent harm to foreign States or their citizens, the Executive should act against the persons or property of individuals, unless upon evidence which would justify it in so acting if the interests to be protected were its own or those of its own citizens. Nor are the laws or the mode of judicial or administrative procedure which exist in one country to be applied as constituting a rule or standard of comparison for any other country. Thus, the rules which exist in Great Britain as to the admission and probative force of various kinds of testimony, the evidence necessary to be produced in certain cases, the questions proper to be tried by a jury, the functions of the Executive in regard to the preven tion and prosecution of offenses, may differ, as the organization of the magistrature and the distribution of authority among central and local officers also differ, from those which exist in France, Germany, or Italy. Each of these countries has a right, as well in matters which concern foreign States or their citizens as in other matters, to administer and enforce its own laws in its own forum, and according to its own rules and modes of procedure; and foreign States cannot justly complain of this, unless it can be clearly shown that these rules and modes of procedure conflict in any particular with natural justice, or, in other words, with principles commonly acknowledged by civilized nations to be of universal obligation.1 36. It has been shown that the law of Great Britain, as it existed at the time of the civil war in the United States, was such as, in the exercise of ordinary foresight, might reasonably be deemed adequate for enabling the British Government to perform its obligations as a neutral Government. It was modeled upon the law of the United States, which had long existed and had frequently been brought under consideration in the courts of that country; it equaled that law and even surpassed it in stringency; and offenses against it (if any there were) had been so rare British Case, pp. 24, 25; see also British Counter Case, pp. 72, 73. as to have left hardly any trace in the judicial records of Great Britain.1 Compared with the laws of other countries, which have been collected and placed before the Arbitrators, it will appear to have been (as it really was) singularly stringent in its prohibitions, and copious and particular in detail. But the question is not whether it was stricter or less strict than the laws of other countries, but whether it was such as might reasonably be deemed sufficient in the exercise of ordinary foresight. It is impossible to deny that it was such. 37. It appears to be suggested, on the part of the United States, that some defect or defects, which might not have been foreseen, in the law of Great Britain, was or were brought to light by the case of the Alabama, and that the law ought to have been amended in consequence of this discovery. The answer to this is that, as respects the Alabama herself, the question of the liability of Great Britain, on account of her departure from this country, must be tried on the facts as they existed at that time, and not upon any subsequent state of facts. In respect of the Alabama, Great Britain must be held to be liable (if at all) on the ground that her Government failed to prevent the departure of the Alabama, and not on the allegation that she did not afterward amend her law, and thus failed to arrest the Georgia or the Shenandoah. But, further, it has been already shown that the departure of those two vessels was in no respect due to any deficiency in the law. It is not only true that the law of Great Britain was then more stringent than that which existed at the time in the United States, and has ever since been, and now is, deemed sufficient in that country, and which, a year after the departure of the Alabama, (July 11, 1863,) was spoken of by Mr. Seward as "exactly similar to that of Great Britain;" but it is also clear that, if the law of Great Britain had, in truth, been an exact copy of that of the United States, and had been interpreted and enforced in precisely the same way, no facts existed-much less were known to the British Government-which would have warranted the arrest of either of these latter vessels for a breach of that law. 1 British Case, pp. 29, 30. 2 Appendix to Case of the United States, vol. i, p. 670. For evidence as to the particulars in which the British law is more stringent than that of the United States, see the opinion of Mr. Bemis, quoted in Annex (B) to the British Counter Case, (p. 149.) In the Counter Case of the United States (section iii, par. 11) the attention of the Arbitrators is called to a dispatch from Sir Frederick Bruce, British Minister at Washington, as furnishing evidence of the superiority of the United States' statute over the British act. But the dispatch referred to nowhere mentions the British Foreign-Enlistment Act, nor does it attempt to make any comparison between the statutes of the two countries. The passage quoted in the Counter Case of the United States will be found, when taken in its entirety, to refer merely to the advantages possessed by the United States Government in proceeding against vessels, as contrasted with the comparative difficulty of proceedings under the same law directed against persons. "I may remark," writes Sir F. Bruce, "that the Government of the United States has considerable advantages in proceeding against vessels under the statute. They have, on the spot where the preparations are being made, the district attorney, a legal officer responsible to the Government, to whom the duty of investigation is committed. The libel is in the nature of a proceeding in admiralty in rem. It is decided by a judge conversant with international and maritime law, and without the intervention of a jury. The failure of the attempt to stop or punish the persons engaged in the expeditions against Cuba, and the suspension of the proceedings against the men who took part in the Fenian raids against the British provinces, in spite of the clearest evidence, shows the difficulty of enforcing the law when it has to be put in operation in personam, and when it is dependent on the verdict of a jury." (Appendix to Case of the United States, vol. iv, p. 182. Appendix to British Case, vol. iii. Report of Neutrality Laws Commission, p. 68.) In Annex (A) at the end of this summary will be found a review of all the communications which passed during the war between the British and American Governments with reference to the state of the neutrality law of Great Britain. 38. Again, to the allegation that, on a particular point-the question whether a vessel specially adapted by construction for belligerent use, though not armed so as to be immediately capable of hostilities, was within the prohibitions of the Foreign-Enlistment Act-the provisions of the Act were regarded as of doubtful construction, and that in one case (that of the Alexandra) the doubt was resolved in the negative by a decision of a British Court, the members of which were equally divided in opinion about it, the answer (if any answer can be supposed to be necessary) is equally clear. The Act itself was, on this point, expressed in more stringent language than that of the United States; the legal advisers of the Government, and the Government itself on their advice, did not act on the laxer, but on the more severe, construction of it; the doubt referred to was never judicially raised till June, 1863, and it did not, in any case which afterwards occurred, operate to prevent the detention of any vessel which was intended to be employed in cruising or making war against the United States. It may be true that the law admitted of two different constructions on this point in Eugland, as it certainly did in the United States; it may be true that it bad, before 1863, been (to some, though only to a very limited, extent) judicially interpreted in the United States, whilst no case calling for a judical interpretation had occurred in England; but it is clearly impossible to contend that it must for that reason be considered to have been, before 1863, less stringent in England than in the United States, or to argue that because some officers of a particular Department of Government (that of the Customs) honestly understood it in the less stringent sense, this fact constituted a failure of international duty on the part of Great Britain. 39. It is, therefore, abundantly clear that no argument against Great Britain can be founded on any supposed defect in the Foreign-Enlistment · Act. 40. As to the general powers of the Executive Government in Great Britain and the rules of procedure established there, the following statements have been made on her part to the Arbitrators. (a.) The Executive cannot deprive any person, even temporarily, of the possession or enjoyment of property, nor subject him to bodily restraint, unless by virtue and in exercise of a power created and conferred on the Executive by law. (b.) No person can be visited with a forfeiture of property, nor subjected to any penalty, unless for breach of a law, nor unless such breach is capable of being proved against him. (c.) Under the Foreign-Enlistment Act the Government had no power to seize or detain a ship, unless with a view to subsequent condemnation in due course of law, and on the ground of an infringement of the law sufficient to warrant condemnation. (d.) Before authorizing the condemnation of a suspected vessel, the law required that the facts alleged against her should be capable of proof. Open investigation before a Court is the mode appointed by law for sifting all allegations and distinguishing ascertainable facts from mere rumor. This is an ordeal which a British Government must always be prepared to encounter if, in the exercise of the powers intrusted to it, it seizes or interferes with the person or property of any one within its jurisdiction. The British Government, therefore, justly held itself entitled and bound, before seizing any vessel, either to have suffi cient proof in its possession or to have reasonable grounds for believing that it would be forthcoming before the trial of the case should begin. (e.) By proof, in an English court of law, is understood the produc |