consistent with the practice and experience of the United States themselves, who have appealed in their own Case and Counter Case, and in the Appendix to their Counter Case, to most of the very same transactions (which Great Britain is now alleged to have improperly brought forward) as actually furnishing evidence of the efficacy of their laws, and of the diligence and good faith with which those laws have been executed.

IX. In conclusion, we respectfully submit to the Arbitrators that the sense of the treaty is plain, and that it imperatively forbids any such action, direct or indirect, as is proposed in the Memorandum.

In preparing their arguments the Counsel on both sides considered the question, and without mutual conference they both came to the same conclusion, and expressed it in substantially the same spirit, with difference of language only. In the expression of courteous deference to the Arbitrators, we beg the Tribunal on this point to look at page 1 of the British, and page 6 of the American Argument.

We have not discussed here the argumentative points of the Memorandum, as we might well have done, considering all such discussion inappropriate at this time.

Finally, we need say little on the question of convenience; but we cannot forbear to say that as to the Arbitrators, as we may well suppose, but certainly for ourselves, for whom alone we have a right to speak, prolonged debate involves cares, and inconveniences of separation from home and from our personal and professional affairs, which do not apply to the Counsel of the British Government.

In this view and in other relations, we respectfully suggest that the Arbitrators, if they need elucidation of any point, should propose specifically such point and require Counsel to argue viva voce, face to face, in the presence of the Tribunal.

C. CUSHING.

WM. M. EVARTS.

M. R. WAITE.

III.-ARGUMENT OF SIR ROUNDELL PALMER ON THE QUESTIONS OF “DUE DILIGENCE," THE "EFFECT OF COMMISSIONS UPON THE INSURGENT CRUISERS," AND THE SUPPLIES OF COAL TO SUCH CRUISERS IN BRITISH PORTS.'

[Filed July 29.-See Protocol xv.]

CHAPTER I.—ON THE QUESTION OF "DUE DILIGENCE" GENERALLY

CONSIDERED.

When the inquiry is, whether default has been made in the fulfill, ment of a particular obligation, either by a state or by an 1. On the sources individual, it is first necessary to have an accurate view of of the obligation. the ground, nature, and extent of the obligation itself.

The examination of this question will be simplified by consideringin the first instance, such a case as that of the Alabama, at the time of her departure from Great Britain, namely, a vessel built and made. ready for sea, with special adaptation for warlike use, by British shipbuilders in the course of their trade, within British territory, to the order of an agent of the Confederate States, but not armed, nor capable of offense or defense at the time of her departure.

Any obligation which Great Britain may have been under toward the United States, in respect of such a vessel, could only be founded, at the time when the transaction took place, (1) upon some known rule or principle of international law; or (2) upon some express or implied engagement on the part of Great Britain.'

The three rules contained in the VIth Article of the treaty of Washington become elements in this inquiry solely by virtue of the declaration made in that article, that

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Her Majesty's government cannot assent to the foregoing rules as a statement of principles of international law which were in force at the time when the claims mentioned in Article I arose; but that Her Majesty's government agree that, in deciding the questions between the two countries arising out of those claims, the arbitrators should assume that Her Majesty's government had undertaken to act upon the principles set forth in those rules.

In order rightly to understand the effect of the agreement embodied in this declaration, it is important to see how the question between the two governments would have stood without it.

I.-As to the rules and principles of international law.

2. Source I. Rules ternational law.

These must be obtained from the authorities which show what had previously been received and understood among nations as to the obligations of neutral states toward belligerents; and principles of inremembering always, that what is called international law (in the absence of particular compacts between states) is imposed only by the moral power of the general opinion and practice of civilized nations; that, (in the words of Lord Stowell, quoted with approval by the great American jurist, Wheaton, "Histoire des Progrès du Droit des Gens," vol. i, p. 134,) "une grande partie du droit des gens est basée sur l'usage et les pratiques des nations. Nul doute qu'il a été introduit

par des principes généraux, (du droit naturel;) mais il ne marche avec ces principes que jusqu'à un certain point; et s'il s'arrête à ce point nous ne pouvons pas prétendre aller plus loin, et dire que la seule théorie générale pourra nous soutenir dans un progrès ultérieur."

In a case in which no active interference in war is imputed to a neutral state, international law knows nothing of any obligation of that state toward a belligerent, as such, except to preserve its neutrality. To constitute a merely passive breach of neutrality on the part of such a state, some act must have been done by, or in aid of, a belligerent, for the purposes of the war, which, unless done by the permission of the neutral state, would be a violation of its territory, or of its sovereignty or independence within that territory, and such act must have been expressly or tacitly permitted on the part of the neutral government. For acts done beyond the neutral jurisdiction by subjects of the neutral power, to the injury of a belligerent, the law of nations has appropriate remedies; but those acts, involving no violation or hostile use of neutral territory, are not imputed as breaches of neutrality to the neutral state. And for a violation or hostile use of neutral territory without the permission or intentional acquiescence of the neutral state, reparation may be due from the offending belligerent to the injured neutral, but the neutral so injured has been guilty of no breach of any neutral obligation toward the other belligerent, whether he does, or does not, subsequently obtain reparation from the offender.

Between the commercial dealings of neutral citizens, in whatever kinds of merchandise, (and whether with the citizens or with the governments of belligerent states,) and the levying or augmentation of military or naval forces, or the fitting out and dispatch of military or naval expeditions by a belligerent within neutral territory, international law has always drawn a clear distinction. The former kind of dealings, if they are permitted by the local law of the neutral state, involve on the part of that state no breach of neutrality; if they are prohibited, a disregard of the prohibition is not a violation or hostile use of the neutral territory, but is an illegal act, the measure of which, and the remedies for which, must be sought for in the municipal and not in international law. The other class of acts cannot be done against the will of the neutral sovereign without a violation of his territory, or of his sovereignty and independence within that territory; and to permit this, for the purposes of the war, would be a breach of neutrality.

The continuance during the war, within the neutral territory, of trade by neutral citizens with both or either belligerent, in the produce or manufactures of the neutral state, whether of those kinds which (when carried by sea to a belligerent) are denominated contraband of war, or of any other description, has always been permitted by international law, and no authority, anterior to the departure of the Alabama from Great Britain, can be cited for the proposition that unarmed ships of war, constructed and sold by neutral ship-builders in the course of their trade, were, in the view of international law, less lawful subjects of neutral commerce with a belligerent than any other munitions or instruments of war.

The authorities on this subject are quoted at large in Annex (A) to the British Counter Case. Galiani, one of these authorities, argued that the sale in a neutral port, to a belligerent, of a ship not only built but armed for war, ought to be deemed prohibited; but Lampredi, Azuni, and Wheaton rejected that opinion, and held that (the transaction being a commercial one on the part of the neutral seller) the addition even of an armament would make no difference. Story took the same view of

the dispatch by a neutral citizen of a ship of war fully armed from the neutral territory to a belligerent port, with a view to her sale there to a belligerent power. Mr. Adams himself, in his official correspondence with Earl Russell, (April 6, 1863,2) admitted the soundness of these doctrines, assuming the transaction of sale and transfer by the neutral to be "purely commercial;" and also assuming the belligerent country, to which such vessels of war might be sold and transferred, to be "not subject to blockade." It cannot, however, be seriously imagined that the existence of a blockade of the ports of the belligerent purchaser would make such a transaction, if it would otherwise be lawful, a violation of the neutrality of a neutral state, in the view of international law.

It may be true that, when an armed ship of war is sold to a belligerent within neutral territóry and goes to sea from thence fully capable of offense and defense under the control of the belligerent purchaser, there would often, (perhaps generally,) exist grounds for contending that the transaction was not substantially distinguishable from the dispatch of a naval expedition by the belligerent from the neutral territory; and this was doubtless a cogent reason for the special legislation of the United States and of Great Britain, which, (whatever further scope it may have had,) was undoubtedly intended to prevent such expeditions, by striking at the armament of ships of war within neutral territory, for the service of a belligerent. But the case of a ship leaving the neutral country unarmed is, in this respect, wholly different. Her departure is no operation of war; she is guilty of no violation of neutral territory; she is not capable, as yet, of any hostile act. The words of Mr. Huskisson in the debate on the Terceira expedition in the British Parliament, (Huskisson's Speeches, vol. iii, p. 559,) and of Mr. Canning, as there quoted by him, are strictly applicable to such a case, and deserve reference as showing the view of this subject taken long ago by those eminent British statesmen. Speaking of certain complaints made by Turkey during the Greek revolutionary war, he said:

To these complaints we constantly replied: "We will preserve our neutrality within our dominions, but we will go no further. Turkey did not understand our explanation, and thought we might summarily dispose of Lord Cochrane, and those other subjects of Her Majesty who were assisting the Greeks." To its remonstrance Mr. Canning replied: "Arms may leave this country as matter of merchandise; and however strong the general inconvenience, the law does not interfere to stop them. It is only when the elements of armaments are combined that they come within the purview of the law; and, if that combination does not take place until they have left this country, we have no right to interfere with them." Those were the words of Mr. Canning, who extended the doctrine to steam vessels and yachts, that might afterward be converted into vessels of war, and they appear quite consistent with the acknowledged law of nations.

II.—As to an express or implied engagement of Great Britain.

3. Source II. Ex

Great Britain had no treaty or convention with the United States as to any of these matters, but she had, in 1819, for the protection of her own peace and security, and to enable her the bet- press or implied enter to preserve her neutrality in cases of war between other Britain. countries, enacted a municipal law prohibiting, under penalties, (among

gagements of Great

Sir R. Phillimore, in vol. iii of his work, (published in 1857,) rejects the distinction of these writers between the export of contraband and the sale of the same kinds of articles within the neutral territory. But he does not, of course, maintain that it is part of the international duty of a neutral state to prohibit or prevent dealings in contraband articles by its subjects in either of these ways.

other things,)" the equipment, furnishing, fitting out, or arming of any ship or vessel within British jurisdiction, with intent or in order that such ship or vessel should be employed in the service of any foreign Prince," (or other bellig erent,) "with intent to cruise or commit hostilities against any Prince, state, or potentate," &c., with whom Great Britain might be at peace. Every attempt or endeavor to do, or to aid in doing, any of these prohibited acts was also forbidden; every ship or vessel which might be equipped, or attempted to be equipped, &c., contrary to these prohibitions, was declared forfeited to the Crown, and the officers of Her Majesty's customs were authorized to seize and to prosecute to condemnation in the British court of exchequer every ship or vessel with respect to which any such act should be done or attempted within British jurisdiction. This law (which was called the Foreign-Enlistment Act) was regarded by Her Britannic Majesty's advisers, not only as prohibiting all such expeditions and armaments, augmentation of the force of armaments, and recruitments of men, as, according to the general laws of nations, would be contrary to the duties of a neutral State, but also as forbidding the fitting out or equipping, or the special adaptation, either in whole or in part, to warlike use, within British ju risdiction, of any vessel intended to carry on war against a Power with which Great Britain might be at peace, although such vessel might not receive, or be intended to receive, any armament within British ja risdiction; and although she might be built and sold by ship-builders in the ordinary course of their trade to the order of a belligerent purchaser, so as not to offend against any known rule of international law. It has never been disputed by Her Majesty's Government that when. at the time of the breaking out of a war, prohibitions of this hibitory municipal kind, exceeding the general obligations of international law, exist in the municipal law of a neutral nation, a belligerent, who accepts them as binding upon himself and renders obedience to them, has a right to expect that they will be treated by the neutral Government as equally binding upon his adversary, and enforced against that adversary with impartial good faith, according to the principles and methods of the municipal law, of which they form part. Obliga tions which are incumbent upon neutral nations by the universal principles of international law stand upon a much higher ground; as to them, a belligerent has a right to expect that the local law should make proper provision for their performance; and, if it fails to do so, the local law cannot be pleaded as constituting the measure or limit of his right. But a right created by the municipal law of a neutral State must receive its measure and limit as much with respect to any foreign belligerent Power as with respect to the citizens of the neutral State itself, from the municipal law which created it. Any engagement of the neutral toward a belligerent State, which may be implied from the existence of such a law, can go no further than this. And if to this is superadded an express promise or undertaking to apply the law in good faith to all cases, to which there is reasonable ground for believing it to be applicable, that promise and undertaking leaves the nature of the obligation the same; it does not transfer the prohibition or the right of the belligerent with respect to the manner of enforcing it from the region of municipal to that of international law.

4. Effect of pro

laws.

Accordingly, the Minister of the United States, during the civil war, constantly applied to Her Majesty's Government to put this municipal law of Great Britain in force. To select two out of a multitude of instances: On the 9th of October, 1862, (soon after the departure of the Alabama,) Mr. Adams sent to Earl Russell an intercepted letter from