"depend upon municipal means" for the enforcement of such international obligations as are now in question with Great Britain. Legal powers conferred upon the President of the United States by Acts of Congress for the performance of international obligations, are as much "municipal means" as legal powers conferred upon the Sovereign of Great Britain by an Act of the British Parliament, for the like purpose.

With respect to the second passage, it is to be observed, that it not only imputes as want of due diligence the abstinence from the use of arbitrary powers to supply a supposed deficiency of legal powers, but it assumes that the United States has a right, by international law, to expect Great Britain to prevent the exportation from her territory of what it describes as "contributory provisions," arms, munitions, and "subsidiary aids of warlike equipment and supplies," though such elements of armaments were uncombined, and were not destined to be combined, within British jurisdiction, but were exported from that territory under the conditions of ordinary exports of articles contraband of war. For such a pretension no warrant can be found either in international law, or in any municipal law of Great Britain, or in any one of the three Rules contained in the VIth Article of the Treaty of Washington.

The third passage requires more particular attention, because it presents, in a particularly striking manner, a radically false assumption, which pervades many other portions of the United States Argument, viz, that the acts done within British jurisdiction, which Great Britain is said not to have used due diligence to prevent, were "acts of war" by British subjects or commorant foreigners against the United States, justifying and calling for similar means of repression to those which might be necessary in a case of "rebellion or revolt, i. e., of domestic war."

16. The British

Crown has power, ly

common law, to use civil,

the military the realm to aton

of war within

It is impossible too pointedly to deny the truth of this assumption, or too positively to state that, if any military or naval expeditions, or any other acts or operations of war against the United States, in the true and proper sense of those words, had been attempted within British territory, it would not have been necessary for the British Government either to British territory, suspend the Habeas Corpus Act or to rely on the Foreign Enlistment Act, in order to enable it to intercept and prevent by force such expedi tions or such acts or operations of war. The whole civil police, and the whole naval and military forces of the British Crown would have been lawfully available to the Executive Government, by the common law of the realm, for the prevention of such proceedings. But the fact is, that nothing of this kind ever happened or was attempted, during the civil war in the United States, in Great Britain, or in any of the British Possessions, except (in the year 1863-264) in some of the British North American Provinces; and, when such attempts were made in those provinces, the powers of the common law were at once put in force for their repression, and were strengthened by special and extraordinary legis lation; nor is any complaint now made by the Government of the United States of any want of due diligence on the part of the British North American authorities in that respect. Not only was no military or naval expedition and no act or operation of war ever attempted elsewhere within British territory against the United States, but (unless the arming of the Florida at Green Cay, in the Bahamas, be an exception) no attempt was ever made in any other part of the British dominons, so much as to equip or dispatch for the Confederate service any armed vessel, by which the question whether it had or had not the character

of a naval expedition prohibited by international law might have been raised.

17. The assertion

that Great Britai

relies

and not on preven

(C.) The next propositions are, that "Great Britain alone pretends that punitive law is the measure of neutral duties"-that of the United States the powers vested in the Executive Government of Great on Punitive Britain by the Foreign Enlistment Act of 1819 were punitive tive law, disproved. only, and not preventive-and that (D) "all other Governments, including the United States, prevent peril to the national peace through means of prerogative force, lodged, by implied or express constitutional law, in the hands of the Executive."

It is necessary to notice, in passing, (with reference to the points (A) and (B,) already dealt with,) the fallacy here introduced by the improper use of the term "prerogative force," to signify definite legal powers, vested by law in the Executive Government of a nation. Such is not the sense in which the word "prerogative" is used in Great Britain; nor does it appear to be that in which it is used in the parts of the American Argument already dealt with.

18. The preventive

The answer to proposition (C) is, simply, that it is without foundation in fact. Great Britain has never pretended that punitive power of the British law is the measure of neutral duties; it is not true that the law explained. powers vested in the Executive Government of Great Britain by the Foreign Enlistment Act of 1819, were punitive only and not preventive. If the powers given, by the Acts of Congress already mentioned, to the President of the United States, can with any propriety of language be described as powers to "prevent peril to the national peace by means of prerogative force," the same description is equally applicable to the powers given to the Executive Government of Great Britain, by the Foreign Enlistment Act of 1819.

That Act, as already noticed, prohibited under penalties the equipment or armament of ships for foreign belligerent service; the augmentation of the warlike force of foreign ships of war; and the enlistment or recruitment of men for foreign belligerent service. It prohibited also any attempt or endeavor to do any of those acts—the prohibition as to ships, &c., being restricted to acts done, or attempts made, within British jurisdiction. So far as this Act imposed penalties, it was of course punitive. But it was preventive also, (for which reason it struck at attempts and endeavors, as well as acts)-and prevention was the main purpose for which it was passed, as appears from the preamble, which recites, that the laws previously in force "were not sufficiently effectual for preventing the prohibited acts."

These preventive powers are contained in the fifth, sixth, and seventh sections. The fifth and sixth sections authorized the Executive Government, in any part of the British dominions, upon receiving information on oath of the violation of the provisions against enlistment by persons on board any vessel within British jurisdiction, to detain such vessel. and prevent her from proceeding to sea on her voyage with the persons so unlawfully enlisted on board; and also to detain her until certain penalties had been paid, if her commander had been privy to the unlawful enlistment. The seventh section authorized any officer of Cus toms or Excise, or any other officer of the British navy, by law empowered to make seizures for any forfeiture incurred under any of the laws of Customs or Excise or the laws of trade and navigation, to seize any ship or vessel equipped or armed, or attempted to be equipped or armed, contrary to its provisions, in such places and in such manner, in which the same officers respectively would be empowered to make seizures

under the laws of Customs or Excise, or under the laws of trade and navigation.

The powers of seizure (to be followed afterward by proceedings in the Court of Exchequer for the condemnation of the vessel) which from 1860 to 1866 were available for the purpose of prevention under this statute, are contained in section 223 of the British Customs Law Consolidation Act of 1853, and in section 103 of the Merchant Shipping Act of 1854. By section 223 of the Customs Act, power was given to any officer of Her Majesty's Navy, duly employed for the prevention of smuggling, and on full pay, or any officer of Customs or Excise, to seize or detain, in any place, either upon land or water, all ships and boats, and all goods whatever, liable to forfeiture. By section 103 of the Merchant Shipping Act, power was given to any commissioned officer on full pay in the naval service of Her Majesty, or any British officer of Customs, to seize and detain any ship, which might, either wholly or as to any share thereof, have become liable to forfeiture under that Act.

The papers before the Arbitrators contain several instances of the employment of officers in Her Majesty's naval service, both at Liverpool and at Nassau, for the execution of duties connected with the enforcement of these laws. In most cases those duties were intrusted in practice to the officers of Her Majesty's Customs; but the whole naval force of the British Kingdom might, in case of need, have been lawfully employed, within British jurisdiction, in aid of those officers. When the Georgia was reported to have gone to Alderney, a British ship of war was sent there after her; and if the commander of that ship had found her in British waters, and had ascertained the existence of any grounds warranting her detention, she would have been undoubtedly detained by him. Whenever evidence was forthcoming of an actual or contemplated illegal equipment of any vessel within British jurisdiction, there was ample preventive power under these statutes. Without such evidence, no rule of international law gave a foreign State the right to require that any vessel should be prevented from leaving the British dominions.

19. The doubtful

points as to the con

struction of the British Foreign Enlistment Act never al

fected the diligence

of the British Government.

The United States have referred, in their Argument, to the question raised as to the interpretation of the British Foreign-Enlistment Act before the English Court of Exchequer, in the case of the Alexandra, and to the opinion in favor of its more restricted construction, which prevailed in that case; the judges being equally divided, and the right of appeal being successfully contested on technical grounds. But in another case (that of the Pampero) a Scottish Court of equal authority adopted the more extended construction upon which the British Government, both before and after the case of the Alexandra, always acted; and, as no vessel was ever employed in the war service of the Confederate States, which was enabled to depart from Great Britain by reason of this controversy as to the interpretation of the Act, it would seem to be of no moment to the present inquiry, even if it had related to a point, as to which Great Britain owed some antecedent duty to the United States by international, as distinguished from municipal, law. But the controversy did not in fact relate to any such point. There was no question as to the complete adequacy of the provisions of that Statute to enable the British Government to prevent the departure from British jurisdiction of any warlike expedition, or of any ship equipped and armed, or attempted to be equipped and armed, within British jurisdiction, for the purpose of being employed to cruise or carry on war against the United States. The sole question was, whether the language of the prohibition

comprehended a ship built and specially adapted for warlike purposes, but not armed or capable of offense or defense, nor intended so to be, at the time of her departure from British jurisdiction. All the judges were of opinion that the departure of such a ship from neutral territory was not an act of war, was not a hostile naval expedition, and was not prohibited, inter gentes, by general international law; and two of them thought that, not having any of those characters, it was also not within the prohibitions of the Statute; while the other two were of opinion that the existence of those characters was not, under the words of the law, a necessary element in the municipal offense.

20. Baron Bram

ternational, as dis

The language of Baron Bramwell, an eminent British well's view of the in- Judge, (afterwards a member of the British Neutrality tinet from municipal Laws Commission,) explains clearly and forcibly the view of the case, as it would have stood under international law only, which was taken by the entire Court:

obligation, agreed

with that of the

American Attorney-
General in 1841.

If we look at the rights and the obligations created by international law, if a hostile expedition, fitted out by a State, leaves its territory to attack another State, it is war; so also, if the expedition is fitted out, not by the State but with its sufferance, by a part of its subjects or strangers within its territories, it is war, at least in the option of the assailed. They would be entitled to say, either you can prevent this or you cannot. In the former case it is your act, and is war; in the latter case, in selfdefense we must attack your territory, whence this assault on us proceeds. And this is equally true, whether the State assailed is at war or at peace with all the world. The right in peace or war is not to be attacked from the territory of another State; that that territory shall not be the basis of hostilities. But there is no international law forbidding the supply of contraband of war; and an armed vessel is, in my judgment, that and nothing more. It may leave the neutral territory under the same conditions as the materials of which it is made might do so. The State interested in stopping it must stop it as it would other contraband of war, viz, on the high seas.

Not only is the doctrine thus stated conformable to all the authorities of international law, to which reference has been made in the earlier part of this paper, but the same doctrine was officially laid down by Mr. Legare, then Attorney General of the United States, in December, 1841, when advising his Government that two schooners of war, built and fitted out, and about to be furnished with guns and a military equipment, in New York, for Mexican service against Texas, ought to be treated as offending against the Act of Congress of 1818. He says:

The policy of this country (the United States) is, and ever has been, perfect neutrality, and non-interference in the quarrels of others. But, by the law of nations, that neutrality may, in the matter of furnishing military supplies, be preserved by the two opposite systems, viz, either by furnishing both parties with perfect impar tiality, or by furnishing neither. For the former branch of the alternative it is superfluous to cite the language of publicists, which is express, and is doubtless familiar to you. If you sell a ship of war to one belligerent, the other has no right to complain, so long as you offer him the same facility. The law of nations allows him, it is true, to confiscate the vessel as contraband of war, if he can take her on the high seas; but he has no ground of quarrel with you for furnishing or attempting to furnish it. But, with a full knowledge of this undoubted right of neutrals, this country has seen fit, with regard to ships of wat, to adopt the other branch of the alternative, less profitable with a view to commerce, but more favorable to the preservation of a state of really pacific feeling within het borders. She has forbidden all furnishing of them, under severe penalties. (British Appendix, vol. v, p. 360.)

21. On the argu

V.-On the preventive powers of the Laws of Foreign Countries. (D.) It now becomes necessary to observe upon the proposition, that "all other Governments, including the United States, prements as to due dili Vent peril to the national peace through means of prerogaUnited States from tive force, lodged by implied or express constitutional law in the hands of the Executive." In other words, a general want of diligence is sought to be established against Great Britain,

gence derived by the

foreign laws.

by an argument derived from the laws of the United States, and of other countries, with a view to show, by the comparison, the insufficiency of the preventive powers of British law.

To the whole principle of this argument, so far as it relates to matters not prohibited by the general law of nations, Great Britain demurs; and, even with respect to matters which are prohibited by that general law, it is obvious that nothing can be more fallacious than an attempt at comparison, which, without exact and special knowledge of the whole complex machinery of laws, judicature, and legal procedure, and political and civil administration, which prevails in each different country, can pretend to decide on the relative efficiency of those various laws for political purposes. The materials, however, on which reliance is placed for this comparison in the American Argument, are so manifestly scanty and insufficient as to make the answer to this part of the argument simple, even if it were in principle admissible.

As to the laws of France, Italy, Switzerland, Portugal, Brazil, Belgium, and the Netherlands, and, in fact, of almost every country mentioned in the Argument, except the United States, it can hardly be thought that the Counsel for the United States understand these laws, which are all substantially the same, better than M. Van Zuylen, the Netherlands Minister, who has to administer them, and who, in reply to certain inquiries from the British Chargé d'Affaires at the Hague,

wrote:

There is no code of laws or regulations in the Kingdom of the Netherlands concerning the rights and duties of neutrals, nor any special laws or ordinances for either party on this very important matter of external public law. The Government may use Articles 84 and 85 of the Penal Code, but no legislative provisions have been adopted to protect the Government, and serve against those who attempt a violation of neutrality. It may be said that no country has codified these regulations and given them the force of law; and, though Great Britain and the United States have their Foreign-Enlistment Act, its effect is very limited.

This language is criticised in the American Argument as "inaccurate,” but it is in reality perfectly exact, for such provisions as those of Articles 84 and 85 of the French Penal Code cannot possibly be described as either prohibiting or enabling the Government to prevent those definite acts and attempts against which it was the object of the British and the American Foreign-Enlistment Acts to provide. These Articles are punitive only, and they strike at nothing but acts, unauthorized by the Government, which may have "exposed the State to a declaration of war," or "to reprisals." The language of the corresponding laws of almost all the other States, except Switzerland, is admitted to be similar. That of Switzerland prohibits generally, under penalties, all "acts contrary to the law of nations," while it regulates (by enactment, the particular provisions of which are not stated) the enlistment of troops within the Swiss Federal territory."

No man having the least knowledge of the laws and constitutional systems of Great Britain and the United States can be supposed to imagine that enactments conceived in these vague and indefinite terms, if they had been adopted by either of those countries, would have been of the smallest use for the purpose of preventing such acts as those of which the Government of the United States now complain; much less that they would have been comparable in point of efficiency with the definite means of prevention provided and directed against attempts, as well as acts, by the Acts of Congress and of Parliament, which were actually in force in those nations respectively.

But it is assumed, in the Argument of the United States, that these special laws were in all these countries supplemented by an elastic and