tion are offenses against international law, and, being injurious to the United States, fur nished just occasion for resentment on their part, and for reparation and indemnity by Great Britain, unless these offensive acts and occurrences shall be affirmatively shown to have proceeded from conduct and causes for which the Government of Great Britain is not responsible. But by the law of nations the State is responsible for all offenses committed against international law arising within its jurisdiction, by which a foreign State suffers injury, unless the former can clear itself of responsibility by demonstrating its freedom from fault in the premises. (Page 154.)

And again, at page 154:

The nature of the presumptive relation which the State bears to the offenses and injuries imputed and proved necessarily throws upon it the burden of the exculpatory proof demanded: that is to say, the proof of due diligence on its part to prevent the offenses which, in fact and in spite of its efforts, have been committed within its jurisdiction, and have wrought the injuries complained of.

39. In so doing,

In the face of the sixth article of the Treaty, by which Her Majesty expressly declines to assent to the three Rules as a statethey transgress the ment of principles of international law which were in force rules of the Treaty. when these claims arose, but agrees that the Arbitrators may apply these rules to the decision of the claims, upon the footing of an undertaking by Great Britain to act upon their principles-it is here assumed that all such acts or occurrences within British jurisdiction as are mentioned in the Treaty are to be dealt with by the Arbitrators as offenses against international law; notwithstanding the proofs, given in the British Counter Case and the annex (A) thereto, and referred to at the commencement of this paper, that international law never did require a neutral Government to prohibit and prevent the manufacture, sale, and dispatch of unarmed ships of war, by its citizens within its territory, for a belligerent.

In the face of the three Rules themselves, which affirm the obligation of due diligence to prevent, only when there are "reasonable grounds to believe" that some prohibited act has been or is about to be done, the United States decline the burden of establishing, in each or any case, the existence of this preliminary and indispensable condition, reasonable ground for belief; and they ask that this should be taken for granted in every case until it is disproved.

40. The law of na

this attempt.

To justify this disregard of the primary condition of the rules, they appeal to a supposed law of nations, which is said universally tiens does not justify to throw the onus of demonstrating its own freedom from "fault in the premises" upon every State whose citizens commit any offense against international law, injurious to a foreign State within its jurisdiction; which principle, as was shown in the early part of this paper, has never been extended to cases (like the present when the acts in question have been done by individuals or by small numbers of citizens. The United States do not admit themselves to be responsible for all the equipments and hostile expeditions of their citi zens against foreign States which they have failed to prevent, under the propositions that "it is presumed that a Sovereign knows what his subjects openly and frequently commit;" that, "as to his power of hin dering the evil, this likewise is also presumed unless the want of it be clearly proved." But, if those propositions would not be applicable against the United States, why are they to be applied against Great Britain, to cases much further removed in their nature and circumstances from the terms of the propositions?

41. The decision in

the case of the Elize

It happens that there is a decision of weight, of which the United States long ago had the benefit in a former controversy with Great Britain, under circumstances not very dissimilar ners under the in principle, which is directly opposed to this attempt on their part now to alter the burden of proof. The United

eth by the Commis

Treaty of 1794 18

against it.

States come before the Arbitrators under an agreement of the Queen of Great Britain, by which Her Majesty authorizes the Arbitrators to assume that she had undertaken, when the present claims arose, to act upon the principles set forth in the three Rules, though not admitting them to have been then in force as rules of international law. In 1798, Great Britain came before the Commissioners of Claims under the Treaty of 1794, with an actual undertaking by the United States to use all the means in their power to restore all British prizes brought into ports of the United States, after a certain date, by any vessel illegally armed within their jurisdiction, and with an acknowledgment of their consequent obligation to make compensation for such, if any, of those prizes as they might not have used all the means in their power to restore. The undertaking of Great Britain, now to be assumed by the Arbitrators, is conditional upon the existence of "reasonable grounds for belief" of certain facts by the British Government in the case of each of the vessels for which Great Britain is sought to be made responsible. The undertaking of the United States, in 1794, was also dependent upon certain conditions of fact. What was the decision of the Commissioners in the case of the Elizabeth? (British Counter Case, pp. 29, 30, and British Appendix, vol. v, p. 322 :)

"From this examination of the letter, which is given to us for a rule, (Mr. Jefferson to Mr. Hammond, 5th September, 1793,) it results that it was the opinion of the President, therein expressed, that it was incumbent on the United States to make restitution of, or compensation for, all such vessels and property belonging to British subjects as should have been, first, captured between the dates of June 5 and August 7 within the line of jurisdictional protection of the United States, or even on the high seas; if, secondly, such captured vessel and property were brought into the ports of the United States; and, thirdly, provided that, in cases of capture on the high seas, this responsibility should be limited to captures made by vessels armed within their ports; and, fourthly, that the obligation of compensation should extend only to captures made before the 7th August, in which the United States had confessedly foreborne to use all the means in their power to procure restitution; and that, with respect to cases of captures made under the first, second, and third circumstances above enumerated, but brought in after the 7th August, the President had determined that all the means in the power of the United States should be used for their restitution, and that compensation would be equally incumbent on the United States in such of these cases (if any such should at any future time occur) where, the United States having decreed restitution, and the captors having opposed or refused to comply with or submit to such decree, the United States should forbear to carry the same into effect by force.

"Such was the promise. In what manner was that promise to be carried into effect? It was not absolute to restore by the hand of power, in all cases where complaint should be made.

*

*

"No, the promise was conditional. We will restore in all those cases of complaint where it shall be established by sufficient testimony that the facts are true which form the basis of our promise—that is, that the property claimed belongs to British subjects; that it was taken either within the line of jurisdictional protection, or, if on the high seas, then by some vessel illegally armed in our ports; and that the property so taken has been brought within our ports. By whom were these facts to be proved? According to every principle of reason, justice, or equity, it belongs to him who claims the benefit of a promise to prove that he is the person in whose favor, or under the circumstances in which the promise was intended to operate."

XI.-Special questions remaining to be considered.

considered.

These are the arguments, upon the subject of the diligence generally due by Great Britain to the United States, with reference 42. Special ques to the subjects to which the three Rules of the Treaty of tions remaining to be Washington relate, and the principles according to which that diligence is to be proved or disproved, which it has been desired by Her Britannic Majesty's Counsel to submit to the Arbitrators. There remain some other special questions, which require separate examination:

1. Whether the diligence due from Great Britain, as to any vessel equipped contrary to the first Rule, extended to the pursuit of the ves sel by a naval force after she had passed beyond British jurisdiction ?

2. Whether the diligence, so due, extended to an obligation, on the re-entry of any such vessel into a British port, after she had been commissioned by the Confederate States as a public ship of war, to seize and detain her in such port? And,

3. Whether supplies of coal, furnished in British ports to Confederate cruisers, can be regarded as infractions of the second Rule of the Treaty, or as otherwise wrongful against the United States?

XII.-There existed no duty to pursue ships beyond the limits of British jurisdiction.

43. As to the al

suit: The Terceira

Upon the first of these three points, the sole argument of the United States appears to be derived from the precedent of the Terleged duty of pur ceira expedition in 1829. It is a strange proposition, aud expedition. one unsupported by any principle or authority in international law, that, because a Government, which conceived its neutrality laws to have been infringed upon a particular occasion, may have thought fit to visit that offense by extraordinary measures (really in the nature of war or reprisals) beyond its own territory, therefore it placed itself under an obligation to take similar measures upon subsequent occasions, if any such should occur of a like character. In point of fact, there is no similarity between the Terceira case, which (in the view taken of it by the British Government) was an expedition of embodied, tough unarmed troops, proceeding in transports from Great Britain, against an express prohibition of the British Government, for the invasion of a friendly territory, and the departure of unarmed vessels, for the use of the Confederates, from British ports. In point of international law, the British Government was not only under no obligation to pursue the Terceira expedition, but Sir Robert Phillimore (whose authority is so much extolled in the Argument of the United States) distinctly condemns that proceeding. "The Government," he says, "were supported by a majority in both Houses of Parliament; but in the protest of the House of Lords, and in the resolutions of (i. e., moved in) the House of Commons, (which condemned the proceedings of the Government,) the true principles of international law are found." (Commentaries, vol. iii, p. 235.)

The two remaining points are those on which the Arbitrators have consented to receive arguments, embracing other important questions. both of international law, and as to the proper interpretation of the rules of the Treaty of Washington, in addition to the question of the diligence (if any) due from Great Britain to the United States, in those respects.

CHAPTER II.-ON THE SPECIAL QUESTION OF THE EFFECT OF THE COMMISSIONS OF THE CONFEDERATE SHIPS OF WAR, ON THEIR ENTRANCE INTO BRITISH PORTS.

It is contended by the United States that these ships (or at least such of them as had been illegally equipped in British territory struction of the 1st ought to have been seized and detained, when they came into British ports, by the British authorities. This argu

1. The true conrule of the Treaty.

ment depends upon a forced construction of the concluding words of the first Rule, in Article VI of the Treaty of Washington; which calls upon the neutral State to "use due diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use." Does this Rule authorize the Arbitrators to treat it as a duty undertaken by Great Britain, to seize Confederate cruisers commissioned as public ships of war and entering British ports in that character, without notice that they would not be received on the same terms as other public ships of war of a belligerent State, if they were believed to have been "specially adapted, in whole or in part, within British jurisdiction, to warlike use?" The negative answer to this inquiry results immediately from the natural meaning of the words of the Rule itself, which plainly refer to a departure from the neutral territory of a vessel which has not at the time of such departure ceased to be subject, according to the law of nations, to the neutral jurisdiction; and the cruising and carrying on war by which still rests in intention and purpose only, and has not become an accomplished fact, under the public authority of any belligerent Power.

war in neut ral ports.

If a public ship of war of a belligerent Power should enter neutral waters in contravention of any positive regulation or pro- 2. The privileges hibition of the neutral Sovereign, of which due notice had of public ships of been given, she might, according to the law of nations, be treated as guilty of a hostile act, a violation of neutral territory; and hostile acts may of course be justifiably repelled by force. But the original equipment and dispatch from neutral territory of the same ship, when unarmed, whether lawful or unlawful, was no hostile act; and a foreign Power, which afterward receives such a ship into the public establishment of its navy, and gives her a new character by a public commission, cannot be called upon to litigate with the neutral Sovereign any question of the municipal law of the neutral State, to whose jurisdiction it is in no matter subject. The neutral State may, if it think fit, give notice (though no authority can be produced for the proposition that it is under any international obligation to do so) that it will not allow the entrance of a particular description of vessels, whether commissioned or not, into its waters; if it gives no such notice it has no right, by the law of nations, to assume or exercise any jurisdiction whatever over any ship of war coming into its waters under the flag and public commission of a recognized belligerent. Such a ship, committing no breach of neutrality while within neutral waters, is entitled to extra-territorial privileges; no court of justice of the neutral country can assume jurisdiction over her; the flag and commission of the belligerent power are conclusive evidence of his title and right; no inquiry can be made, under such circumstances, into anything connected with her antecedent ownership, character, or history. Such was the decision (in accordance with well-established principles of international law) of the highest judicial authority in the United States in 1811, in the case of the Exchange, a ship claimed by American citizens, in American waters, as their own property; but which, as she had come in as a public ship of war of France, under the commission of the first Emperor Napoleon, was held to be entitled to recognition as such in the waters of the United States, to the entire exclusion of every proceeding

1 The proceedings of the British Government, in the case of the Tuscaloosa, turned entirely upon the question whether she was, or was not, a prize, whose entrance into a British port was prohibited by the rules publicly issued by the Queen at the beginning of the war.

and inquiry whatever, which might tend in any way to deprive her of the benefit of that privileged character. The principles laid down in the following extracts from that judgment are in accordance with those which will be found in every authoritative work on international law which treats of the subject; (see the passages from Ortolan, Hautefeuille, Pando, &c., cited at length in the note to the British Counter Case, pp. 14, 15; also Azuni, vol. ii, (Paris edition, 1805,) pp. 314, 315. &c.; and Bluntschli's "Droit international," Article 321, p. 184 of the French translation by Lardi :)

3. The case of ** Exchange.

The world being composed of distinct sovereignties, possessing equal rights and equal independence, whose mutual benefit is promoted by intercourse with each other, and by an interchange of those good offices which humanity dictates and its wants require, all Sovereigns have consented to a relaxation in practice, in cases under certain peculiar circumstances, of that absolute and complete jurisdiction within their respective territories which sovereignty confers. This consent may, in some instances, be tested by common usage and by common opinion growing out of that usage.

A nation would justly be considered as violating its faith, although that faith might not be expressly plighted, which should suddenly, and without previous notice, exercise its territorial powers in a manner not consonant to the usages and received obligations of the civilized world.

This full and absolute territorial jurisdiction being alike the attribute of every Sovereign, and being incapable of conferring extra-territorial power, would not seem to contemplate foreign Sovereigns nor their sovereign rights as its objects. One Sovereign being in no respect amenable to another, and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him.

This perfect equality and absolute independence of Sovereigns, and this common interest impelling them to mutual intercourse and an interchange of good offices with each other, have given rise to a class of cases in which every Sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction which has been stated to be the attribute of every nation.

If, for reasons of state, the ports of a nation generally, or any particular ports, be closed against vessels of war generally, or the vessels of any particular nation, notice is usually given of such determination. If there be no prohibition, the ports of a friendly nation are considered as open to the public ships of all powers with whom it is at peace, and they are supposed to enter such ports, and to remain in them, while allowed to remain, under the protection of the Government of the place.

When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant-vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infrac tion and the Government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. Nor can the foreign Sovereign have any motive for wishing such exemption. His subjects thus passing into foreign countries are not employed by him, nor are they engaged in national pursuits. Consequently, there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter can never be construed to grant such exemption.

But in all respects different is the situation of a public armed ship. She constitutes a part of the military force of her nation; acts under the immediate and direct command of the Sovereign; is employed by him in national objects. He has many and powerful motives for preventing those objects from being defeated by the interference of a foreign State. Such interference cannot take place without affecting his power and his dignity. The implied license, therefore, under which such vessel enters a friendly port may reasonably be construed, and it seems to the court ought to be construed, as containing an exemption from the jurisdiction of the Sovereign within whose ter ritory she claims the rights of hospitality.

Upon these principles, by the unanimous consent of nations, a foreigner is amenable to the laws of the place; but certainly, in practice, nations have not yet asserted their jurisdiction over the public armed ships of a foreign Sovereign entering a port open föt their reception. The words of Bluntschili are:

4. Other authorities.

Exceptionellement on accorde l'exterritorialité aux navires de