doubtedly, a hostile expedition within the meaning of the law of nations. But a vessel fitted to receive her armament in the neutral port, and sent out of that port by the belligerent only in that condition, he held is not an enterprise in violation of the law of nations, and is not a hostile expedition in the sense. of that law. By consequence, Baron Bramwell argued, nothing in such an enterprise of a belligerent from a neutral port calls for the exercise of authority on the part of the neutral, either by law or by executive interference, and, until the armament gets on board, there is nothing to bring the case within the province of international proscription and of international responsibility. It was then, he argues, only a question for Great Britain whether the provisions of the Foreign Enlistment Act can touch such a vessel, and the only question for the British Government was as towards the United States, have they done their duty to themselves in the enforcement of the municipal law, which involves a question of international responsibility to the United States? We insist, therefore, that so far from nothing practical turning upon this distinction, all the doubts and difficulties turn upon it, especially in connection with the ancillary proposition that these vessels could be provided, by means of their tenders, with armaments, without any accountability for the complete hostile expedition.1

It is said that we can draw no argument as to the deficiency of their old Act, from the improved provisions of the new Act of 1870. Why not? When we say that your Act of 1819 was not adequate to the sitnation, and that, if you had no prerogative to supply its defects, you should have supplied them by Act of Parliament-that you should have furnished by legislation the means for the performance of a duty which required you to prevent the commission of the acts which we complain of it is certainly competent for us to resort to the fact that, when our war was over, from thenceforth, movements were made toward the amendment of your law, and that, when the late war on the continent of Europe opened, your new Act was immediately passed containing all the present provisions of practical executive interception of such illegal enterprises-it is, I say, competent for us to refer to all this as a strong as well as fair argument, to show that, even in the opinion of the British Parliament, the old Act was not adequate to the performance of the international duties of Great Britain to the United States.

The failure of Great

investigation or pro

Sections 27 to 30 of the special argument are occupied with a discussion of that part of our Argument which alleges, as want of due diligence, the entire failure of Great Britain to have an Britain to originate active, effective, and spontaneous investigation, scrutiny, report, and interceptive prevention of enterprises of this kind. Well, the comments upon this are of two kinds: first, concerning the question, under a somewhat prolonged discussion of facts, whether the Govern ment did or did not do this, that, or the other thing; and, then, con

Mr. Théodore Ortolan, in a late edition of his "Diplomatie de la mer," tome ii, says: "Nous nous rattacherons, pour résoudre en droit des gens les difficultés que présente cette nouvelle situation, à un principe universellement établi, qui se formule en ce peu de mots: 'Inviolabilité du territoire neutre.' Cette inviolabilité est un droit pour l'état neutre, dont le territoire ne doit pas être atteint par les faits de guerre, mais elle impose, aussi, à ce même état neutre, une étroite obligation, celle de ne pas permettre, celle d'empêcher, activement au besoin, l'emploi de ce territoire par l'une des parties, on au profit de l'une des parties belligérantes, dans un but hostile à l'autre partie."Case of the U. S., p. 182.

2 It does not seem profitable to go into a minute examination of the proofs before the Tribunal to establish the propositions of our Argument specially controverted in sections 29 and 30 of the present argument of the eminent Counsel. Although the let-ter of Earl Russell, quoted by the learned Counsel, does, incidentally, refer to certain

cerning the more general question, as to whether the Rules of this Treaty call upon this Tribunal to inquire into any such deficiency of diligence which was not applicable to the case of a vessel respecting which the British Government "had reasonable ground to believe" that a violation of the law was meditated.

The "due dili gence

Our answer to this latter question is, that the Rules together, in their true construction, require the application of due diligence required by (particularly under the special emphasis of the third Rule) "to prevent" the occurrence of any of the infractions of the law of nations proscribed by the Rules.

the Rules is a diligence to prevent a hostile act.

There are two propositions in these Rules. Certain things are assigned as violations of the law of nations, and as involving a duty on the part of a neutral Government to prevent them; and besides in and toward preventing them, it is its duty to use due diligence. In regard to every class of alleged infractions of these Rules, there comes to be an inquiry, first, whether, in the circumstances and facts which are as signed, the alleged infractions are a violation of any of the duties under the law of nations as prescribed by those Rules. If not, they are dismissed from your consideration. But if they are so found, then these Rules, by their own vigor, become applicable to the situation, and then comes the inquiry whether Great Britain did, in fact, use due diligence to prevent the proscribed infractions. It is under the sections now under review that the learned Counsel suggests whether it is supposed that this general requirement of the use of due diligence by Great Britain is intended to cover the cases of vessels like the Shenandoah and the Georgia, (which it is alleged the British Government had no reasonable ground to believe were meditating or preparing an evasion of the laws or a violation of the duties of Great Britain,) or the cases of these tenders that supplied the Georgia and the Shenandoah and the Florida and the Alabama with their armaments and munitions of war-it is under these sections that this discussion arises. The answer on our part to this suggestion is, that the general means of diligence to keep the Government informed of facts and enable it to judge whether there was 66 reasonable ground to believe" in any given case, and thus enable it to be prepared to intercept the illegal enterprise, are required in cases that the Rules proscribe as infractions of neutrality.

I will agree that under the first clause of the first Rule the duty is applied to a vessel concerning which the Government "shall have reasonable ground to believe," &c. Under the second clause of the first Rule, this phrase is omitted, and the question of "reasonable ground to believe" forms only an element in the more general question of "due diligence." Under the second Rule also, the whole subject of the use of the neutral ports and waters as a base of naval operations is open; and, if there has been a defect of diligence in providing the officers of Great Britain with the means of knowledge and the means of action, to prevent such use of its ports and waters as a base of operations, why, then, Great Britain is at fault in not having used due diligence to prevent such use of its ports and waters. That is our argument; and it seems to us it is a sound argument. It is very strange if it is not, and if the duty of a government to use due diligence to prevent its ports instructions having been given to subordinate officials, yet we look in vain, through the proofs of the British Government, for the text or date or circulation of these instructions. As for the rest, we find nothing in the instances cited, in which specific information happened to be given in regard to this or that vessel or enterprise, which contravenes our general propositions of fact, in this behalf, or the influence of want of due diligence on the part of the British Government, which we have drawn from those facts.

and waters from being used as a base of naval operations does not include the use of due diligence to ascertain whether they were being, or were to be, so used.

It was a fault not to use due diligence to prevent the ports and waters of Great Britain from being used as a base of naval operations, or for the augmentation of force, or the recruitment of men. And to admit that it was a fault, in any case, not to act where the Government had cause to believe that there was to be a violation of law, and yet to claim that it was no fault for the Government to be guilty of negligence in not procuring intelligence and information which might give a reasonable ground to believe, seems to me absurd.

This, indeed, would be to stamp the lesser negligence, of not applying due diligence in a particular case when there was "reasonable ground to believe," as a fault, entailing responsibility upon a neutral Govern. ment, and to excuse the same Government for the systematic want of due diligence which, through indifference to duty and voluntary ignorance, did not allow itself to be placed in a position to judge whether the ground of belief was reasonable, or whether there was any ground at all for its action. The lesser fault infers that the same or greater responsibility is imputable to the greater fault.

of the two nations,

The sections of the special Argument of the learned Counsel which are occupied with a comparison between the practical efficiency of Comparison be. the American and of the English Acts, and in which the tween the statutes propositions of our Argument, in this regard, are questioned and commented upon, will be replied to by my learned associate, Mr. Cushing, in an argument which he will present to the Tribunal. It is enough for me to repeat here the observation of our Argument, that the true measure of the vigor of an act is its judicial interpretation and its practical execution. We do not intend to allow ourselves to be involved in discussions as to the propriety of this or that construction of the English act which reduced its power. The question with us is, what were the practical interpretation and exercise of the powers of that act, as compared with the practical interpretation and exercise of the powers of the Neutrality Act of the United States?

The propositions of our Argument seem to us untouched by any of the criticisms which the learned Counsel has applied to them. We, rightly or wrongly, have interpreted our act, from its first enactment to the present time, as giving authority to the Executive of the United States to intercept, by direct exercise of power, all these prohibited enterprises at any stage at which he can lay his hands upon them, for the purpose of their prevention. The correspondence produced in our proofs, showing the action of the Executive Government on all the occasions in which this statute has been required to be enforced, will indicate that, whether it has been successful or not in the execution of the duty, the Government has recognized the duty, the Executive has undertaken it, and all the subordinates have had their attention called to it, in the sense and to the end of prevention. All subordinates have, as well, always been stimulated to the duty of keeping the Executive, from time to time, fully and promptly supplied with information to secure the efficient execution of the law. And it is not improper, perhaps, for me here to observe, that my learned associate, Mr. Cushing, and myself, having been called upon to execute this statute in the office of Attorney-General of the United States, we can bear testimony to its vigor and its efficiency, in the every day action of the Government. It is submitted to and not questioned, and produces its effect. Whether the Government of the United States, possessing that power under and by

authority of the statute, has always been successful or not, or has always used due diligence in its exercise, and whether it is accountable to this or that nation for a faulty execution of its duties of neutrality, are questions which this Tribunal cannot dispose of, and they are only remotely collateral to any discussions properly before the Arbitrators, Sir ALEXANDER COCKBURN. "If you are arguing now upon that point, Mr. Evarts, explain this to me. By the last English Act of 1870, the Secretary of State has power, under certain circumstances, to order a vessel to be seized, and then it is provided that the owner of such vessel may make claim, &c., which the court shall as soon as possible consider. I want to ask you, what, under your Act of 1818, which gives power to the President to seize, under similar circumstances. would be the course of proceedings in such a case? How would the owner be able to know whether his vessel was one liable to seizure and confiscation? How would he get his vessel back again according to your form of procedure?

Mr. EVARTS. I take it for granted that the detention which the President might authorize, or cause to be made, would not be an indefinite detention. By the terms of the Act, however, that exercise of the executive power is not, necessarily, terminated by a judicial appeal of any kind.

Sir ALEXANDER COCKBURN. "Do you mean to say that the ship shall remain in the hands of the Government?"

Mr. EVARTS. If the party chooses so to leave it without satisfactory explanation. The President interposes in the discharge of a public duty, to prevent the commission of an act in violation of neutrality. which he believes to be illegal. On representation to him by the ag grieved party, he will release the vessel, if he finds reason. If he does not so release, then the vessel remains subject to the continued exercise of Executive control, under the same motives that first induced it. Sir ALEXANDER COCKBURN. "Would not the President, in the ordinary practice of things, direct that the matter should be submitted to judicial determination?"

Mr. EVARTS. This Executive interception carries no confiscation. It merely detains the vessel and the owner can apply for its release, giving an explanation of the matter. But the Executive may say, "I am not satisfied with your explanation; if you have nothing else to say, I will keep your vessel;" or he may send it to the courts to enforce its confiscation.

Sir ALEXANDER COCKBURN. "Which does he practically do?"

Mr. EVARTS. He practically, when not satisfied to release it, usually sends it to the court, because the situation admits of that disposition of it. Under the Act of the United States, there is the same actual interception by the Executive which your Act of 1870

Sir. ALEXANDER COCKBURN. "Under our Act the Executive has no discretion; it must send it to the courts."

Mr. EVARTS. Under our Act, we trust the Executive for a proper exercise of the official authority intrusted to him.

In the American Case, some instances of the exercise of this power on a very considerable scale will be found. (Page 126 of the French translation.) The documents explaining these transactions are col lected at length in the Appendix to the American Counter-Case.

Sections 38 to 41 of the special argument call in question our po The burden of sition as to onus probandi. It is said that we improperly undertake to shift, generally, the burden of proof and require Great Britain to discharge itself from liability by affirmative

proof in all cases where we charge that the act done is within the obligation of the Three Rules. This criticism is enforced by reference to a case arising in the public action of the United States under the Treaty of 1794 with Great Britain.

I will spend but few words here. The propositions of our Argument are easily understood upon that point. They come to this: that, whenever the United States, by its proofs, have brought the case in hand to this stage, that the acts which are complained of, the action and the result which have arisen from it, are violations of the requirements of the law of nations as laid down in the Three Rules, and this action has taken place within the jurisdiction of Great Britain, (so that the principal fact of accountability within the nation is established,) then, on the ordinary principle that the affirmative is to be taken up by that party which needs its exercise, the proof of "due diligence" is to be supplied by Great Britain. How is a foreigner, outside of the Government, uninformed of its conduct, having no access to its deliberations or the movements of the Government, to supply the proof of the want of due diligence? We repose, then, upon the ordinary principles of forensic and judicial reasoning. When the act complained of is at the fault of the nation, having been done within its jurisdiction, and is a violation of the law of nations for which there is an accountability provided by these Three Rules, the point of determination whether due diligence has been exercised by the authorities of the country to prevent it, or it has happened in spite of the exercise of due diligence the burden of the proof of "due diligence" is upon the party charged with its exercise.

Let us look at the case of the Elizabeth, which is quoted in section 41. It is a long quotation and I will read, therefore, only the concluding part. It will be found on page 50 of the French translation of the special argument. The question was as to the burden of proof under the obligation that had been assumed by the United States:

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.

A careful perusal of this passage is sufficient to show that the facts here insisted upon as necessary to be proved by the claimant are precisely equivalent to the facts which the United States are called upon to prove in this case. The facts, as I have before stated, bring the circumstances of the claim to the point where it appears that the responsibility for the injury rests upon Great Britain unless due diligence was used by the Government to prevent the mischievous conduct of the subjects or residents of that kingdom which has produced the injuries complained of. In the absence of this due diligence on the part of that Government, the apparent responsibility rests undisturbed by the exculpation which the presence of due diligence will furnish. The party needing the benefit of this proof, upon every principle of sound reason, must furnish it. This is all we have insisted upon in the matter of the burden of proof. In conclusion of the first chapter of this special argument, the em inent Counsel, at section 43, takes up the "Terceira affair," and insists that if Great Britain, in a particular situation for the exercise of duties of neutrality, took extraordinary measures, it

The Terceira affair.