belligerent from being dismantled or sold in British ports; although, as the British Case maintained, it was not the duty of a neutral government to prohibit the sale in its territory of a ship owned by a belligerent to a neutral purchaser. Under certain circumstances, as in the case of a ship of war driven by superior force to take refuge in a neutral port, such a sale might be liable to be declared void by a prize court of the other belligerent. But this was a jurisdiction, said the British Case, exercised by prize courts alone, and the sale, until so set aside, was valid everywhere, and operated to transfer the property to the neutral purchaser.

The British Case also referred to the Nashville, which arrived at Bermuda on October 30, 1862, having sailed from Charleston on the 26th. A supply of coal from Her Majesty's dockyard was refused her. She secured a supply from a private yard, and on November 21 arrived at Southampton, having destroyed on her way an American packet ship. On November 22 she went into dock for repairs, and directions were sent from the foreign office that she "should not be allowed to equip herself more completely as a vessel of war, or to take in guns or munitions of war." This measure was the subject of an expression of satisfaction on the part of Mr. Adams.

From the beginning to the end of the war, Confederate Com- said the British Case, Her Majesty's governplaints. ment scrupulously observed in respect to vessels entering British ports or waters under the flag of either belligerent the duties of a neutral power. The United States cruisers entered the ports and waters of Her Majesty's dominions for coaling and other purposes more frequently than the vessels of the Confederate States. The impartial neutrality maintained in these respects by Her Majesty's government was nevertheless a frequent subject of complaint by the Government of the United States, which continued to insist that Confederate vessels ought to have been treated as piratical, or at least excluded altogether; while the Confederate States complained that the regulations enforced were unequal in operation, and unduly disadvantageous to a belligerent whose ports and coasts were under blockade.

International Rights

and Duties.

The third part of the British Case related to international rights and duties," and to "the powers which were possessed by Her Britannic Majesty's government of preventing unlawful equipments, and

the manner and circumstances in and under which these powers were exercised during the war." Under this head the British Case laid down the following general propositions:

"1. A neutral government is bound to exercise due diligence, to the intent that no place within its territory be made use of by either belligerent as a base or point of departure for a military or naval expedition, or for hostilities by land or sea.

2. A neutral government is not, by force of the abovementioned obligation or otherwise, bound to prevent or restrain the sale within its territory, to a belligerent, of articles contraband of war, or the manufacture within its territory of such articles to the order of a belligerent, or the delivery thereof within its territory to a belligerent purchaser, or the exportation of such articles from its territory for sale to, or for the use of, a belligerent.

"3. Nor is a neutral government bound, by force of the abovementioned obligation or otherwise, to prohibit or prevent vessels of war in the service of a belligerent from entering or remaining in its ports or waters, or from purchasing provisions, coal, or other supplies, or undergoing repairs therein; provided that the same facilities be accorded to both belligerents indifferently; and provided also that such vessels be not permitted to augment their military force, or increase or renew their supplies of arms or munitions of war, or of men, within the neutral territory.

"4. The unlawful equipment, or augmentation of force, of a belligerent vessel within neutral waters being an offense against the neutral power, it is the right of the neutral power to release prizes taken by means or by the aid of such equipment or augmentation of force, if found within its jurisdiction.

"5. It has been the practice of maritime powers, when at war, to treat as contraband of war vessels specially adapted for warlike use and found at sea under a neutral flag in course of transportation to a place possessed or occupied by a belligerent. Such vessels have been held liable to capture and condemnation as contraband on proof in each case that the destination of the ship was an enemy's port, and provided there were reasonable grounds for believing that she was intended to be sold or delivered to or for the use of the enemy.

"6. Public ships of war in the service of a belligerent entering the ports or waters of a neutral are, by the practice of nations, exempt from the jurisdiction of a neutral power. To withdraw or refuse to recognize this exemption without previous notice, or without such notice to exert, or attempt to exert, jurisdiction over any such vessel, would be a violation of a common understanding, which all nations are bound by good faith to respect.

"7. A vessel becomes a public ship of war by being armed and commissioned-that is to say, formally invested by order or under the authority of a government with the character of a

ship employed in its naval service and forming part of its marine for purposes of war. There are no general rules which prescribe how, where, or in what form the commissioning must be effected so as to impress on the vessel the character of a public ship of war. What is essential is that the appointment of a designated officer to the charge and command of a ship likewise designated be made by the government, or the proper department of it, or under authority delegated by the government or department, and that the charge and command of the ship be taken by the officer so appointed. Customarily a ship is held to be commissioned when a commissioned officer appointed to her has gone on board of her and hoisted the colors appropriated to the military marine. A neutral power may indeed refuse to admit into its own ports or waters as a public ship of war any belligerent vessel not commissioned in a specified form or manner, as it may impose on such admission any other conditions at its pleasure, provided the refusal be applied to both belligerents indifferently; but this should not be done without reasonable notice.

"8. The act of commissioning, by which a ship is invested with the character of a public ship of war, is, for that purpose, valid and conclusive, notwithstanding that the ship may have been at the time registered in a foreign country as a ship of that country, or may have been liable to process at the suit of a private claimant, or to arrest or forfeiture under the law of a foreign state. The commissioning power, by commissioning her, incorporates her into its naval force; and by the same act which withdraws her from the operation of ordinary legal proc ess assumes the responsibility for all existing claims which could otherwise have been enforced against her.

"9. Due diligence on the part of a sovereign government signifies that measure of care which the government is under an international obligation to use for a given purpose. This measure, where it has not been defined by international usage or agreement, is to 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.

"10. The measure of care which a government is bound to use in order to prevent within its jurisdiction certain classes of acts, from which harm might accrue to foreign states or their citizens, must always (unless specifically determined by usage or agreement) be dependent, more or less, on the surrounding circumstances, and can not be defined with precision in the form of a general rule. It would commonly, however, be unreasonable and impracticable to require that it should exceed that which the governments of civilized states are accustomed to employ in matters concerning their own security or that of their own citizens. That even this measure of obligation has not been recognized in practice might be clearly shown by reference to the laws in force in the principal countries of Europe and America. It would be enough, indeed, to refer to the history of some of these countries during recent

periods for proof that great and enlightened states have not deemed themselves bound to exert the same vigilance and employ the same means of repression, when enterprises prepared with their own territories endangered the safety of neighboring states, as they would probably have exerted and employed had their own security been similarly imperiled.

"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.

"(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 prevention 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 can not 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.

"In connection with the foregoing propositions are to be taken the three rules stated in Article VI. of the treaty, and accepted by Her Britannic Majesty's government in the manner expressed in that article."

Character of American Complaints.

The case of a vessel dispatched from a neutral port to or for the use of a belligerent, after having been prepared within the neutral territory for warlike use, might, said the British Case, be

regarded from two different points of view. The ship itself might be regarded merely as an implement of war and an article of contraband, or the preparation and dispatch of the ship might be viewed as the commencement of a hostile expedition. The difficulty in drawing the line between these two classes of transactions was great in theory and still greater in practice; and it was "enhanced to the utmost during the civil war by the ingenuity and audacity of American citizens who were engaged in carrying on hostilities against the Government of the United States, and who were desirous of availing themselves for this purpose of the shipbuilding and manufacturing resources of Great Britain." The difficulties encountered by Her Majesty's government in this regard finally led to an enlargement of the municipal law on the subject beyond what had hitherto been deemed necessary in any other country." The acts of which the United States complained were, said the British Case, of a class which had not commonly been made the object of prohibitory legislation and which had not, perhaps, when the war began, been directly prohibited except in the United States and Great Britain. Laws were

not made till the necessity for them had arisen. The necessity for neutrality laws early arose in the United States, first in the war that began in 1793 between the French Republic on the one hand and Great Britain and the Netherlands on the other; and again in the war which broke out in 1810 between Spain (afterward assisted by Portugal) and the Spanish colonies in America. The laws passed to meet the exigencies which then arose had been in force for many years, and had always been held by the legislative authority in the United States to be adequate for their purpose; yet vessels had "from time to time been fitted out and armed within the United States to cruise and commit hostilities against nations with which the United States were at peace," and "severe losses and injuries” had been inflicted on those nations by the depredations of such vessels." Moreover, it had "been constantly held and maintained by the United States" that the powers possessed by the government to prevent the fitting out of vessels within the national territory were such only as could be shown to be vested in the government by the Constitution and laws for the time being in force, and that, if these powers had been bona fide exercised, the United States were not responsible for losses inflicted by vessels fitted and armed within their territories.