therefore, with perfect propriety, be described as having that object in view. But their main, though not always their sole, purpose is to restrain whatever may tend to imperil the relations of the state with foreign powers; they are framed on those considerations of expediency by which all legislation is governed; and, as they may stop short in some respects of the provisions of international law, so they may transcend them in others.

[8]

It has sometimes been argued indeed, though not with success, that the law of nations should be regarded as furnishing an interpretation of the foreign-enlistment act, and confining its scope to acts which can be shown independently to be within the prohibitions of that code. But that the act should, on the contrary, be viewed as extending the prohibitions of the law of nations, was never, to the knowledge of Her Majesty's government, contended by any one, and such an argument would certainly receive no attention from any judicial tribunal.2

The Government of the United States has appealed, in support of this erroneous notion, to certain English authorities; and the manner in which it has referred to them cannot be left unnoticed. The following sentence is given as a quotation from a dispatch signed by Earl Rus

1See the argument of the counsel for the defendants in the Alexandra case, (appendix to the case of the United States, vol. v, p. 183, et seq.)

A construction contrary to that which the United States contend for against Great Britain has been placed by the Government of the United States on its own law. In 1841 the then Attorney-General was called upon to advise whether the building in the United States of vessels of war for the government of Mexico, to be employed against Texas, was prohibited by the act of 1818. Mr. Legaré advised (whether rightly or wrongly is not material) that it was so, on the following grounds: "The reasoning on this subject is shortly this: the policy of this country 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 impartiality, 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 of the belligerents, 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 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 war, 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 her borders: she has forbidden all furnishing of them under severe penalties. The memorable act of 1794 consecrated this policy at an early period of our Federal history, and that act was only repealed in 1818 to give place to an equally decided expression of the legislative will to the same effect. Whatever may be thought of the spirit and policy of the law, its scope and objects are too clear to be misunderstood; and I am of opinion that the case stated by Mr. Curtis falls fully within the purview of the third section."

Mr. Legaré afterwards wrote a further opinion to the aame effect, holding that "all trading with a belligerent in ships of war, ready equipped for service, was contrary to the law of the United States." "The accompanying prohibition in the statute of all enlistments in the United States furnishes a strong ground to support this opinion. Such enlistments (if voluntary) are no more against the law of nations than equipping and furnishing ships; yet it will not be pretended that any attempt to enlist an American citizen within our borders, however covert and cautious, and wherever the service is to be rendered, or the first step towards it taken, is not utterly prohibited by the act. However popular opinion may have recently changed on so important a subject, this act, like that of 1794, was intended to secure, beyond all risk of violation, the neutral and pacific policy which they consecrate as our fundamental law. The framers of both acts knew perfectly well that they were denying to our citizens rights which the law of nations allowed them to exercise in good faith for commercial purposes. They knew the price they were paying for peace, but they were willing to pay it. This act is a proof of it."-(Opinions of Attorneys-General of the United States, vol. iii, pp. 738, 741; Appendix to British Case, vol. v, pp. 360, 363.)

H. Ex. 324- -2

*

sell: "That the foreign-enlistment act is intended in aid of the duties of a neutral nation."1 What were the words of Earl Russell? They were these: "That the foreign-enlistment act, which was intended in aid of the duties and rights of a neutral nation, can only be applied," &c. The meaning of the sentence is altered by leaving out two of the most important words. Again, the report of a commission appointed in 1867 to consider the laws of Great Britain "available for the enforcement of neutrality," is thus referred to:

The tribunal of arbitration will search the whole of that report, and of its various appendixes, in vain to find any indication that that distinguished body imagined, or thought, or believed that the measures which they recommended were not “in full conformity with international obligations." On the contrary, the commissioners say that, so far as they can see, the adoption of the recommendations will bring the municipal law into full conformity with the international obligations. Viewing their acts in the light of their powers, and of their instructions, the United States feel themselves justified in asking the tribunal to assume that that eminent body regarded the acts which they proposed to prevent by legislation, as forbidden by international law.*

What is the passage which the Government of the United States has referred to, but has refrained from extracting? It is this:

In making the foregoing recommendations we have not felt ourselves bound to consider whether we were exceeding what could actually be required by international law, but we are of opinion that, if those recommendations should be adopted, the municipal law of this realin, available for the enforcement of neutrality, will derive increased efficiency, and will, so far as we can see, have been brought into conformity with your Majesty's international obligations.3

[9] *Thus by leaving out the words in which the commissioners observe that their recommendations may exceed the requirements of international law, and by using in one sense words which (as the context proves) they employed in another, they are represented as saying the very thing which they expressly guarded themselves from being supposed to say, namely, that all the acts which they proposed to prohibit were, in their judgment, already forbidden by international

law.*

The Government of the United States further assumes that the same false principle is to be applied not only to laws, but to the proclamations, orders, and regulations issued during a war by neutral nations. These also are to be supposed to prohibit nothing which the government that issues them does not believe to be interdicted by international law.

Her Majesty's government had supposed that the nature of these acts and orders was a thing perfectly well understood by the United States, as it certainly is by maritime nations in general. They are universally understood to be acts done in the free exercise of that right which every sovereign state' possesses to regulate the access of belligerent vessels to its ports. They convey no admission whatever that

1 Case of the United States, p. 108.

2 Ibid., p. 116.

See Report of the Commission, p. 5; Appendix to British Case, vol. iii; Appendix to Case of the United States, vol. iv, p. 82.

4 At page 117 of the case, the judge of the high court of admiralty (Sir R. J. Phillimore) is cited as having stated (very justly) that the act of 9th Angust, 1870, has the effect of enabling the British government to fulfill more easily than heretofore that particular class of international obligations which may arise out of the conduct of Her Majesty's subjects toward belligerent foreign states with which Her Majesty is at peace. No doubt it has. This quotation is as irrelevant as those introduced at pp. 118-122, in order to prove that the law of nations has been regarded as forming part of the com mon law of England, a proposition sometimes stated too largely, but which, correctly understood, has been denied by no one, and in no way assists the argument of the United States.

what they enjoin is enjoined, or that what they prohibit is prohibited, by the law of nations. In some cases this may be so; commonly it is not so. But the acts themselves, whether they happen to coincide with rules of international law or not, are voluntary and discretionary. They are done in exercise of a right, not in performance of an obligation.

The foregoing remarks have been drawn from the British government by the attempt made in the case of the United States to introduce into this controversy an assumption which is clearly erroneous; the assumption, namely, that whatever is or was prohibited by British law or by the orders or proclamations of the British government ought, as against Great Britain, to be held to be prohibited by the law of nations.

Thus it is asserted' that all the acts prohibited by the 2d, 5th, 6th, 7th, and 8th sections of the foreign-enlistment act must be held, as against Great Britain, to be acts which a neutral government "ought," or "was bound," not to permit to be done within its jurisdiction, and were violations of the international duties "of a neutral;" that the foreign-enlistment act defines and recognizes the "principles and duties" "obligatory on the nation in its relations with other powers;" that the act of 1870 was "intended, at least as against the British government, as a re-enactment of the law of nations;" that the restrictions placed by the British · government on the stay of belligerent vessels in its ports are to be regarded as commanded by international law, instead of being, what they really were, regulations issued in the free exercise of the sovereign rights of a neutral power; lastly, that the supposed rules or principles of international law thus extracted from British laws and ordinances may and ought to be applied by the tribunal against Great Britain, without. being recognized by it as applicable under like circumstances against other neutral nations in general.

Her Britannic Majesty's government declares, on the contrary, in the most explicit manner, that the law to which it has submitted its conduct, and by which it has consented to be tried, is the international law recognized in common by all civilized states, coupled with the three rules embodied in the treaty; that this law is to be gathered, not from British statutes or ordinances, but from the general consent of nations, evidenced by their practice; and that the laws and ordinances of Great Britain herself can be appealed to only for the single purpose of proving that her government was armed with sufficient power to discharge its international duties, and not for the purpose of extending, any more than of restricting, the range of those duties.

ARGUMENT OF THE UNITED STATES.-ALLEGED DUTY OF A GOVERNMENT TO ENFORCE ITS OWN LAWS AND REGULATIONS.

At page 211 of its case, the Government of the United States lays down, as against Great Britain, the general proposition Alleged duty of a [10] that à neutral is bound to enforce its laws and its *66

government to

en

ex- force its own laws

ecutive proclamation." It appears to contend for the and regulations. same proposition at page 108. But, at pages 122, 123, it expressly guards itself against being supposed to admit that Great Britain, against whom this supposed principle is pressed, would herself, if the case were reversed, be entitled to the advantage of it against the United States or against other nations. The arbitrators, therefore, are solicited to assume that Great Britain was bound to enforce her laws and ordi

1 Case of United States, pp. 109, 110, 118, 125, 210, 212.

nances so far as they were in favor of the United States, with the understanding that the decision is not to imply that any corresponding obligation was, or is, incumbent on the United States or on other powers toward Great Britain.

In defense of this extraordinary suggestion it is pleaded that "in 1793, during General Washington's administration, the representative of Great Britain in the United States pointed out to Mr. Jefferson, who was then Secretary of State, acts which were deemed by His Britannic Majesty's government to be breaches of neutrality' done in contravention of the President's proclamation' of neutrality, and he invited the United States to take steps for the repression of such acts and for the restoration of captured prizes," and that "it appears that the United States complied with these requests." It will be seen that the representations then made on the part of this country to the United States were founded on the character of the acts themselves, which were deemed by the British government to be breaches of neutrality, and not upon the fact that they were prohibited by the President's proclamation. Further comment on this supposed precedent, which will hereafter be examined for a different purpose, is here unnecessary.

The international duties which Great Britain acknowledges toward other states she will at all times hold herself entitled to enforce against them. And she would not have expected that, under any circumstances, the United States could have taken a different view.

Disregarding the attempt to confine the operation of it to a single power, Her Majesty's government cannot admit the proposition for which the Government of the United States contends. Setting aside those cases in which the law or ordinance serves only as a means of enabling the government to discharge an antecedent international obligation, and cases in which the omission to enforce it would be an instance of willful partiality or a violation of an express or tacit engagement, it cannot be admitted that a state is bound by any international duty toward other states to execute or enforce its own ordinances or laws within its own territory. A state is bound to enforce the laws which afford protection to life and property, for the benefit of commorant foreigners as well as for that of its own citizens; because it is a principle universally recognized that foreign residents obeying the laws are entitled to the protection which they bestow. Here there is an antecedent duty. But a state is not bound to enforce revenue laws of its own from which an incidental advantage may be reaped by some foreign nation or its citizens; for here there is no antecedent duty. Still less can it be allowed, in the absence of any antecedent obligation, that in executing its own laws a state is bound, in relation to other states, to the exercise of active vigilance and exact diligence, or that it owes them compensation for any loss they may conceive themselves to have sustained through a default in this respect. The comity of nations, indeed, permits representations and remonstrances to be made by one government to another in cases where no strict right exists. Nor is Her Majesty's government disposed to deny that cases may occur in which, through a reasonable confidence that the laws and ordinances of a particular state would be executed according to their tenor, losses may have been incurred by another state or its citizens or subjects for which some reparation might fairly and equitably be made. But the claim for compensation in such cases arises from special circumstances, and appeals to international comity and an enlarged sense of equity, not to strict right. Great Britain is willing to go as far as any state has ever gone in this direction. The British government has never denied, on the contrary, it has

at all times freely and readily admitted, that the United States had reasonable ground to expect that the provisions of the foreign-enlistment act would, like the other municipal laws of Great Britain, be fairly executed even where they might exceed the ascertained limits of the law of nations. This consideration, and the wish that every cause of complaint on the part of the United States should be completely and effectually removed, together with the desire to make satisfactory provision for the future, induced Her Majesty's government, in concluding the treaty of Washington, to consent that a retrospective effect should be given to the three rules inserted in the VIth Article of that treaty.

[11]

RECAPITULATION.

Recapitulation.

The conduct of Great Britain in this matter is to be tried by the threerules of the treaty of Washington, coupled with such general principles of international law, not *inconsistent with those rules, as may appear to have been applicable to the case. The general principles of international law are to be collected from those sources to which it is customary to have recourse, and not from the municipal law of Great Britain, nor from administrative acts or regulations of the British government; and these are to be applied, as against Great Britain, in the same manner in which they would be applied, under like circumstances, against the United States or any other sovereign state.

ARGUMENT OF THE UNITED STATES.-EXTENT OF NEUTRAL OBLIGATIONS AS DEDUCED FROM THE THREE RULES, AND FROM GENERAL PRINCIPLES OF INTERNATIONAL LAW.

Extent of neutral

de

obligations, ast rules, and from gen

duced from the three

eral principles of international law.

Her Britannic Majesty's government proceeds to remark upon that part of the case of the United States in which the Government of the United States has explained and endeavored to support its view of the extent of the duties of a neutral power. The British government deems it right here to observe that the questions submitted to the tribunal are not of an abstract or speculative character. The arbitrators have not to consider and determine what rules might with advantage be laid down for the regulation of the conduct of neutral powers during war; what, under such rules, would have been the duty of Great Britain, or whether Great Britain acted in accordance with that standard of duty. They have to deal with facts. Injuries are alleged to have been inflicted by Great Britain and sustained by the United States. Reparation is claimed for those injuries. There can be no injury without some violation of a duty actually existing at the time. The arbitrators, before they decide against Great Britain, must be satisfied that there was such a violation of duty. They must be satisfied, therefore, in the first place, that the alleged duty really existed. They must be satisfied, further, that the violation, if any, was such that reparation may justly be awarded for it in moneythat is, that it was the direct cause of some substantial and appreciable loss to the party claiming reparation.

The general definition of "culpa" or "faute" applies to international injuries, as well as to injuries inflicted and sustained by individuals. "Le débiteur est en faute soit qu'il contrevient à l'obligation de ne pas faire, soit quand il n'exécute pas obligation de faire, soit quand il n'a pas apporté dans l'exécution ou dans l'accomplissement de cette obligation tous les soins auxquels il était tenu."-Le Droit Civil Français, par Zacharia, annoté par G. Massé et Ch. Vergé, sec. 548.