during hostilities." The British Government, in its Counter-case, "willingly assents to this proposition," as though it considered that it amounted to a truism, and goes on, in an almost sarcastic humour, to remark, "no one, indeed, has yet been found to deny that it is the duty of a neutral power to be neutral," etc.

The second American proposition is: "That this (the first-named) obligation is independent of municipal law," upon which, the Counter-case remarks, "The British Government accepts this proposition also."

Is the British Government quite sure of its ground, in acquiescing, as it has done, in these two propositions? May there not possibly arise another case of mischief "growing out of" a too facile acceptance of a position put in language, doubtless very carefully prepared by the adversary? To arrive at a true understanding of the position, it is necessary to take the two propositions together, for the second depends upon the first. Be it remarked then, in the first place, that the word "preserve" is new, as applied to the position voluntarily assumed by a State in remaining neutral pending a war between other states," observe," being the word used for the purpose by all jurists. Martens, for instance, in his 'Précis des Droits des Gens,' says of a Sovereign so circumstanced, "Provided he observes that which an exact neutrality requires of him," etc. ;-and again, "In order to observe a complete neutrality, he must abstain from all participation in expeditions of war." Again, our proclamation of neutrality declares the

"Royal determination to maintain a strict and impartial neutrality;" and "strictly charges and commands all our loving subjects to observe a strict neutrality." So, also, the proclamations of the Emperor of the French, and of the Queen of Spain, in the case of this very war, state that the Sovereign in his discretion has "resolved to maintain a strict neutrality." The difference between declaring the "Royal determination" or "resolve" to "maintain " neutrality, and it being "the duty" of the Sovereign to "preserve" neutrality is very plain ;—the former implying an act of freewill, the latter the conforming to an obligation. Had the American proposition been to the effect, "that it is the duty of a neutral to observe strict and impartial neutrality," no one, indeed, could have disputed the palpable truism. But if that were the intended meaning of the proposition, what can have been the object of appending to it another, that "this obligation is independent of municipal law ?” A State cannot limit its sovereign rights and functions by a municipal law, which is only applicable to its subjects. The British Counter-case admits that it is "the duty of a neutral power to be neutral," but that is not what the American proposition contemplates it involves this, that a neutral power must "preserve" neutrality amongst its subjects, and that this "obligation" is independent of any powers it may have for the purpose under any existing municipal law.*

*It were perhaps needless to point out the difference in import of the two terms, as contained in the dictionaries. To observe is "to keep religiously," "to keep or adhere to in

I

It becomes necessary, when such pretensions as the above are put forward, as consistent with the common law of nations, to resist them upon the broad basis of principle. Although it is palpably true that a neutral State, in order to maintain its character of neutrality, is bound to observe a strict neutrality and impartiality between belligerents, there is nothing in the law of nations to prevent the subjects of such State in the exercise of their industry, to act on behalf of a belligerent, either by giving personal service, or by selling goods of every sort, including arms and munitions of war, and ships of war; the only condition under which he so acts being that, in all he does, he does it at his own risk and peril. The matter is thus explained by Vattel:-"It is for this reason that a belligerent notifies to neutral States its declaration of war, upon which the latter ordinarily warn their subjects to abstain from all dealing in contraband with the States which are at war, declaring to them that if they should be taken, their Sovereign would not protect them." And that contaband of war, so subject to confiscation by a belligerent, includes ships of war, is established by all acknowledged jurists, who might be cited by the score, and some extracts from whose writings fill six closely printed pages in the Appendix to the

practice," "to comply with," "to obey," "to follow." To preserve is "to save," "to defend from injury or destruction," "to protect," "to shield," "to guard." "To observe" applies to one's own conduct, "to preserve" may involve active interference with the conduct of others.

British Counter-case. From these, however, it may suffice our purpose to quote a couple. Judge Story, one of the most eminent jurists of the United States, in the case of the 'Santisima Trinidad,' spoke as follows:-"There is nothing in our law, or in the law of nations, that forbids our citizens from sending armed vessels, as well as munitions of war, to foreign ports for sale. It is a commercial adventure which no nation is bound to prohibit, and which only exposes the persons engaged in it to the penalty of confiscation." In England there is no trace of a contrary doctrine having ever been held. We read in Fortescue's Reports that, in 1721, a complaint having been made by the Government of Sweden that certain ships of war had been built in England, and sold to the Czar of Russia, "the judges were ordered to attend the House of Lords, and deliver their opinions on the question, whether the King of England had power to prohibit the building of ships of war, or of great force, for foreigners, and they answered that the king had no power to prohibit the same." But, indeed, if the pretension that a Government can, by common natural law, interfere to prevent all dealing in contraband of war between its subjects and a belligerent, what occasion would there be for municipal laws, of the nature of our Foreign Enlistment Act, at all? Why, when in 1793, the British Government complained to the United States of the building and equipping of privateers in the American ports, did President Washington see it necessary to obtain an Act of Congress to enable him to repress that practice?

why, in 1838, did the United States, again, on the application of Great Britain, pass an Act, giving additional powers to the executive in this matter? -and why does the American Case set forth the extraordinary doctrine, which we shall come to presently, that a belligerent "has a right to ask to have the powers conferred upon the neutral by law increased, if found insufficient?"

The third American proposition is, "that a neutral is bound to enforce its municipal laws, and its executive proclamations, and that a belligerent has a right to ask it to do so; and also the right to ask to have the powers conferred upon the neutral by law increased, if found insufficient." The British Countercase meets this preposterous position, in the first place, with a flippant remark, doubtless considered very smart, to the effect that, "the British Government does not dispute that a belligerent government may, if it think fit (not "has the right to "), ask for any of these things, but that the neutral power is not under any international obligation to comply with the request." In saying this, it is overlooked that having "a right to ask," pre-supposes a right to expect compliance; whereas, the whole pretension put forward in this article is utterly untenable, as being inconsistent with the Sovereign rights of the neutral state. Right or wrong, our municipal law, known as the "Foreign Enlistment Act," was the result of spontaneous action on the part of our Parliament, involving us in no responsibility to Foreign States. In it, the power was reserved to the Sovereign, with the advice of the Privy Council, to sus