pend the operation of its provisions, and this power of suspension was actually employed in 1834, in order to carry out the stipulations of the Quadruple Treaty for interference in the war of succession in Spain.

emas

It is contended in the American Case, that the result of the judicial proceedings against the 'Alexandra,' which was acquitted by the jury, on the ruling of the Judge, that the acts alleged against · it did not come within the terms of the law, a decision afterwards confirmed on appeal, culated the Foreign Enlistment Act;" and it is insisted that the conduct of our Government in not forthwith acceding to the demand of the American Government to alter the Act with a view of covering such cases, was "in violation of its obligations towards the United States," and an "abandonment in advance" of that "due diligence which is defined in the Treaty of Washington as one of the duties of a neutral." To say nothing of the coolness of the argument thus put forth, let us state that the factsas too often occurs in American diplomacy—are not correctly stated. Lord Russell did not, though quite entitled to do so, meet this extraordinary requisition of the American Government with a simple refusal. He entered freely into a discussion of the subject, and stated that the Government, after consulting the officers of the crown, were willing to entertain the idea of making certain alterations in the Foreign Enlistment Act, but wished to ascertain first, whether the United States Government would be "willing to make similar alterations

in its own Foreign Enlistment Act?" To this Mr. Adams made the reply that the United States Government "did not know how their own law on this subject could be improved; "—and so the matter fell to the ground. It may be proper to state that the English Foreign Enlistment Act is much more comprehensive, and much more stringent than that of the United States. Mr. Bemis, an American counsel of acknowledged reputation, in a work on 'American Neutrality,' referred to in the Appendix of the British Counter-case, points out no less than ten particulars in which the United States is inferior to the British Law.

The fourth proposition is against "the fitting out, arming, etc.," ships for belligerents, which repeats part of the first of the three " new rules."

The fifth proposition is that a neutral is bound "to use due diligence to prevent the construction" of any vessel intended for warlike operations against a belligerent. The British Counter-case characterizes this as a "deviation or enlargement," indeed "a simple interpolation" upon the three rules consented to. It is indeed in our opinion an entirely new rule; and one utterly untenable. It is pretended to justify it upon an extract from what purports to be a translation into French of Heffter's International Law of Europe,' by Jules Bergson. In the original German, the author classes under the head of Contraband of War:-"Die freiwillige Zuführung von Kriegs- und Transport-shiffen," which means in English, "the voluntary transport or supplying of war and transport ships." The pre

tended French version of this, cited in the American Case, runs, "la construction dans les ports neutres de vaisseaux de guerre ou de commerce, pour le compte de l'ennemi dès leur sortie,"-Anglice: "The construction, in neutral ports, of vessels of war or of commerce, for the use of the enemy from the time of their going out." This marvellous effort of amplification, or interpolation-not the only one by the way, in the American Case-requires no comment. For the rest, the difficulty of preventing "the construction" of a vessel, eventually intended for warlike purposes, must be very great, almost insurmountable, with any regard for the liberty of action of the subject. The preventing the sailing of such ship after construction' " is all that can properly be attempted, and moreover would answer all the purpose required. Nevertheless, the British Government, in the new Foreign Enlistment Act, of 1870, have yielded to the American demands on this point, and prohibited "construction."

The sixth proposition is an adaptation of the second portion of the first of the three "new rules" included in the Treaty, with a tendency of serious and dangerous import, which we apprehend was, though known to the American Commissioners, not contemplated by their British colleagues when that rule was accepted. The rule in question demands due diligence to prevent the "fitting out," etc., of ships for warlike purposes, and also "to prevent the departure" 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." The first

impression upon reading this rule, in the natural collation of the parts, would be that the "preventing" of the departure referred to the vessels mentioned in the first part of the rule; in other words, that the neutral was to be bound to prevent the "fitting out," of ships, and also their "departure," supposing them to have been fitted out in spite of "due diligence," the responsibility ending with the first "departure" should it, in spite of "due diligence," be effected. But by making a separate and substantive law, as in Proposition 6, "that a neutral is bound to use like diligence to prevent the departure," etc., of any vessel, etc., "such vessel having been specially adapted, in whole or in part, within its jurisdiction, to warlike use," the injunction appears to be made applicable to vessels of war, under the flag of a belligerent, which may at any time have been "specially adapted, in whole or in part, within the jurisdiction," thus including vessels, which having escaped surreptitiously in the first instance, had afterwards been duly invested with the character and functions of a ship of war, and included in the regular maritime force of a belligerent. This would be in direct violation of all established rules on the subject, which recognize the exterritoriality of the ships of war of a belligerent, when duly invested with its flag and under proper command, whatever the antecedents of the vessel. To attempt to "prevent the departure" of such a vessel, or in other words, to capture it, would involve an act of war, which no neutral should be called upon to commit, and which indeed would at once destroy its neutrality.

The position so imperiously laid down, however, will no doubt be turned to account against us, when the American Case is argued before the Tribunal of Arbitration. This view of the case is strengthened by reference to Propositions 10 and 12, which are cited below.

Propositions 7 and 8 are against suffering neutral ports to be made use of as a base of operations, or for obtaining military supplies, etc.

Proposition 9 is that where the neutral "fails to use all the means in its power" to prevent breaches of neutrality above described, it "should make compensation for the injury resulting therefrom;" which the British Counter case will not admit as it stands; consenting to it, however, so far as regards an appreciable injury, directly caused by a violatioa of a clearly ascertained international duty."

Proposition 10 declares "that this obligation is not discharged or arrested by the change of the offending vessel into a public man of war."

Proposition 11 is that this obligation is not discharged by a fraudulent attempt of the offending vessel to evade the provisions of a local municipal law.

Proposition 12 (which as has been stated), together with No. 10, is of peculiar significance in connection with Proposition 6, is as follows:-"That the offence will not be deposited so as to release the liability of the neutral even by the entry of the offending vessel in a port of a belligerent, and there becoming a man-of-war, if any part of the original fraud continues to hang about the vessel."