to which Her Majesty's government, through Earl Russell, has given its assent:

[147] 1. That a neutral government is bound to use *all the means in its power to prevent the equipping, fitting out, or Principles recogarming, within its jurisdiction, of vessels intended to cruise nized in that corre against a power with which it is at peace.

spondence.

2. If the means within its power are, in the opinion of either belligerent, inadequate for the purpose, it is bound to receive suggestions of changes from the belligerent, and if it be true that the means are inadequate, it should so amend its laws, either in accordance with such suggestions or otherwise, as to put new and more effective means in the hands of its Executive.

3. That it is bound to institute proceedings under its laws against all vessels as to which reasonable grounds for suspicion are made to appear, even if the grounds for suspicion fall short of legal proof.

The Government of Portugal, during the whole correspondence, offered no evidence to prove that captures had been made by armed vessels illegally fitted out, equipped, or armed in the United States, nor even statements of facts tending to lead to the discovery of such evidence, which were not at once used for the purpose of detaining such vessels, or of punishing the guilty parties; nor did they contest by proof the allegation of Mr. John Quincy Adams that the Government

of the United States had done everything in its power to per[148] form its duties as a neutral, and to execute its laws. The *cor

respondence shows exclusively that in every case in which the United States was furnished either with positive legal proof, or with such an intimation of the facts as would enable them to pursue the investigation themselves, they acted with the vigor which was required of them by International Law, and which Great Britain failed to show in similar cases during the rebellion.

The claims lay buried until they were exhumed by Mr. Figaniere, in 1850, as an offset to the "General Armstrong" case; and would have been forgotten if Earl Russell had not rescued them from oblivion.

The latest official act of Her Majesty's Government, indicating the views of Great Britain as to the duties of a neutral in time Rules in the Treaty of war, is to be found in the rules contained in Article VI of of Washington. the Treaty of Washington. It is true that it was thought essential by the British negotiators to insert in that instrument a declaration on the part of Her Majesty's Government that they could not consent to those rules as a statement of principles of International Law which were in force at the time when the claims now under discussion arose. But the United States were then, and are still, of the opinion, and they confi

dently think that the Tribunal of Arbitration will agree with [149] them, not only that those rules were then in force, but *that there

were also other rules of International Law then in force, not inconsistent with them, defining, with still greater strictness, the duties of a neutral in time of war.

Article VI of the Treaty of Washington contains the following rules: “A neutral government is bound—

"First, to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a Power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction 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, to warlike use.

"Secondly, not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men.

"Thirdly, to exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties.”

Article VII contains the following provision as to compensation: "In case the Tribunal finds* that Great Britain has failed to fulfill any duty or duties as aforesaid, it may, if it think proper, proceed to [150] award a sum in gross, to be paid by Great Britain to the United States, for all the claims referred to it ;" and Article X provides that, “in case the Tribunal find that Great Britain has failed to fulfill any duty or duties as aforesaid, and does not award a sum in gross, the high contracting parties agree that a Board of Assessors shall be appointed to ascertain and determine what claims are valid and what amount or amounts shall be paid by Great Britain to the United States on account of the liability arising from such failure."

The obligation to prevent vessels of war from being fitted out, armed, or equipped, within the jurisdiction of a neutral, when such vessels are intended to cruise or to carry on war against a Power with which the neutral is at peace, is recognized almost in the identical terms in which it was stated in the original United States act of 1794, which Mr. Canning said was passed at the request of the British Government, and in the British act of 1819, passed to aid Great Britain in the performance of its duties as a neutral.

gence."

The rules impose upon the neutral the obligation to use due diligence What is "due dili- to prevent such fitting out, arming, or equipping. These words are not regarded by the United States as changing in any respect the obligations of a neutral regarding the [151] matters referred to in the rules, as those obligations were imposed by the principles of International Law existing before the conclusion of the Treaty.

The phrases "negligence" and "diligence," though opposite, are correlative expressions: the presence of the one implies the absence of the other. It happens that in the ordinary course of judicial proceedings the term "negligence" is of the one most frequently employed, and is therefore the one most often commented on and explained by writers on law. "Negligence," which is only the absence of the diligence which the nature and merits of any particular subject and the exigencies of any particular case demand as "due" from the nature of its inherent circumstances, implies blamable fault, called in the Roman law culpa, with reponsibility for consequences. The idea of obligation, either legal or moral, and of responsibility for its non-performance, is found in all the forms and applications of the question, either of diligence or of negligence.

Legal writers in England, in America, and on the Continent of Europe, have treated this matter in reference to numerous subjects of controversy, public and private. It has come under the consideration of courts in questions relating to the custody of property, [152] to the performance of contracts, to the transportation of persons

or property, to the collision of ships and railway-trains, to the discharge of private trusts, to the execution of public duties, and in many other

ways.

In most of these cases, with the Roman, Continental, and Scottish jurists, and to a certain extent with English and American courts, the

question has generally been put as one of negligence or culpa, rather than as an absence of diligence. But, nevertheless, the phrase "due diligence," exacta diligentia, is of received use in the civil law.1

The extent of the diligence required to escape responsibility is, by all authorities, ganged by the character and magnitude of the matter which it may affect, by the relative condition of the parties, by the ability of the party incurring the liability to exercise the diligence required by the exigencies of the case, and by the extent of the injury which may follow negligence.

One of the earliest and one of the best of the English expositors of the Roman law is Ayliffe, (New Pandects of Roman Civil Law as anciently established in that Empire and practiced in most European Na

tions, London, 1734.) He says: "A fault is blamable through [153] want of taking proper *care; and it obliges the person who does the injury, because by an application of due diligence it might have been foreseen and prevented."2

Vinnins, Comment. ad Inst., lib. 3, tit. 15.

Ayliffe, in his Pandects, (B. 2, tit. 13, pp. 108, 109, 110,) has given an elaborate view of the different sorts of fault or negligence, and fraud and deceit. The passage is long, but as it contains a very ample view of the opinions of the Civilians it may be useful to place a part of it in a note:

"The word fault, in Latin called culpa, is a general term; and according to the definition of it, it denotes an offense or injury done unto another by imprudence, which might otherwise be avoided by human care. For a fault, says Donatus, has a respect uato him who hurts another not knowingly nor willingly. Here we use the word offense or injury by way of a genus, which comprehends deceit, malice, and all other misdemeanors, as well as a fault; for deceit and malice are plainly intended for the injury of another, but a fault is not so designed. And therefore we have added the word imprudence in this definition, to point out and distinguish a fault from deceit, malice, and an evil purpose of mind, which accompanies all trespasses and misdemeanors. A fault arises from simplicity, a dullness of mind, and a barrenness of thought, which is always attended with imprudence; but deceit, called dolus, has its rise from a malicious purpose of mind, which acts in contempt of all honesty and prudence, with a full intent of doing mischief, or an injury. And by these last words in the definition, namely, which might otherwise be avoided by human care, we'distinguish a fault from a fortnitous case. For a fault is blamable through want of taking proper care; and it throws an obligation upon the person that does the injury, because by an application of due diligence it might have been foreseen and prevented. But fortuitous cases often cannot be foreseen, or (at least) prevented by the providence of man; as death, tires, great floods, shipwrecks, tumults, piracies, &c. Those things are superior to the prudence of any man, and rather happen by fate, therefore are not blamable. But if fraud or some previous fault be the occasion of these documents, they are not then deemed to be fortuitous cases. A fault is a deviation from that which is good; and, according to Bartolus, erring from the ordinance and disposition of a law. It is sometimes difficult to judge what is the difference betwixt a fault and a dolus, since these words very often stand for one and the same thing. There is no one in this life lives withont a fault; but he that would speak distinctly and properly, must impute a dolus to some wickedness or knavery, and a fault to imprudence. The first consists chiefly in acting, and the other in not acting or doing something which a man ought to do. According to Bartolus, a fault is divided into five species, viz, culpa latissima, latior, lata, leris, and lerissima. The first he makes to be equal to manifest deceit, and the second to be equivalent unto presumptive malice or deceit. The first and second of these distinctions (he says) approach unto fraud, and are sometimes called by the name of fraud. But a lata culpa, which is occasioned by gross sloth, rashness, improvidence, and want of advice, is never compared unto deceit or malice. For he that understands not that which all other men know and understand may be styled (says Bortolus) a supine and unthinking man, but not a malicious and deceitful person. But, I think, none of those distinctions of his have any foundation in law; for such things as admit of any degree of comparison, in respect of being more or less so, do not admit of any specific difference; as majus et minus diversas species non constituunt. For that which the law says de latioré culpâ sometimes is to be understood de lata culpâ, after the manner that a word of the comparative degree is sometimes put for a word of the positive, as in Virgil: Tristior et lacrymis oculos suffusa nitentes. Wherefore I shall here distinguish a fault into two species only, to wit, into lata and leris, though others mention a culpa S. Ex. 31- -5

*Mr. Justice Story has elaborately discussed the meaning of [154] these terms, and the extent of diligence required to avoid responsibility. He says, as the result of a comparative examination of the authorities of different nations, "What is usually done by pru*dent men in a particular country in respect to things of a like [155] nature, whether it be more or less, in point of diligence, than what is exacted in another country, becomes in fact the general measure of diligence."1

Following the example of Sir William Jones, and other writers [156] on the civil law, Mr. Justice Story favors the idea that there may be three degrees of diligence, and three degrees of negligence, which are capable of being accurately defined and applied to the various circumstances of life. But while asserting, as the authorities supported him in doing, that not only the Roman law, but the jurists of Continental Europe and of Scotland all recognize this division, he candidly concedes the difficulty of applying such a fictitious system, and he is obliged to admit the general and only sound principle, that "diligence is usually proportioned to the degree of danger of loss, and that danlerissima too. The first denotes a negligence extremely blamable; that is to say, such a negligence as is not tempered with any kind of diligence. The other imports such a kind of negligence, whereby a person does not employ that care in men's affairs which other men are wont to do, though he be not more diligent in his own business. But as often as the word culpa is simply used in the law, it is taken for that which we style culpa levis, a light fault, because words are ever understood in the more favorable sense. A culpa lerissima, or simple negligence, is that which proceeds from an unaffected ignorance and unskillfulness, (say they,) and it is like unto such a fault, which we easily excuse, either on the account of age, sex, rusticity, &c. Or, to set the matter in a clearer light, a lata culpa is a diligence in a man's own affairs, and a negligence in the concerns of other men. And a leris culpa is, when a man employs the same care or diligence in other men's affairs as he does in his own, but yet does not use all care and fidelity which more diligent and circumspect men are wont to make use of; and this may be called an accustomed negligence as well in a man's own affairs as in the business of other men. A lata culpa, I mean a great fault, is equivalent or next unto deceit or malice. And it may be said to be next unto deceit or malice two ways, namely, either because it contains in it a presumptive deceit, as when a man does not use the same diligence in another's concerns as in his own; or else because the frand is so gross and inexcusable, that, though fraud be not presumed, yet it differs but little from it. As when a person becomes negligent in favor of a friend; for though favor, or too great a facility of temper, excuses a man from malicious or knavish purposes, yet it is next of kin thereunto. And it is a rule laid down in law, that when the law commands any act of deceit to be made good, it is also always understood of a lata culpa, or a gross fault. Wherefore, since a great fault is equivalent or next unto deceit, it follows, that in every disposition of law where it is said that an evil intent or dolus ought only to be repaired, it is to be understood also of a lata culpa; which is true, I think, unless it be in the Cornelian law de Sicariis. For he who commits the crime of murder ex latà culpá, shall be punished according to the severity of that law, but in a more gentle manner; and thus herein a lata culpa is distinguished from malice, or an evil design, called dolus malus; for a murderer is liable on the score of his wicked purpose, and not on the account of gross negligence. Some say, that generally speaking, whenever the law or an action is touching a pecuniary penalty, and the law expressly mentions a dolus, a lata culpa is insufficient, and is excluded."

Numerous authorities to the same effect might be cited; but it will suffice at this stage to refer to such as are most familiar to jurists in Great Britain and the United States.

Wood's Institutes, p. 106.

Hallifax's Civil Law, p. 78.

Bell's Commentaries, § 232 et seq.

Browne's Civil and Admiralty Law, vol. 1, p. 354.

Erskine's Institutes, bk. 3, tit. 1.

Bowyer's Civil Law, p. 174.

Mackenzie's Roman Law, p. 186.

Domat's Civil Law by Strahan, vol. 1, p. 317.

Heineccius, Elementa Juris Civilis, lib. 3, tit. 14, Opera, tom. V.

1 Story on Bailments, § 14.

ger is, in different states of society, compounded of very different elements."1

The highest court of the United States has doubted the philosophy of grading the degrees of diligence and negligence into fixed classes.2 The Scottish courts have laid down a rule which is perhaps more philosophical-that where an injury has been suffered through the act or omission of another, it must be shown, in order to avoid liability, that the accident was caused without any fault of the party doing or suffering the act or omission, and through some latent cause, which could not be discerned, obviated, controlled, or averted.3

[157]

*In the discussion upon the Treaty of Washington in the House of Lords, Lord Granville, the Minister for Foreign Affairs, is represented as saying: "The obligation to use due diligence implies that the Government will do all in its power to prevent certain things, and to detain vessels which it has reasonable ground for believing are designed for warlike purposes." Lord Cairns, in the same debate, is represented as saying: "The point turns upon the words 'due diligence. Now, the moment you introduce those words you give rise to another question, for which I do not find any solution in this rule. What is the standard by which you can measure due diligence? Due diligence by itself means nothing. What is due diligence with one man, with one Power, is not due diligence with another man, with a greater Power." Sir Roundell Palmer, in a subsequent debate in the House of Commons, said that he supposed that due diligence "meant that a neutral should use, within a reasonable sense, all the means legitimately in its power."5

It is needless to say that the United States do not agree in these official definitions by Lord Granville and Sir Roundell Palmer, in the [158] sense in which they are probably made. The definition to which

Lord Cairns has given the weight of his authority appears to be nearer to the opinions as to these words, entertained by the United States.

The United States understand that the diligence which is called for by the Rules of the Treaty of Washington is a due diligence; that is, a diligence proportioned to the magnitude of the subject and to the dignity and strength of the Power which is to exercise it:-a diligence which shall, by the use of active vigilance, and of all the other means in the power of the neutral, through all stages of the transaction, prevent its soil from being violated:-a diligence that shall in like manner deter designing men from committing acts of war upon the soil of the neutral against its will, and thus possibly dragging it into a war which it would avoid :-a diligence which prompts the neutral to the most energetic measures to discover any purpose of doing the acts forbidden by its good faith as a neutral, and imposes upon it the obligation, when it receives the knowledge of an intention to commit such acts, to use all the means in its power to prevent it.

No diligence short of this would be "due;" that is, commensurate with the emergency, or with the magnitude of the results of negligence. Understanding the words in this sense, the United States finds them ideutical with the measure of duty which Great Britain had previously admitted.

2

Story on Bailments, § 14.

Steamboat New World vs. King, 17 Howard Reports, page 475. See also the author ities there cited.

Hay on Liabilities, ch. 8.

London Times, June 13, 1871.

A speech delivered in the House of Commons, on Friday, August 4, 1871, by Sir Roundell Palmer, M. P. for Richmond. London and New York, Macmillan & Co., 1:71, page 28.