sion to revise For

Act of 1819.

Royal Commis- enforcement of neutrality, during the existence of eign Enlistment hostilities between other States with whom Great Britain might be at peace, and to inquire and report whether any and what changes ought to be made in such laws for the purpose of giving to them increased efficiency, and bringing them into full conformity with international obligations.1

Report of that Commission.

That Commission held twenty-four sittings, and finally reported that the old Foreign Enlistment. Act of 1819 was capable of improvement, and might be made more efficient by the enactment of several provisions set forth in the report.2

Among other things, the Commission recommended that it be made a statutory offense to "fit augmented, or knowingly being concerned in increasing or augmenting, the force of any ship of war, cruiser, or other armed vessel, which at the time of her arrival within the United States was a ship of war, cruiser, or armed vessel in the service of either of the said belligerents, or belonging to the subjects or citizens of either, by adding to the number of guns of such vessels, or by changing those on board of her for guns of a larger caliber, or by the addition thereto of any equipment solely applicable to war.

“11. Beginning or setting on foot or providing or preparing the means for any military expedition or enterprise to be carried on from the territory or jurisdiction of the United States against the territories or dominions of either of the said belligerents."

The Tribunal of Arbitration will also observe that the most important part of the American act is omitted in the British act, namely, the power conferred by the eighth section on the Executive to take possession of and detain a ship without judicial process, and to use the military and naval forces of the Government for that purpose, if necessary. Earl Russell is understood to have determined that the United States should, in no event, have the benefit of such a summary proceeding, or of any remedy that would take away the trial by jury.— Speeches and Dispatches of Earl Russell, Vol. II, page 266.

Commission.

out, arm, dispatch or cause to be dispatched, any Report of that ship, with intent or knowledge that the same shall or will be employed in the military or naval service of any foreign Power in any war then being waged by such Power against the subjects or property of any foreign belligerent Power with whom Her Majesty shall not then be at war." It was also proposed to make it a statutory offense to "build or equip any ship with the intent that the same shall, after being fitted out and armed, either within or beyond Her Majesty's Dominions, be employed as aforesaid;"2 and it was proposed that the Executive should be armed with summary powers similar to those conferred upon the President of the United States by the eighth section of the act of 1818. It was further proposed to enact that "in time of war no vessel employed in the military or naval service of any belligerent, which shall have been built, equipped, fitted out, armed, or dispatched contrary to the enactment, should be admitted to any port of Her Majesty's Dominions."3

The Tribunal of Arbitration will not fail to observe that these recommendations were made by a board composed of the most eminent judges, jurists, publicists, and statesmen of the Empire, who had been in public life and had participated

Commission.

Report of that in the direction of affairs in Great Britain during the whole period of the Southern rebellion; and that they were made under a commission which authorized these distinguished gentlemen to consider and report what changes ought be made in the laws of the Kingdom, for the purpose of giving to them increased efficiency, and bringing them into full conformity with the international obligations of England. The Tribunal of Arbitration will search the whole of that report, and of its various appendices, 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.

The report of the Commissioners was made in The Foreign En- 1868, but was not acted upon until after the breaking out of the late war between Germany and France. On the 9th of August, 1870, Parliament

listment Act of 1870.

1 Vol. IV, page 82.

listment Act of

passed "An act to regulate the conduct of Her The Foreign EnMajesty's subjects during the existence of hostili- 1870. ties between foreign States with which Her Majesty is at peace." This act, which may be found in Volume VII,' embodies the recommendations of the commissioners which are cited above, except that which excludes a ship which has been illegally built or armed, &c., &c., from Her Majesty's ports.

struction of that

Soon after the enactment of this statute, a vessel called the "International," was proceeded Judicial conagainst for an alleged violation of its provisions. act. The case came before Sir Robert J. Phillimore, one of Her Majesty's Commissioners who signed the report in 1868. In rendering his decision on the 17th January, 1871, he said: "This statute, passed during the last session, under which the authority of this court is now for the first time evoked, is, in my judgment, very important and very valuable; strengthening the hands of Her Majesty's Government, and enabling them 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 whom Her Majesty is at peace.?

1 Vol. VII, page 1.

* London Times, January 18, 1871. See also Admiralty and Ecclesiastical Reports, Vol. 3, page 332. See also Report of the Debate on the Foreign Enlistment Act in the House of Commons, in the London Times of August 2, 1870.

Judicial construction of that act.

International

law is a part of

These eminent commissioners and this distinguished jurist have chosen their words with the precision which might have been expected of them. They declare that, in the execution of the commission, they have only sought to bring the law of England into harmony with the law of nations. Their functions ceased when they recommended certain charges with that object in view. Parliament then took up the work and adopted their suggestions. Then, as if to prevent all misapprehension, one of the commissioners, acting as a judge, held that the act of 1870 is intended to bring the law of the realm into harmony with the international duties of the Sovereign.

The United States confidently submit that the the common law new provisions, inserted in the act of 1870, were of England. intended, at least as against the British Government, as a reenactment of the law of nations, as understood by the United States to be applicable to the cases of the Alabama, and other ships of war constructed in England for the use of the insurgents.

They conceive that Great Britain is committed to the doctrines therein stated, not merely by the articles of International Law expressed in its statutes, but also by the long-settled Common Law of England confirmed by acts of Parliament.