The act of 7 Anne, ch. 12, enacted in conse- International law is a part of of England. quence of the violation of the law of nations by the common law the arrest for debt of the Ambassador of the Czar, Peter the Great, in London, is prominent in the history of the legislation of Great Britain.' Lord Mansfield, commenting on this act in the case of Triquet vs. Buth, 3 Burrow's Reports, p. 148, says that this act was but declaratory. All that is new in this act is the clause which gives a summary jurisdiction for the punishment of the infraction of the law. He further remarks that the Ambassador who had been arrested could have been discharged on motion. This act of Parliament was passed as an apology from the nation. It was sent to the Czar, finely illuminated, by an Ambassador Extraordinary, who made the national excuses in an oration. "The act was not occasioned by any doubt whether the law of nations, particularly the part relative to public ministers, was not part of the law of England, and not intended to vary an iota from it." Lord Mansfield further says, in reference to the case of Brevot vs. Barbot, that Lord Talbot declared "that the law of nations, in its full extent, was part of the law of England;" and adds, "I remember, too, Lord Hardwick declared his opinion to the same effect, and denying that Lord Chief 1 See Phillimore's International Law, vol. 2, ch. 8, section 194. International Justice Holt ever had any doubt as to the law law is a part of the common law of nations being part of the law of England, upon of England. the occasion of the arrest of the Russian Ambassador."1 To the same effect is the remark of Lord Tenterden, when he says "that the act of Anne is only declaratory of the common law. It must therefore, be construed according to the common law, of which the law of nations must be deemed a part."2 Blackstone states the doctrine in general terms as follows: "The law of nations is a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world, in order to decide all disputes, to regulate all ceremonies and civilities, and to insure the observance of justice and good faith, in that intercourse which must frequently occur between two or more independent States, and the individuals belonging to each. "In arbitrary States this law, wherever it contradicts, or is not provided for by the municipal law of the country, is enforced by the Royal Power; but since in England no Royal Power 31. 1 See further 1 Black. Com., pp. 43, 354; 1 Woodson's Lectures, p. 2 Novillo rs. Toogood, 1 Baruwell and Creswell's Reports, 562. law is a part of of England. can introduce a new law or suspend the execution International of the old, therefore the law of nations (when- the common law ever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the common law of the land. And those acts of Parliament which have from time to time been made to enforce this universal law, or to facilitate the execution of its decisions, are not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the Kingdom; without which it must cease to be a part of the civilized world."1 In the presence of these authorities it cannot be doubted, that the law of nations enters integrally into the common law of England, and that any enactment by Parliament on this point derives force only from its conformity with the law of nations, having no virtue beyond that, except in so far as such enactment may afford means for the better enforcement of that law within the realm of England. That eminent judge and jurist, Lord Stowell, even goes so far as to say that, while an act of Parliament can affirm the law of nations, it cannot contradict it or disaffirm it to any effect as respects foreign Governments.2 1 Blackstone's Com., vol. 4, ch. 5. See also Lord Lyndhurst's opinion, ante page 61. 2 The Louis, Dodson's Admiralty Reports, vol. 2, p. 210. International law is a part of the common law of England. Duties recog Lord Stowell's position is in perfect accordance with the observation of Lord Mansfield, in another case, viz: Heathfield vs. Chilton, that, "The privileges of public ministers and their retinue depend upon the law of nations, which is part of the common law of England. And the act of Parliament of 7 Anne, ch. 12, did not intend to alter, nor can alter the law of nations." The next act of the British Government to Queen's Procla- which the United States invite the attention of nized by the mation of Neutrality. the Tribunal, as showing to some extent that Government's sense of its duties toward the United States, is the Proclamation of Neutrality of May 13, 1861, already alluded to. It is not claimed that a belligerent has the right, by the custom of nations, to require a neutral to enforce in its favor an executive Proclamation of the neutral, addressed to its own citizens or subjects; but it is maintained that, as between Great Britain and the United States, there is a binding precedent for such a request to Great Britain. 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 Her Britannic Majesty's Government 1 Heathfield vs. Chilton, 4 Burrows, p. 2016. This observation of Lord Mansfield is cited and adopted by Phillimore, vol. 3, p. 541. Duties recognized by the Proclamation of Neu to be "breaches of neutrality," done "in contravention of the President's Proclamation" of Neu- Queen's trality, and he invited the United States to take trality. steps for the repression of such acts, and for the restoration of captured prizes. It appears that the United States complied with these requests.' Relying, therefore, upon this precedent, established against Great Britain, rather than upon a right under the laws of nations, which can be asserted or maintained against the United States or against other nations, the United States invite the attention of the Tribunal to the fact that two principles, in addition to those already deduced from the Foreign Enlistment Act of 1819, appear to be conceded by the Proclamation of May 13, 1861: 1. That it is the duty of a neutral to observe strict neutrality as to both belligerents during hostilities. Neutrality is defined by Phillimore "to consist in two principal circumstances: 1. Entire abstinence from any participation in the war; 2. Impartiality of conduct toward both belligerents." "This abstinence and this impartiality must be combined in the character of a bona-fide neutral." Bluntschli defines it thus: "La neutralité est la non-participation à la guerre. Lorsque l'état neutre soutient un des belligérents, il prend Definition of neutrality. |