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tral subject shall equally be compelled to keep within the municipal law in dealing with the adversary as when dealing with himself. A belligerent is also beyond question perfectly at liberty to urge upon the neutral government, in the way of solicitation or even of remonstrance, to enforce the municipal law; but so long as it is not enforced against himself he has no right to redress, because it is not put in force against his enemy.

I am at a loss exactly to understand for what purpose these points have been brought forward, and so strenuously insisted on, in the American arguments. For, the rule prescribed to us by the treaty, and to the benefit of which the United States are, therefore, entitled at our hands, is in the very terms of the foreign-eulistment act. I presume the purpose was to create a foundation for the imputation against Great Britain of not having acted in good faith. In that respect I may have to advert to these arguments again. For my present purpose it is enough to have cleared the ground of them.

Effect of proclama

In like manner when it is sought, in the case of the United States, to make the Queen's proclamation of neutrality the measure of the international obligations of her subjects, every law- tion. yer ought to know that this is to give to a royal proclamation an authority which it does not possess. The purpose of such a proclamation, used only in great conjunctures, is to remind the subject of the provisions of the law, and to warn him against breaking it; and if, after such warning, a man offends against the law, his offense is aggravated by the fact that he has set the injunctions of the sovereign at defiance; but such a proclamation cannot make or add to the law, or alter it in the smallest particular. The proclamation of 1861 was in the accustomed form. It drew attention to the enactments of the foreign-enlistment act, and warned all persons subject to British law that, if they did any acts in contravention of that act, or in violation of the law of nations, as by enlisting in the military service, or serving in any ship of war or transport, of the contending parties; or going or engaging to go beyond the seas for the purpose of enlisting, or procuring, or attempting to procure, within Her Majesty's dominions, others to do so; or fitting-out, arming, or equipping any vessel to be employed as a ship of war, or privateer, or transport, by either of the contending parties; or by breaking or endeavoring to break any blockade lawfully and actually established by or on behalf of either of the said contending parties; or by carrying officers, soldiers, dispatches, arms, military stores, or materials, or any article or articles considered and deemed to be contraband of war, according to the law or modern usage of nations, for the use or service of either of the contending parties-all persons so offending would incur and be liable to the several penalties and penal consequences by the said statute or by the law of nations in that behalf imposed or denounced. The Queen's subjects are further warned that all persons entitled to her protection, if they should misconduct themselves in the premises, would do so at their peril and of their own wrong, and that they would in nowise obtain any protection from Her Majesty against any liabilities or penal consequences.

The effect is that persons are warned that infractions of the foreignenlistment act will be visited with the penalties of that statute, while acts within the penalties of international law will be liable to those penalties, (namely, seizure and confiscation of property,) and that against the latter penalties no protection from the Crown must be expected.

But the proclamation contains no prohibition of these latter acts,

namely, dealing in contraband of war, or breaking blockade; nor, if it did, would such prohibition make such acts an offense: such a proclamation has never been understood by British statesmen or lawyers as making either of these things an offense against the municipal law, or as what the government was called upon to prevent, or would be justified in attempting to prevent.

Nor have similar proclamations of Presidents of the United States been dealt with as imposing additional obligations on American citizens, or as subjecting them to additional penalties, or as carrying the obligations of the state further than those imposed by international law. The American authorities which I have cited establish this beyond all possibility of controversy.

sels nnder rules of treaty.

To return to the subject of the equipment of vessels. Though I have Fquipment of ves- thought it desirable, with a view to other parts of this case, to work out the question of neutral commerce to its full extent, and though I have come to the conclusion that by the general law of nations the sale of a ship of war, though intended for the use of a belligerent, is not, when merely a commercial transaction, a breach of neutrality, yet, as Great Britain has consented that the mere equipping of such a ship, though done in the way of trade, shall be taken to have been a breach of neutrality which the British government was bound to use due diligence to prevent, I agree with the rest of the tribunal that we must for the present purpose, in respect of the fitting out and equipping of vessels, take the rules of the treaty as the test of the alleged omissions and consequent liability of the Queen's government.

Construction

Though of opinion that Her Majesty's government were quite right in of saying that the rules laid down by the treaty are not such rules of treaty. as international law would have prescribed at the time these claims arose, I agree that we are bound by the rules, and that it is our duty to give full effect to them in dealing with these claims. However great and unexampled the concession made by Great Britain in consenting to be bound, in respect of past international obligations, by rules which had no existence in international law when the breaches of neu tral obligations complained of are alleged to have occurred, I still think that we must proceed in this inquiry as though the rules of the treaty had been, either by international law or by convention between the two countries, binding on Great Britain at the time of the civil war. I cannot but concur with Mr. Evarts that we must give the same effect to those rules as regards the past as we should give to them if dealing with a case which had arisen since they were agreed to by the two nations, nor do I indeed understand this proposition to be disputed by the counsel on the part of Great Britain. The question is whether due diligence was used by the British government to satisfy the exigency of the obligations prescribed by those rules.

I proceed, then, to consider what is this "due diligence" which the British government admits that it was bound to apply to prevent the fitting out and equipping of the vessels in ques

Due diligence, what? tion.

I apprehend that such diligence would be neither greater nor less than any other neutral government would be bound to apply to the preventing of any breach by its subjects of any head of neutral duty prescribed by international law.

The difficulty of the position is, that the question has not hitherto come within the range of juridicial discussion on subjects connected with international law. Hitherto, where a government has acted in good faith, availing itself fairly of such means as were at its disposal, it has not

been usual to consider it responsible to a belligerent government for acts of its subjects that might have eluded its vigilance, or that the degree of diligence exercised by it should be submitted to judicial appreciation. And no country has insisted more strongly on this as the limit of national responsibility than that of the United States. We must endeavor to find a solution for ourselves.

As I have already observed, I cannot agree that the question of what is "due diligence" should be left to the unassisted mind of each individual arbitrator; nor can I agree that the solution is to be found in the facts of each individual case; and though judges may be often disposed to apply the maxim, to which our honorable president has more than once referred, ex facto jus oritur, it is, I think, one which must not be pushed too far. I agree with M. Troplong, who, writing on this subject with reference to civil law, after referring to the different opinions of jurists on the subject of diligence, says:

Il est vrai que jusqu'à présent les tribunaux se sont montrés assez indifférents sur ces disputes de la chaire; mais peut-être pourrait-on leur faire le reproche de n'avoir amorti la vivacité de la question qu'en étouffant tout ce qui est discussion de système et point de droit, sous la commode interprétation des faits, et sous un équitable mais facile arbitraire. Néanmoins, dans cette matière, comme dans toutes les autres, il y a des règles qu'il faut se garder de dédaigner: elles aident le magistrat, elles font luire de précieuses lumières pour ceux qui ont mission de discuter sur les faits et de les juger. Ces règles m'ont paru simples et judicieuses; je vais les exposer comme je les entends; dans tous les cas, et dussé-je me tromper, je prie le lecteur de ne pas m'adresser, comme fin de non-recevoir, le reproche de me livrer à d'oiseuses digressions. De tous les systèmes, le moins excusable, à mon avis, c'est celui qui, sous prétexte de fuir l'esprit de système, se fait une loi de n'en avoir aucun.1

It seems to me, therefore, right, before proceeding to deal with the facts, to seek in the domain of general jurisprudence for principles to guide us in judging how far the obligations of Great Britain have or have not been satisfied.

Diligentia and culpa.

No branch of law has been the subject of more discussion among juridical writers than that of diligentia and its correlative culpa, the latter being neither more nor less than the absence of the former. I was prepared to expect, from the able men who have prepared the pleadings of the United States, some assistance to guide us to right conclusions as to the standard of diligence required of a neutral government for insuring the obedience of its subjects in matters of neutrality. But after a vague statement that "the extent of the diligence required to escape responsibility is, by all authorities, gauged by the character and magnitude of the matter which it may effect, by the relative condition of the parties, by the ability of the party incur ring the liability to exercise the diligence required by the exigencies of the case, and by the extent of the injury which may follow negligence," the only authority cited in any detail is that of an obsolete author, whose exposition of the Roman law has been exploded by modern science. After this, the case breaks out into the following vague and declamatory statement, not of what the law is, but of what the United States Government desire it shall be understood to be:

2

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 on the soil of the neutral against its will, and thus possi

"Code civil expliqué," vol. i, p. 479.

2 United States Case, p. 152.

bly 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 find them identical with the measure of duty which Great Britain had previously admitted.1

This is, of course, to beg the whole question in dispute. But it is obvious that a matter of so much importance, as lying at the very root of this inquiry, requires a more logical and precise consideration than the foregoing rhetorical statement presents.

The jurists of the seventeenth century, among whom Vinnius occupies a prominent place,' divided the diligentia and corresponding Opinions of jurists. culpa of the Roman law into three degrees. Thus we have culpa lata, levis, levissima, taking the intermediate degree, or culpa leris, as being the absence of the diligence which a man of ordinary prudence and care would apply in the management of his own affairs in the given circumstances of the case. Though attacked by Donellus, this tripartite division of diligence and default held its ground among juridical writers for a considerable time; but on the formation of the French code, the practical good sense of those by whom that great work was carried out, so visible in their discussions, induced them to discard it, and to establish one common standard of diligence or care as applicable to all cases of civil obligation, namely, that of the "bon père de famille," the "diligens paterfamilias" of the Roman digest. The code Napoléon has been followed in the codes of other countries. Among others, the Austrian code has lately adopted the same principle.3

The juridical view, too, of the earlier writers was not destined to stand its ground. After it had been assailed by Thibaud and Von Lohr, Hassé, in a most learned and able treatise, "Die Culpa des römischen Rechts," thoroughly exposed its unsoundness, and his views have since been fol lowed by a series of German jurists, including Professor Mommsen in his well-known work "Beiträge zum Obligationsrecht."4

French authors have for the most part taken the same view. Commentators on the code, Duranton, Ducarroy, Troplong, and lastly M. Demolombe, in his great work, the "Cours du code civil," have agreed that there can only be one standard for the diligence required in the affairs of life, where the interests of others are concerned, namely, that of men of ordinary capacity, prudence, and care.

"Qu'est ce que la diligence d'un bon père de famille?" asks M. Troplong:5

C'est la diligence de celui qui, comme le dit Heineccius, tient le milieu entre l'avare aux cent yeux et l'homme négligent et dissipé. C'est dans le système dont M. Ducarroy est l'organe, et que j'adopte pleinement, la diligence qu'un individu, aussi diligent que les hommes le sont ordinairement, apporte à la conservation de ce qui lui appartient. On voit qu'en ce point les deux systèmes se rencontrent, et conduisent à une même définition-c'est-à dire, à ce juste milieu qui est dans la nature de l'humanité.

"The only thing to be considered," says Professor Mommsen, "is whether the default is such as does not occur to a diligent father of family in general." "The care to be taken is 'qualem diligens paterfamilias suis rebus adhibere solet."

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After distinguishing between culpa in criminal and in civil cases, the same learned writer says:

It is important, therefore, not so much to distinguish the degree of culpa, but rather to decide the starting-point at which responsibility for inattention and negligence

commences.

This starting-point is settled according to one rule for all those cases in which there exists, not a simple responsibility for dolus, (and culpa lata,) but where culpa is to be imputed; culpa being admitted in those cases where the conduct falls short of the measures which a diligens paterfamilias is in the habit of observing in his affairs.

Only under some few obligatory conditions is a decision more favorable to the debtor admissible, in so far that in these cases he is allowed to excuse himself from the responsibility, by proof that in his own affairs he is by habit equally negligent.1

"The ordinary conduct of an intelligent, prudent, and careful Hausrater, of a bonus et diligens paterfamilias,'" says Rivier in the Rechtslexicon of Holzendorff, "affords the normal measure of the obligation of diligence. He who so conducts himself is in general free from all reproach. If he acts otherwise, he is in culpa and responsible."

"The measure," says Dr. Windscheid,"by which to determine whether particular conduct is open to the charge of negligence or not is the conduct of men in general."3

Professor Unger, in his "System des österreichischen allgem. Privatrechts," thus writes of culpa levis, according to Austrian law:

Culpa levis consists in the omission of that care which an attentive and judicious head of a family regularly observes, (diligentia diligentis patrisfamilias.) The want of this care, this kind of culpa, is generally understood, when speaking merely of oversight, of culpasimply. The observance of a higher degree of care than this is not required; this is the lightest offense for which a man can be made responsible; a culpa lerissima, going beyond culpa levis, does not exist either according to general or to Austrian law. The culpa levis forins the boundary of responsibility. It is by itself omnis culpa; on the other side of this limit begins the province of accident, for which the actors are not held liable.

The civil code treats of this culpa leris in § 1297, where it states the highest degree of diligence and attention required to be that "which can be exercised by ordinary capacities." The omission of this care forms the lightest offense for which any one can be held responsible. By the diligence and attention "which can be exercised by ordinary capacities" must, however, be understood what, in another place, the code calls the attention "of a trusty and diligent head of a family," the care "of a good householder."

Stubenrauch, in his commentary on the Austrian code, treats the whole subject of culpa with much ability and learning. He ends by saying:

It is to be assumed that every man who is in possession of his faculties, is capable of that degree of diligence and attention which can be exercised by men of ordinary capacity. Whoever by the absence of this diligence and care causes injury to another, incurs liability."

Mr. Justice Story, with the good sense which characterizes his writings, says:

Common or ordinary diligence is that degree of diligence which men in general exert in respect to their own concerns. It may be said to be the common prudence which men of business and heads of families usually exhibit in affairs which are interesting to them; or, as Sir William Jones has expressed it, it is the care which every person of common prudence and capable of governing a family takes of his own concerns. It is obvious that this is adopting a very variable standard, for it still leaves much ground for doubt as to what is common prudence, and who is capable of governing a family. But the difficulty is intrinsic in the nature of the subject, which admits of an approximation only to certainty. Indeed, what is common or ordinary diligence is more a matter of fact than of law, and in every community it must be judged of by the actual

"Beiträge," &c., vol. iii, p. 360.

2" Rechtslexicon," vol. i, tit. "Culpa."

3 Windscheid, "Lehrbuch des Pandektenrechts," Band 1, p. 256.

4 Vol. ii, p. 243.

5 Stubenrauch, "Comm. zum allg. öst. B. Gesetzbuch," pp. 1294-97.

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