*

case it should turn out that that Government was at war with the "selfstyled Government of Buenos Ayres." He further stated that he did not make the application in order "to raise altercations or to require satisfaction," but that he solicited "the proposition to Congress of such provisions by law as will prevent such attempts for the future," being persuaded that my [his] magnanimous Sovereign will receive a more dignified satisfaction, and worthier of his high character, by the enactment of such laws by the United States." Mr. Monroe replied, on the 27th of the same month, "I have communicated your letter to the President, and have now the honor to transmit to you a copy *of a message which he has addressed to Congress on the sub- [139]. ject, with a view to obtain such an extension, by law, of the Executive power as will be necessary to preserve the strict neutrality of the United States, * and effectually to guard against the danger in regard to the vessels of your Sovereign which you have anticipated." The act of 1817 was passed and officially communicated to the Portuguese Minister on the 13th of March, 1817. On the 13th of May, 1817, the Portuguese Minister informed the Secretary of State that although "the law passed at the last session of Congress obviated a great part of the evils" of which he complained, he feared there would be a lack of vigilance on the part of some of the officials, and he asked for special instructions to them. On the 8th of March, 1818, he complained to Mr. John Quincy Adams, then Secretary of State, of the capture of "three Portuguese ships, captured by privateers fitted in the United States, manned by American crews, and commanded by American captains, though under insurgent colors;" and he asked for satisfaction and indemnification for the injury. The note making this complaint contained neither proof of the allegations in the note as to the fitting out of vessels in the United States, or as to their being manned by Americans, nor indications from which the United States might have discovered *those facts for themselves. The [140] Secretary of State, therefore, in reply to such an allegation, very properly stated the fact that the United States had "used all the means in its power to prevent the fitting out and arming of vessels in their ports to cruise against any nation with whom they were at peace," and had "faithfully carried into execution the laws to preserve inviolate the neutral and pacific obligations of the Union ;" and therefore could not consider themselves "bound to indemnify individual foreigners for losses by captures." It will not escape the notice of the Tribunal that Mr. Adams calls attention to the distinction between the national obligations under the law of nations and the duty of the Government to execute the municipal law; and that he grounds his refusal upon the fact that both have been complied with.

The Portuguese Minister next complains (October 15, 1818) that a privateer is fitting out in Baltimore, and the Secretary of State orders a prosecution and asks for the names of the witnesses, and it appears that before November 13th the Portuguese Minister is informed that the grand jury have found a bill against the accused. On the 14th of November the Portuguese Minister sends to the Secretary of State depositions and the names of witnesses, and informs him that he is alarmed at the "thick crowd of individuals who are en- [141] gaged in this iniquitous business," and that "great care has been taken to intercept the notice of such facts from the knowledge of the Executive." Mr. Adams, on the 18th of November, informs the Minister that the evidence has been placed in the hands of the prosecuting attorney of the United States. It thus appears that the second com

plaint was disposed of to the satisfaction of the representative of Portugal.

The third complaint, made on the 11th of December, 1818, states that an armed vessel called the Irresistible, sailing under so called Artigan colors, was committing depredations on the coast of Brazil, and that the commander and crew of the vessel were all Americans. It will be observed that in this complaint there is no charge made of an illegal use of the soil or waters of the United States in violation of their duties as a neutral. The charge is that citizens of the United States, beyond their jurisdiction, have taken service under a belligerent against Portugal.

The next communication from the Portuguese Minister is made on the 4th of February, 1819. He asks to have the neutrality act of 1817 continued. The Secretary of State answers, on the 9th, that that has already been done by the passage of the act of 1818. This appears to have been regarded as entirely satisfactory.

[142] *The next note is dated the 17th of March, 1819. Although stating that there were persons in the United States "interested in this iniquitous pursuit of plundering the lawful property of an inoffensive friendly nation," in which statement the Minister undoubtedly supposed that he was correct, he says that he has "abstained from written applications about the new individual offenses," and he makes no particular complaint, furnishes no evidence, and indicates no suspicions. It appears to be the object of the note to induce the Government of the United States to withdraw its recognition of the Artigan flag. "If this," he says, "is once declared illegal, and the prizes made under it acts of piracy, all occasions of bitterness and mistrust are done away." "I can, in the capacity of Minister of my Sovereign, certify you solemnly, and officially too, if necessary, that Artigas and his followers have been expelled far from the countries that could afford them the least means and power of navigating, and consequently have no right to fight by sea. What becomes, then, of the rights of privateers under this flag?" When the Tribunal come to consider the case of the Shenandoah at Melbourne they

will find this language, which was referred to with approbation, [143] and assumed by Earl Russell,' to be exactly in point in dispos

ing of the claims growing out of the acts of that vessel.

On the 22d of April the Secretary of State acknowledges the note of December 11, 1818, and says that he is informed the commander of the Irresistible has returned to Baltimore, and will be prosecuted for a violation of neutrality, and asks the Minister to furnish proof for the trial. On the 23d of November, 1819, the Minister again complained. He says: "One city alone on this coast has armed twenty-six ships, which prey on our vitals, and a week ago three armed ships of this nature were in that port waiting for a favorable occasion of sailing for a cruise." But he furnishes no facts, and he gives neither proof nor fact indicating the city or the district which he suspected, and nothing to afford the Government any light for inquiry or investigation. On the contrary, he says: "I shall not tire you with the numerous instances of these facts;" and he adds, as if attaching little or no real importance to the matter: "Relying confidently on the successful efforts of this Government, I choose this moment to pay a visit to Brazil."

On the 4th of June, 1820, the Minister, not yet having departed, informs the Secretary of State that he desires to offer his "thanks [144] for the law that prohibits the entrance of privateers in the *most

1 Vol. III, page 566.

important ports of the Union;" that he "acknowledges the salutary influence of the Executive in obtaining these ameliorations;" and that he is "fully persuaded of the sincere wishes of this Government to put a stop to practices so contrary to friendly intercourse."

On the 8th of June, 1820, he gives information of a formidable privateer, which he says is to be fitted out at Baltimore, and adds that he "has not the least doubt that the supreme Executive has both the power and the will of putting a stop to this hostile armament; " to which the Secretary of State, on the 20th of July, replies that "such measures have been and will continue to be taken, under direction of the President, as are within the competency of the Executive, and may serve to maintain inviolate the laws of the United States applicable to the case.”

On the 16th of July the Minister "laid before this Government the names and value of nineteen Portuguese ships and their cargoes, taken by private armed ships fitted in the ports of the Union by citizens of these States;" but he did not accompany this allegation with proof of such fitting, or with anything tending in the remotest degree to fix a liability on the United States, or to afford them the means of an independent examination. He also proposed a joint commission for the settlement of these matters, which the Secretary of State, on [145] the 30th of September, 1820, declined, saying that "the Government of the United States has neither countenanced nor permitted any violation of neutrality by their citizens. They have, by various and successive acts of legislation, manifested their constant earnestness to fulfill their duties toward all parties to the war. They have repressed every intended violation of them which has been brought before their courts and substantiated by testimony." Other claims were transmitted to the United States Government on the 4th of December, 1820, unaccompanied, as had been the invariable case before, by anything tending to show a liability in the United States to make compensation. The case appears to have been closed by an offer from Portugal, on the 1st of April, 1822, to grant to the United States exceptional commercial advantages if the United States would recognize these claims, and the refusal of the United States, on the 30th of April, to do so.

It is worthy of remark that in Earl Russell's elaborate statement of this correspondence, in his note of the 30th of August, 1865, he omits, with a completeness which argues design, certain parts of it which showed that the United States were animated with a constant desire to perform their international duties. Thus, nothing is [146] said of the Portuguese note of February 4, 1819, asking that the neutrality act of 1817 may be continued in force, and the American reply stating that it had been so continued. Nothing is said of the American note of the 22d of April, 1818, stating that the commander of the Irresistible, the vessel referred to in the Portuguese note of December 11, 1818, had returned to Baltimore and would be prosecuted. The Amer ican note of the 20th of July, 1820, is also omitted, in which, in answer to the Portuguese note of the 8th of June, 1820, it is stated that measures have been, and will continue to be, taken to maintain inviolate the laws of the United States.

The tribunal of arbitration cannot fail to observe that these suppressed notes had an important bearing in forming a judgment upon the correctness of the conduct of the Government of the United States in this case-a case which has received the official approval of Earl Russell, as Her Majesty's Principal Secretary of State for Foreign Af fairs. From a candid review of the whole correspondence, it appears that the United States admitted or asserted the following propositions,

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 recog⚫ arming, 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 chang ing 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 Englaud, 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