sent by sea to invade an enemy's territory, and each arm of the force so sent, infantry, cavalry, artillery, were embarked in different ships. The whole would still form one expedition. So here, ships, guns, crew, are each a part of one entire whole to be employed and used in furtherance of one common design. This is happily expressed in the American Law Review, in the article already cited: "It was not," writes the author, "because the Messrs. Laird sold a war ship to the confederates that we have a claim against England for a breach of international law; but it was because collateral arrangements for completing the equipment and armament of the ship so sold, by placing on board officers and crew, guns and provisions, rendered the entire procedure, in fact, the inception of a hostile undertaking from the confines of a neutral country."

Of course the question may become one of degree. The interval of time which might elapse between the sending out of the ship and that of the crew, the distance between the neutral territory and the place at which the war-crew are to join, the possible fact that it was originally intended to procure a crew in some other country than that of the neutral, the occurrence of intermediate circumstances, might fairly lead to the inference that there was no present intention to apply the vessel to the purpose of war, which in my mind is an essential element in ascribing a belligerent character to that which might otherwise have remained a purely commercial transaction.

An expedition of this kind being an undoubted violation of neutrality, every one will agree that it is the duty of the neutral gov- Duty of neutral ernment, if it knows that such expedition is about to leave government. its waters, to use due diligence to prevent it. Nor does the duty of the neutral government end here. It is also its duty to use due diligence to make itself informed as to the true character and destination of a vessel, where there is reasonable ground to suspect that such character and destination are unlawful.

The duty of the neutral government in this respect appears to me to involve three things: first, that the law of the neutral shall be sufficient to enable the executive to prevent breaches of its duties as a neutral; secondly, that, where its application is called for, the law shall be put in force honestly and in good faith; thirdly, that all proper and legitimate means shall be used to detect an intended violation of the law, so as by the application of the law to prevent it.

American argu ment as to effect of foreigu-enlistment

Having thus seen what is the present state of international law, according to the views of leading jurists and the practice of nations, more especially that of England and America, the parties to the present dispute, we are enabled to form act an opinion as to how far the assertion in the case of the United States that the English foreign-enlistment act, which, going far beyond the restraints which international law imposes on the neutral subject, prohibits even the fitting-out and equipping of vessels for the purpose of war, is only a recognition of duties imposed by international law. The proposition is altogether untenable.

It is, in the first place, altogether at variance with what we know historically to have been the origin both of the American acts of 1794 and 1818, and of the British act of 1819, to say that either of these acts arose out of, or was passed to prevent, the building or equipping or arming of ships of war to be sold to a belligerent.

The American act of 1794 was passed in consequence of the proceedings of the French envoy and consuls in the United States, British and Amerion the breaking out of the war between Great Britain and enacts, France, in procuring privateers to be fitted out and manned by Ameri

can citizens, and furnishing them with letters of marque as privateers. It was not a question of fitting out ships to be sold to the French government, but of fitting out American vessels, the property of American owners, and manned by American crews, to prey, under commissions as privateers, upon the commerce of a friendly nation.

In like manner, the American act of 1818 arose out of the precisely similar conduct of American citizens in fitting out American vessels, manned by American crews, against the commerce of Spain and Portugal, under commissions as privateers from the de facto governments of the revolted colonies of the two countries.

The Spanish minister had loudly complained that some thirty vessels, specifically named, the property of American citizens, and belonging to ports of the Union, were thus preying on Spanish commerce.

The representative of Portugal made similar complaints.

This practice carried on, on so large a scale, created great scandal; and after the complaints had gone on for two years, the act of 1818 was passed to put a check on it, if possible. This act, in addition to the enactments of that of 1794, required that a bond in double the value of the ship should be given in the case of any armed vessel, owned in whole or in part by American citizens, going out of an American port, that the vessel should not be employed against a foreign government; and gave power to the collectors of customs to detain any vessel, built for war, leaving an American port, under certain suspicious circumstances specified in the act. It is plain that this statute, like its predecessor, was directed against privateering carried on by American citizens against countries with which the United States were at peace. Building or fitting out ships of war for a belligerent had not come into question at that time at all.

In like manner the British act of 1819 had in view, not the prevention of building or equipping ships for a belligerent, in the way of trade, but the prevention of military or naval expeditions on behalf of the revolted colonies, or malcontent subjects of Spain. Its origin is briefly stated in the report of Lord Tenterden to the neutrality laws commission:

The British foreign-er listment act may be said to have arisen from the provision of a treaty; that with Spain of the 28th of August, 1814.

This treaty, or, as it is called, "additional articles to the treaty of July 5, 1814," contains the following article:

"ARTICLE III. His Britannic Majesty, being anxious that the troubles and disturbances which unfortunately prevail in the dominions of His Catholic Majesty in America should entirely cease, and the subjects of those provinces should return to their obedience to their lawful sovereign, engages to take the most effectual measures for preventing his subjects from furnishing arms, ammunition, or any other article to the revolted in America."

In 1818 the reactionary policy of King Ferdinand, the prohibitory duties imposed by him on British commerce, and the ingratitude with which he treated British officers and others who had served his cause in Spain, had provoked a great deal of irritation in England; and there was a considerable party in the House of Commons, headed by Sir James Macintosh, who were prepared to support the claims of the Spanish American colonies to independence.

Expeditions were said to be in preparation for rendering active assistance both to the malcontents in Spain and to the rebels in America, in spite of a proclamation forbidding such expeditions, which had been published in 1817; and the Government consequently found that it was necessary, in order to keep good faith with Spain and to prevent infractions of British neutrality, to bring in an act of Parliament to provide for the case which now for the first time arose in modern history, of Great Britain being neutral at the time of a great maritime war,1

That it was against armaments going out from the shores of Great Britain that the measure was directed is plain from some of the argu

1 See report of commission, p. 37; British Appendix, vol. iii.

ments used by Mr. Canning in the course of the debate on the bill. Thus he says:

If a foreigner should chance to come into any of our ports, and see all this mighty armament equipping for foreign service, he would naturally ask, "With what nation are you at war?" The answer would be, "With none."

"For what purpose, then," he would say, "are these troops levied, and by whom?" The reply of course must be, "They are not levied by government; nor is it known for what service they are intended; but, be the service what it may, government cannot interfere." Would not all that give such a foreigner a high idea of the excellence of the English constitution? Would it not suggest to him that for all the ordinary purposes of a state there was no government in England? Did the honorable and learned gentlemen not think that the allowing of armaments to be fitted out in this country against a foreign power was a just cause of war?1

Mr. Robert Grant, another member of the government, said that— Every government, in its foreign relations, was the representative of the nation to which it belonged, and it was of the highest importance to the peace of nations that governments should be so considered. Nations announced their intentions to each other through the medium of their rulers. Hence every state knew where to look for expressions of the will of foreign nations; where to learn whether war or peace was intended; where to demand redress for injuries, and where to visit injuries unredressed. But all this system was inverted and thrown into confusion, if the governnent might act in one way and the nation in another. All this system was at an end if, while we were professedly at peace with Spain, she was to be attacked by a large army of military adventurers from our own shores-a sort of extra-national bodyutterly irresponsible-utterly invulnerable, except in their own persons-for whose acts no redress could be demanded of the British government-who might burn, pillage, and destroy, then find a safe asylum in their own country, and leave us to say, We have performed our engagements-we have honorably maintained our neutral character."

But the language of these acts being large enough to embrace a case of the equipping a vessel for a foreign belligerent, the foreign-enlistment act has been made available for the purpose of preventing a traf fic which is calculated to cause embarrassment to a government pressed by the remonstrances of belligerents. And this act having been so often appealed to and discussed, a notion has sprung up that the equipment of vessels of war, though in the way of trade, is a violation of neutrality, while, in fact, it is only a violation of the municipal law.

Mr. Dana, in the passage before cited, puts the matter on the right ground.

As to effect of act

Again, it is idle to contend that alterations in the law, since made by statute, to give a greater power to the executive in dealing with suspected vessels, are to be taken as the measure of of 1870. the obligations incumbent on the British government by international law. Catching at a few words in the report of the royal commissioners, who, in recommending certain statutory additions to the law, add: “In making the foregoing recommendations we have not felt ourselves bound to consider whether we were exceeding what could actually be required by international law, but we are of opinion that if those recommendations should be adopted, the municipal law of this realm available for the enforcement of neutrality will derive increased efficiency, and will, so far as we can see, have been brought into full conformity with Your Majesty's international obligations," the United States desire that it shall be taken, notwithstanding that the commissioners expressly say that their recommendations are independent of any considerations of international law; that these statesmen and learned jurists meant that without these additions the law of England failed to come up to the exigencies of international law. Such an argument is really undeserving of serious notice.

1 Hansard's Parliamentary Debates, volume 40, page 1106. See also extracts given in the Argument of the United States, page 510.

Hansard, volume 40, page 1244. Argument of United States, page 512.

Equally unfounded is the assertion that the provisions of the foreignenlistment act are only a statutory declaration of the common law of England. The enactment of that statute could only be declaratory of the common law, if co-extensive with the obligations of international law; whereas, in fact, it went far beyond them. The opinion of the judges, pronounced as far back as the beginning of the last century, that even the sale of armed ships was not contrary to the law of England, shows the rashness and the incorrectness of this assertion. But it is claimed on behalf of the United States that, whether the foreign-enlistment act was or was not more than co-extenbelligerent by inun.c sive with international obligations, the United States were entitled, irrespectively of the rule of the treaty of Washington, to have it put in force in all its rigor for their protection. This involves the important question whether, where the municipal law of the neutral is more stringent than the international law, a belligerent can claim, as of right, the putting in force of the municipal law in his behalf, and make the omission to do so a ground of grievance, as founding a right of redress at the hands of a neutral government. A few short considerations will serve to dispose of this question, which, indeed, seems to answer itself.

Right conferred on

ipal law.

When a Government makes its municipal law more stringent than the obligations of international law would require, it does so, not for the benefit of foreign states, but for its own protection, lest the acts of its subjects in overstepping the confines, oftentimes doubtful, of strict right, in transactions of which a few circumstances, more or less, may alter the character, should compromise its relations with other nations. It was in this spirit and with this object that the foreign-enlistment act was passed, as is shown by its preamble, which is in the following terms:

Whereas the enlistment or engagement of His Majesty's subjects to serve in war in foreign service, without His Majesty's license, and the fitting out and equipping and arming of vessels by His Majesty's subjects, without His Majesty's license, for warlike operations in or against the dominions or territories of any foreign prince, state, potentate, or persons exercising or assuming to exercise the powers of government in or over any foreign country, colony, province, or part of any province, or against the ships, goods, or merchandise of any foreign prince, state, potentate, or persons as aforesaid, or their subjects, may be prejudicial to and tend to endanger the peace and welfare of this kingdom; and whereas the laws in force are not sufficiently effectual for preventing

the same:

Now, it is quite clear that the obligations of the neutral state spring out of, and are determined by, the principles and rules of international law, independently of the municipal law of the neutral. They would exist exactly the same, though the neutral state had no municipal law to enable it to enforce the duties of neutrality on its subjects. It would obviously afford no answer on the part of a neutral government to a complaint of a belligerent of an infraction of neutrality, that its municipal law was insufficient to enable it to insure the observance of neutrality by its subjects, the reason being that international law, not the municipal law of the particular country, gives the only measure of international rights and obligations. While, therefore, on the one hand, the municipal law, if not co-extensive with the international law, will afford no excuse to the neutral, so neither, on the other, if in excess of what international obligations exact, will it afford any right to the belligerent which international law would fail to give to him.

In one respect, and in one respect only, does the municipal law, when in excess of international law, give a right to the belligerent. Equality being of the essence of neutrality, he has a right to insist that the neu

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.

In like manner when it is sought, in the case of the United States, to make the Queen's proclamation of neutrality the measure Effect of proclamaof 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,