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ARGUMENT. by safeguards, such as are necessary completely to effectuate the object and policy of the Act. Therefore it is very idle to say, this or that statesman spoke in such and such terms; they were very appropriate and very intelligible for the purpose for which he was speaking, but as he was not speaking with a view to construe the language of the clauses of the Act, it would be most absurd to suppose that his having used that language can throw any light on the object and policy of the Act. In truth, nothing was said which I should object to every member of the Court reading over and over again, if it had any bearing upon the matter, because it bears out my view of the general purpose of the Act, namely, that it was to vindicate our neutrality, and to prevent our being embroiled with foreign nations by operations, as to which other countries might say, "Whatever you call them, practically they are hostile to us." I think that was the view taken of it at all times; but as I do not think that ultimately we get any particular good from that part of the argument, I do not intend to dwell upon it in addressing your Lordships. But there was one argument which my friend Sir Hugh Cairns, by an ingenious device, contrived to make do duty in a more important direction, and that is what he said upon Washington's rules which preceded the enactment of the American statute. I have had on many occasions greatly to admire the ability, the ingenuity, and the courage of my learned friend; never more than on this occasion; and on this occasion in nothing more, than with respect to the reference which he over and over again made to those rules of Washington, as if they had become landmarks in the law of nations, as if they had laid down some fixed principles of international law, and then that the American statute having intended to embody those principles, and our statute, to some extent, being framed on it as a precedent, therefore, you are to look at those rules as embodying the principles meant to be protected and defended by those acts. What is the history of those rules of Washington? I can give it you very shortly. I will not read the passage, but I will give you the reference if you will have the goodness to make a note of page 712 of the last edition, that is, Lawrence's edition, of Wheaton's International Law. Your Lordships will find in a note there, concisely stated, what I think you will also find in an exceedingly excellent pamphlet, which it is, perhaps, legitimate to mention, and which has been lately published by a gentleman well known to me, Mr. Gibbs. I really think that the history of the matter is so well collected there that I cannot do better than refer to it.

Lord Chief Baron.--It is extremely useful to those who wish to look at the authorities; it collects them all together in a very convenient form.

Mr. Attorney General.-They are so accurately brought together that I felt myself justified in mentioning it, although ordinarily we do not mention any publication of so recent a

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date. My Lords, the real truth of the case is this:-the policy ARGUMENT. of the American Cabinet with regard to the mode of maintaining its professed neutrality in the war then lately broken out between England and revolutionary France was undecided, and Washington's views fluctuated and changed from time to time. The American Government were in this peculiar situation, they were not able to permit the equipment of warlike vessels in their ports equally and impartially by both belligerents, because they had a treaty with France, of which you will find the details in the publication I have mentioned, which guaranteed France against privateers being armed against France in the American ports, and against any prizes taken from the French being brought into those ports.

Now you will find, both in the chapter of Chancellor Kent's work to which my friend referred where those rules are mentioned, and in Wheaton's International Law, and everywhere else, this to be laid down as the law of nations on the subject of the equipment of ships of war in a neutral territory; that it is perfectly competent, consistently with international law, for the neutral state to permit either party to make warlike equipments of ships, everything which is forbidden by the Foreign Enlistment Act on any construction of it, without breach of neutrality, or without any breach of international law, provided it be equally and indifferently permitted, by the neutral country, to both parties. But the Americans were placed in a situation by their treaty with France, which disabled them from allowing to England that which France was doing. So that the effect of the treaty was this; although it seemed that international law had made some provision for positive stipulations of exceptional advantages in favour of one belligerent, if those stipulations had been made before the war, yet there being nothing of the kind positive here, and it being merely a stipulation that the enemies of France should not equip ships of war against France in ports of the United States, it was impossible for the United States to permit France herself to equip such ships without violating the principle of neutrality, because they could not allow Great Britain to do the same. That led to the whole complication, and those rules which have been mentioned are not rules expressing, or at any time supposed to express, absolute obligations imposed by international law upon the neutral Government, but they are, as Chancellor Kent says in the passage which my learned friend Sir Hugh Cairns referred to, founded on the principles of international law; which are these, that the neutral Government has the absolute right to prohibit a belligerent Government from carrying on any operations of that description within its territory; and having the absolute right to do that, it will fail in its duty of neutrality if it does not either prohibit it to him, or else allow it also to his adversary. Well, these rules, made by a Government which could not allow it to both parties, are made in assertion of their territorial rights against both, in order

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to avoid partiality to one contrary to the law of nations. That is the whole and sole connexion of those rules with the subject of international law. I think I will not pursue the matter further, though that connects itself with the American statute; for I may conveniently, I think, take up the history of the American statute when we begin to-morrow.

Mr. Mellish.-If your Lordship will allow me, I will hand you up this copy of the decree about the "Oreto."

Adjourned to to-morrow morning at ten o'clock.

ARGUMENT-continued.

FOURTH DAY.-Friday, 20th November 1863.

Mr. Attorney General.-My Lords, when your Lordships rose yesterday I had been referring to a subject which was treated as of considerable importance by my learned friend, although in my opinion when its meaning and bearing are rightly understood, it will turn out to have none; yet I do not wish to leave that undemonstrated, and therefore I will say a little more about it. I allude to the rules which were made by President Washington and by his Government, on the 3rd of August 1793. They were headed, "Rules adopted by the American Cabinet as "to the equipment of vessels in the ports of the United States "by belligerent powers, and proceedings on the conduct of the "French Minister." My Lords, it was an act of state, a political act, which was undoubtedly in this sense connected with rules and principles of international law--that it was warranted by those rules and principles under the circumstances in which the United States were then placed; but the notion of its being intended to be, or being in any sense whatever, an abstract declaration of the obligations and the rights of neutral states under those circumstances, is one for which there is absolutely no foundation either in history or in law.

Now, the real circumstances connected with those rules, will be best understood, I think, by, in the first place, bearing in mind the principles of law which I mentioned yesterday, and which your Lordships will find stated and explained concisely, but at sufficient length, at the beginning of the lecture of Chancellor Kent, from a passage of which Sir Hugh Cairns read to your Lordships upon that subject; it is a lecture on the general rights and duties of neutral nations; and for my purpose it will be quite enough to call your Lordships' attention to the short headings in small letters at page 124 and page 126, to show what is the nature of the subject which is being treated of by Chancellor Kent in that lecture, and in the passages which precede the one cited by my learned friend as to these rules. The first head is, "Neutrals must be impartial." That was what I mentioned to your Lordships yesterday. Now, that stands on common sense, evidently, but it is a principle recognized by international law, that if a neutrality is professed, it shall be an impartial neutrality. 8341.

X

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ARGUMENT. Consequently you will not give advantages to the one belligerent which you refuse to another, unless, indeed, (for it seems to be considered, by the writers on international law, subject to this rather remarkable exception,) you are bound to do so by some antecedent positive engagement entered into with the one party not in contemplation of those particular hostilities. It seems to be thought that, subject to that qualification, it is a settled maxim; and so far it is a duty of neutrality towards other Governments, that you will be impartial, that you will not give to the one an assistance or a liberty within your dominions which you do not equally allow to the other. That is the branch of the subject which relates to the duty of a neutral towards the belligerents. Then the next head is at page 126, which is "Neutral the duty of the belligerents towards the neutral. "territory inviolable."

Mr. Baron Channell.-Are you citing from the marginal paging?

Mr. Attorney General. It is at page 126 of my edition; there are just within an inner margin in small letters, the words. "neutral territory inviolable."

Mr. Baron Channell.-Your edition is a later one than mine; the marginal paging is preserved throughout all the editions.

Mr. Attorney General.—I beg your Lordship's pardon, page 117 is the marginal paging.

Mr. Baron Channell.-I have got it now.

Mr. Attorney General.-Having mentioned the duty of impartial neutrality first, which is a duty as I have said of the neutral to the belligerents, he now mentions the duty of the belligerents to the neutral, "neutral territory inviolable;" and he goes into that.

My Lords, I of course am not going to detain your Lordships from the real question by a disquisition upon these subjects; but it will be perfectly well known to all I think who have examined the books, that even a capture or an act of hostility within the neutral territory is a wrong to the neutral rather than a wrong by the one belligerent to the other; and it is upon the ground of vindicating their own rights, that neutrals, whose territory may be invaded by acts of this description, in comity take care that restitution is made to the other belligerent. Therefore Kent, after stating the duty of impartiality by neutrals towards belligerents, goes on to mention the duty of belligerents towards neutrals -that there is to be no violation of territory. That duty extends to this. In the first place there is of course to be no act of hostility, nothing of that nature which Sir Hugh Cairns spoke of as a proximate act of hostility, within the neutral dominion; not only that, but no acts or operations whatsoever connected with the war and having for their object the promotion of the war are to take place within the neutral territory on the part of either belligerent, without the consent and permission, and against the will of the