provided those powers had been bona fide exercised, the United States were not responsible for any losses, however severe, inflicted by any vessel or vessels, however numerous, fitted and armed within their territories.

It has been the practice of the executive authorities of the United States, in enforcing the law, to act upon information laid before them by consuls of foreign powers, or other persons interested officially or otherwise in preventing the acts prohibited by the law, and to require the persons furnishing such information to produce evidence in support of it; and the importance of such information, to enable the neutral power to intervene in proper cases, was expressly pointed out in the letter of Mr. Jefferson to Mr. Hammond, of the 5th September, 1793, annexed to the treaty of the 19th November, 1794, between the United States and Great Britain.

LAW OF GREAT BRITAIN.

The law of Great Britain on this subject was, at the time of the hap pening of the events out of which the questions submitted to the arbitrators arose, embodied in an act of Parliament passed in the year 1819, and entitled "An act to prevent the enlisting or engagement of His Majesty's subjects to serve in foreign service, and the fitting out or equip ping, in His Majesty's dominions, vessels for warlike purposes without His Majesty's license." This act is commonly referred to as the "foreign enlistment act." At the time when it was proposed to Parliament, it was reported and believed that expeditions were being prepared in England for the assistance of the Spanish-American colonies, which were then at war with their mother country. The circumstances, therefore, which gave rise to the passing of the British law, were similar to those which gave rise to the passing of the corresponding laws in the United States, with the difference that in the United States armed vessels had actually been fitted out, and had actually committed hostilities and depredations against the commerce of a friendly power, whereas in Great Britain it was only apprehended that some vessels were about to be fitted out and dispatched with a like purpose.

The legislature of Great Britain, in framing the law of 1819, appears to have adopted as its model the law which had been passed by the Congress of the United States in the preceding year. The British act is, however, as regards the matters now in question, more stringent, rigorous, and comprehensive than that of the United States.

In regard to the fitting out of vessels for belligerent purposes, the section of the act of the United States which defines the offense is as follows:

SEC. 3. And be it further enacted, That if any person shall, within the limits of the United States, fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed, or shall knowingly be concerned in the furnishing, fitting out, or arming of any ship or vessel with intent that such ship or vessel shall be employed in the service of any foreign prince or state, or of any colony, district, or people, to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people with whom the United States are at peace, or shall issue or deliver a commission within the territory or jurisdiction of the United States, for any ship or vessel, to the intent that she may be employed as aforesaid, every person so offending shall be guilty of a high misdemeanor, and shall be fined not more than $10,000, and imprisoned not more than three years; and every such ship or vessel, with her tackle, apparel, and furniture, together with all materials, arms, ammunition, and stores, which may have been procured for the building and equipment thereof, shall be forfeited; one-half to the use of the informer, and the other half to the use of the United States.

The section of the British act which defines the offense is as follows: VII. And be it further enacted, That if any person within any part of the United Kingdom, or in any part of His Majesty's dominions beyond the seas, shall, without the leave and license of His Majesty for that purpose first had and obtained as aforesaid, equip, furnish, fit out, or arm, or attempt or endeavor to equip, furnish, fit out, or arm, or procure to be equipped, furnished, fitted out, or armed, or shall knowingly aid, assist, or be concerned in the equipping, furnishing, fitting out, or arming of any ship or vessel with intent or in order that such ship or vessel shall be employed in the service of any foreign prince, state, or potentate, or of any foreign colony, province, or part of any province or people, or of any person or persons exercising or assuming to exercise any powers of government in or over any foreign state, colony, province, or part of any province or people, as a transport or store-ship, or with intent to cruise or commit hostilities against any prince, state, or potentate, or against the subjects or citizens of any prince, state, or potentate, or against the persons exercising or assuming to exercise the powers of government in any colony, province, or part of any province or country, or against the inhabitants of any foreign colony, province, or part of any province or country, with whom His Majesty shall not then be at war; or shall, within the United Kingdom or any of His Majesty's dominions, or in any settlement, colony, territory,

island, or place belonging or subject to His Majesty, issue or deliver any commis[30] sion for any ship or * vessel, to the intent that such ship or vessel shall be em

ployed as aforesaid; every such person so offending shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof, upon any information or indictment, be punished by fine and imprisonment, or either of them, at the discretion of the court in which such offender shall be convicted; and every such ship or vessel, with the tackle, apparel, and furniture, together with all the materials, arms, ammunition, and stores which may belong to or be on board of any such ship or vessel, shall be forfeited; and it shall be lawful for any officer of His Majesty's customs or excise, or any officer of His Majesty's navy, who is by law empowered to make seizures for any forfeiture incurred under any of the laws of customs or excise or the laws of trade and navigation, to seize such ships and vessels as aforesaid, and in such places and in such manner in which the officers of His Majesty's customs or excise and the officers of His Majesty's navy are empowered respectively to make seizures under the laws of customs and excise or under the laws of trade and navigation; and that every such ship and vessel, with the tackle, apparel, and furniture, together with all the materials, arms, ammunition, and stores which may belong to or be on board of such ship or vessel, may be prosecuted and condemned in the like manner and in such courts as ships or vessels may be prosecuted and condemned for any breach of the laws made for the protection of the revenues of customs and excise, or of the laws of trade and navigation. The tenth and eleventh sections of the American act (which are commonly referred to as the "bonding clauses") were not introduced into the British act; but, inasmuch as neither of these clauses could have been applied with effect to any of the vessels which sailed from British ports during the war, and the acts of which have given rise to the claims now in question, they may be dismissed from consideration in comparing the two acts for the purposes of this discussion.

During the forty-two years which elapsed between the passing of the act of 1819 and the year 1862, only one case founded on an alleged violation of that act appears to have been brought to trial before a court. This was a criminal prosecution on a charge of having fitted out in England in the year 1849, during a civil war in the Kingdom of the two Sicilies, a ship intended for the naval service of persons in arms against the government of that Kingdom.

It results from the foregoing statements that the law of Great Britain, as it existed at the time of the civil war in the United States, was such as in the exercise of due foresight might reasonably be deemed adequate for enabling the British government to perform its obligations as a neutral government. It was modeled upon the law of the United States, which had long existed and had frequently been brought under consideration in the courts of that country; it equalled that law, and even surpassed it in stringency; and offenses against it (if any there were) had been so rare as to have left hardly any trace in the judicial records of Great Britain.

The functionaries to whom the power of seizing vessels for contraventions of the foreign enlistment act was committed by law, were the officers of the customs stationed at the several ports of the United Kingdom. These officers are under the direction of the commissioners of customs resident in London, who are themselves under the general superintend ence and control of the lords commissioners of the treasury or finance department of Her Majesty's government.

The police or peace-officers charged with the prevention and detection of crimes and offenses in general within the United Kingdom are under the control of the local authorities in the several counties and boroughs under the general supervision of the secretary of state for the home department.

The official advisers of the government on questions of law are the attorney-general, the solicitor-general, and the Queen's advocate. To these functionaries (whom it is usual to designate collectively as the "law-officers of the Crown ") the government refers for advice on such questions of law as may arise in the administration of public affairs, and it guides itself by their advice in dealing with such questions.

To the foregoing statement respecting the law of Great Britain so far as it specifically relates to the matters now in question, it is proper to add that, according to the general principles of the constitutional law of the Kingdom

1. The Executive cannot deprive any person, even temporarily, of the possession or enjoyment of property, nor subject him to bodily restraint, unless by virtue and in exercise of a power created and conferred on the Executive by law.

2. No person can be visited with a forfeiture of property, nor subjected to any penalty, unless for breach of a law, nor unless such breach can be proved to the satisfaction of a competent legal tribunal, by testimony given on oath in open court, subject to the rules of procedure established here for the due administration of justice. Every witness is liable to be cross-examined by the accused party or his advocate.

3. No person can be compelled to answer a question put to him in a court of law if the question is such that, by answering it, he would incur the risk of a penalty or of a prosecution before a criminal tribunal. Statements on hearsay are not admissible as evidence.

[31] * These general principles apply equally, whether the object sought to be attained be the prevention or punishment of an injury to the state, or to any citizen of the state, or to any other person or persons whomsoever.

It may be further observed that, during the whole period to which the questions submitted to the arbitrators relate, every case of alleged infringement of the British foreign enlistment act brought to trial within the United Kingdom was required to be proved to the satisfaction of a jury.

EFFECT OF THE BLOCKADE.

After these observations on the nature, extent, and limitations of the powers of prevention which by the laws and constitution of Great Britain were vested in Her Majesty's government, it will be convenient to state the circumstances in the midst of which the government was called upon to exercise those powers during the war.

It has been mentioned above that one of the first acts of the Government of the United States, after the outbreak of the war, was to set on foot a general blockade of the ports, harbors, and sea-coasts of the Confederate States. These States being hemmed in to the landward on

every side, except on the remote southern frontier of Texas, by States which remained faithful to the Union, it was designed by this blockade to cut them off entirely from all traffic and intercourse with neutral countries, especially those from which the people of the South had been accustomed to draw their supplies of manufactured goods, and to which they had been wont to export vast quantities of raw produce. It was not only a commercial blockade on a prodigious scale, it was much more; it was a blockade which, so far as it was successful, shut up and isolated a population of many millions, inhabiting a vast territory and accustomed to export and import largely, from all external commerce whatsoever. At the same time the blockade itself was for a long time very imperfectly maintained, the Navy of the United States being quite inadequate for the purpose, and needing to be supplemented by vessels of all kinds hastily procured, and the fleet thus composed being distributed along an immense coast-line. These facts are notorious.

It is evident that a blockade of this character offered extraordinary inducements, not only to the people of the Confederate States themselves, but to traders in Europe, to use every effort in order to elude it wher ever an opening could be discovered. Accordingly, in the year 1862, an active traffic began to be carried on with some of the blockaded ports; and for the purposes of this traffic it was found profitable to procure or construct vessels of a peculiar class, specially adapted for speed and for protection against the fire of blockading squadrons, and differing in various ways, externally and internally, from ships employed in ordinary trade. Recourse was had, for this purpose, to the ports and buildingyards of Great Britain, which are accustomed to supply shipping to purchasers of all countries, and are the principal seat of this kind of industry.

Her Majesty's government, though aware that the blockade was for a considerable time not completely effective, and though frequently urged to disregard it, both by the Confederate States and by persons desirous of trading with them, refused to do so, and recognized it from first to last. British subjects who attempted to trade with the blockaded ports were warned by Her Majesty's proclamation (issued at the commencement of the war) that they would incur the risk of the capture and confiscation of their property, and that against that risk their government would not protect them. On the other hand, the government neither did nor could-forcibly or by process of law-prohibit its subjects, or persons within its dominions, from engaging in such trade, or from selling or constructing or purchasing vessels adapted for that purpose. Such a course, indeed, would have been not only a departure from the ordinary practice and usage of neutral nations, but in conflict with those considerations of general expediency on which the rules of international law are founded. The right of blockade is a belligerent right, and the enforcement of it belongs to the belligerent, and not to neutral powers. That blockades, to be binding, must be made effective by the blockading power, is a settled and salutary rule; and this is indeed the sole protection of neutrals against an undue and extravagant extension of the right of blockade. It follows, of necessity, that to the exertions of the blockading power, and to those alone, the task of making them effective must be left.

REPRESENTATIONS OF MR. ADAMS.

At all the principal sea-ports of Great Britain the United States maintained consuls or consular officers. It was the duty of these

[32] officials, in their respective localities, to *keep a watchful eye on whatever might tend to endanger the security or interests of the United States; to use the utmost diligence in informing themselves of any actual or contemplated violations of law which might prove injuri ous to those interests; to communicate their information to Mr. Adams, the minister of the United States in London, and to act on such instructions as they might receive from him in matters within the range of their functions. And it was the duty of Mr. Adams, in all cases which, in his judgment, demanded action or inquiry on the part of the govern ment of Great Britain, to lay before that government facts sufficient to call for and justify such action or inquiry. In the course of the years 1861, 1862, 1863, 1864, and 1865 many representations were addressed by Mr. Adams to Her Majesty's government respecting vessels which he believed to be either actually employed in carrying on trade with blockaded ports in articles contraband of war or other things, or to be preparing for such employment; and also with respect to other vessels, which he believed to be intended to be used as privateers or commissioned ships of the Confederate States in cruising and carrying on war against the United States. To complaints of traffic carried on with blockaded ports, or in articles contraband of war, it was answered, on the part of Her Majesty's government, that these were enterprises which Her Majesty's government could not undertake to prevent, and the repression of which belonged to the United States as a belligerent power. Allegations, on the other hand, that vessels were being prepared for cruising or carrying on war were immediately referred to the proper officers of the gov ernment at the several localities for careful investigation and inquiry. If, on such investigation, it appeared by sufficient prima facie evidence that any illegal act was being or had been committed, the vessels were forthwith seized, and proceedings instituted according to law; if not, the result was at once communicated to Mr. Adams, and directions were given to the local authorities to watch closely the vessels as to which his suspicions had been aroused.

THE BERMUDA.

The first of these cases was that of the steamship Bermuda. On the 15th August, 1861, Earl Russell received from Mr. Adams the following note: 1

Mr. Adams to Earl Russell.

LEGATION OF THE UNITED STATES,
London, August 15, 1861.

MY LORD: From information furnished from sources which appear to me entitled to credit, I feel it my duty to apprise Her Majesty's government that a violation of the act prohibiting the fitting out of vessels for warlike purposes is on the point of being committed in one of the ports of Great Britain, whereby an armed steamer is believed to be about to be dispatched with the view of making war against the people of the United States.

It is stated to me that a new screw-steamer, called the Bermuda, ostensibly owned by the commercial house of Fraser, Trenholm & Co., of Liverpool, well known to consist in part of Americans in sympathy with the insurgents in the United States, is now lying at West Hartlepool, ready for sea. She is stated to carry English colors, but to be commanded by a Frenchman. She is two-masted, brig-rigged, lower part of funnel black and upper part red, black hull, with a narrow red stripe round the molding level with the deck, no poop, wheel-house painted white, six white boats, slung in iron davits. She has neither figure-head nor bow-sprit. Her bottom is painted pink up to the water-line.

This steamer is armed with four guns, and she has been for some time taking in

1Appendix, vol. ii, p. 133.