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which are prohibited by the statute, and they indicate the punishments which may be inflicted upon them when convicted; fourthly, they exempt certain parts of the Empire from the operation of the stat

ute.

[110] *This Tribunal need take no notice of the penal portions of the statute, which affect only the relations between the State and those who owe allegiance to its laws by reason of residence within its territory. The United States will therefore confine themselves to at tempting to deduce from the statute the definitions of the principles, and the duties, which are there recognized as obligatory on the nation in its relations with other Powers. The adjudicated cases often disregard the distinction between the duties of a neutral, however defined, and the proceedings in its courts against persons charged as criminals for alleged violations of its laws for the preservation of neutrality. Even some of the best publicists, in referring to this class of decisions, have not always remembered that, while in the former we have only to do with principles of public law, in the latter we are dealing with the evidence necessary for the conviction of an offender. Bearing this distinction in mind, the Tribunal of Arbitration may be able to reconcile many apparently conflicting authorities, and arrive at just conclusions. The acts which, if committed within the territory of the neutral, are to be regarded as violations of its international duties, are enumerated in the second, fifth, sixth, seventh, and eighth sections of the statute. [111] *Translating this statutory language into the expressions commonly employed by publicists and writers on International Law, this statute recognizes the following as acts which ought to be prevented within neutral territory during time of war.

1. The recruitment of subjects or citizens of the neutral, to be employed in the military or naval service of a foreign Government or of persons assuming to exercise the powers of government over any part of foreign territory; or the acceptance of a commission, warrant, or appointment for such service by such persons; or the enlisting or agreeing to enlist in such service; the act in each case being done without the leave or license of the Sovereign.

2. The receiving on board a vessel, for the purpose of transporting from a neutral port, persons who may have been so recruited or commissioned; or the transporting such persons from a neutral port. thority is given to seize the vessels violating these provisions.

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3. The equipping, furnishing, fitting out, or aiming a vessel, with intent or in order that it may be employed in the service of such foreign Government, or of persons assuming to exercise the powers of gov

ernment over any part of a foreign country, as a transport or [112] store-ship, or to *cruise or carry on war against a power with

which the neutral is at peace; or the delivering a commission for such vessel, the act in each case being done without the leave or license of the Sovereign.

4. The augmenting the warlike force of such a vessel of war by adding to the number of guns, by changing those on board for other guns, or by the addition of any equipment of war, if such vessel at the time of its arrival in the dominions of the neutral was a vessel of war in the service of such foreign Government, or of such persons, the act being done without the leave or license of the Sovereign.2

Vol. IV, page 86.

It may interest the members of the Tribunal of Arbitration to see in this connection an abstract of the acts which are made penal by the United States Neutrality Law of 1818. The law itself will be found in Vol. IV, pages 90-92. The abstract is

S. Ex. 31-4

Royal Commission

Listment Act of 1819.

*During the insurrection, as will be seen hereafter, this act [113] was, by the construction of the English courts, to revise Foreign En stripped of its effective power. The United States repeatedly and in vain invited Her Majesty's Government to amend it. Although these calls proved abortive during the contest with the South, the appalling magnitude of the injury which had been inflicted by British-built and British-manned cruisers upon the commerce and industry of a nation with which Great Britain was at peace appears to have awakened its senses, and to have impelled it to take some steps toward a change. In January, 1867, the Queen's Commission was issued to some of the most eminent of the British lawyers and judges, authorizing them to inquire into and consider the character, working, and effect of the laws of the Realm, available for the *enforcement of neutrality, during the existence of hostilities be- [114] taken from President Grant's Proclamation of Neutrality in the late Franco-German war, dated October 8, 1870.

"By the act passed on the 20th day of April, A. D. 1818, commonly known as the 'Neutrality Law,' the following acts are forbidden to be done, under severe penalties, within the territory and jurisdiction. of the United States, to wit:

"1. Accepting and exercising a commission to serve either of the said belligerents by land or by sea against the other belligerent.

"2. Enlisting or entering into the service of either of the said belligerents as a soldier, or as a marine or seaman on board of any vessel of war, letter of marque, or privateer.

"3. Hiring or retaining another person to enlist or enter himself in the service of either of the said belligerents as a soldier, or as a marine or seaman on board of any vessel of war, letter of marque, or privateer.

"4. Hiring another person to go beyond the limits or jurisdiction of the United States with intent to be enlisted as aforesaid.

"5. Hiring another person to go beyond the limits of the United States with the intent to be entered into service as aforesaid.

"6. Retaining another person to go beyond the limits of the United States with intent to be enlisted as aforesaid.

"7. Retaining another person to go beyond the limits of the United States with intent to be entered into service as aforesaid. (But the said act is not to be construed to extend to a citizen or subject of either belligerent who, being transiently within the United States, shall, on board of any vessel of war, which, at the time of its arrival within the United States, was fitted and equipped as such vessel of war, enlist, or enter himself, or hire, or retain another subject or citizen of the same belligerent, who is transiently within the United States, to enlist, or enter himself to serve such belligerent on board such vessel of war, if the United States shall then be at peace with such belligerent.)

"8. Fitting out and arming, or attempting to fit out and arm, or procuring to be fitted out and armed, or knowingly being 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 either of the said belligerents.

"9. Issuing or delivering 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.

"10. Increasing or augmenting, or procuring to be increased or augmented, or knowingly being concerned in increasing er augmenting, the force of any ship of war, cruiser, or other armed vessel, which at the time of her arrival within the United States was a ship of war, cruiser, or armed vessel in the service of either of the said belligerents, or belonging to the subjects or citizens of either, by adding to the mumber of guns of such vessels, or by changing those on board of her for guns of a larger caliber, or by the addition thereto of any equipment solely applicable to war.

"1. Beginning or setting on foot or providing or preparing the means for any military expedition or enterprise to be carried on from the territory or jurisdiction of the United States against the territories or dominions of either of the said belligerents." The Tribunal of Arbitration will also observe that the most important part of the American act is omitted in the British act, namely, the power conferred by the eighth section on the Executive to take possession of and detain a ship without judicial process, and to use the military and naval forces of the Government for that purpose, if necessary. Earl Russell is understood to have determined that the United States should, in no event, have the benefit of such a summary proceeding, or of any remedy that would take away the trial by jury.-Speeches and Dispatches of Earl Russell, Vol. II, page 266.

tween other States with whom Great Britain might be at peace, and to inquire and report whether any and what changes ought to be made in such laws for the purpose of giving to them increased efficiency, and bringing them into full conformity with international obligations. That Commission held twenty-four sittings, and finally reported that the old Foreign Enlistment Act of 1819 was capable of Report of tha. improvement, and might be made more efficient by the Commission. enactment of several provisions set forth in the report.2

Among other things the Commission recommended that it be [115] made a statutory offense to "fit *out, arm, dispatch or cause to be dispatched, any ship, with intent or knowledge that the same shall or will be employed in the military or naval service of any foreign Power in any war then being waged by such Power against the subjects or property of any foreign belligerent Power with whom her Majesty shall not then be at war." It was also proposed to make it a statutory offense to "build or equip any ship with the intent that the same shall, after being fitted out and armed, either within or beyond Her Majesty's Dominions, be employed as aforesaid ;" and it was proposed that the Executive should be armed with summary powers similar to those conferred upon the President of the United States by the eighth section of the act of 1818. It was further proposed to enact that "in time of war no vessel employed in the military or naval service of any belligerent, which shall have been built, equipped, fitted out, armed, or dispatched contrary to the enactment, should be admitted to any port of Her Majesty's Dominions."5

The Tribunal of Arbitration will not fail to observe that these recommendations were made by a board composed of the most eminent judges,

jurists, publicists, and statesmen of the Empire, who had been in [116] public life and had participated *in the direction of affairs in Great

Britain during the whole period of the Southern rebellion; and that they were made under a commission which authorized these distinguished gentlemen to consider and report what changes ought be made in the laws of the Kingdom, for the purpose of giving to them increased efficiency, and bringing them into full conformity with the international obligations of England. The Tribunal of Arbitration will search the whole of that report, and of its various appendices, in vain, to find any indication that that distinguished body imagined, or thought, or believed that the measures which they recommended were not "in full conformity with international obligations." On the contrary, the Commissioners say that, so far as they can see, the adoption of the recommendations will bring the municipal law into full conformity with the international obligations. Viewing their acts in the light of their powers and of their instructions, the United States feel themselves justified in asking the Tribunal to assume that that eminent body regarded the acts which they proposed to prevent by legislation, as forbidden by International Law.

listment Act of 1870.

The report of the Commissioners was made in 1868, but was not acted upon until after the breaking out of the late war between The Foreign EnGermany and France. On the 9th of August, 1870, [117] Parliament *passed "An act to regulate the conduct of Her Majesty's subjects during the existence of hostilities between foreign States with which Her Majesty is at peace." This act, which may be found

1 Vol. IV, page 79.
4 Vol. IV, page 81.

2 Vol. IV, page 80.
Vol. IV, page 82.

3 Vol. IV, pages 80, 81.
6 Vol. IV, page 82.

Judicial construc

in Volume VII,1 embodies the recommendations of the commissioners which are cited above, except that which excludes a ship which has been illegally built or armed, &c., &c., from Her Majesty's ports. Soon after the enactment of this statute, a vessel called the "International," was proceeded against for an alleged violation of tion of that act. its provisions. The case came before Sir Robert J. Philli more, one of Her Majesty's Commissioners who signed the report in 1868. In rendering his decision on the 17th of January, 1871, he said: "This statute, passed during the last session, under which the authority of this court is now for the first time eved, is, in my judgment, very important and very valuable; strengthening the hands of Her Majesty's Government, and enabling them to fulfill more easily than heretofore that particular class of international obligations which may arise out of the conduct of Her Majesty's subjects toward belligerent Foreign States, with whom Her Majesty is at peace." 2

*These eminent commissioners and this distinguished jurist [118] have chosen their words with the precision which might have been expected of them. They declare that, in the execution of the commission, they have only sought to bring the law of England into harmony with the law of nations. Their functions ceased when they recommended certain changes with that object in view. Parliament then took up the work and adopted their suggestions. Then, as if to prevent all misapprehension, one of the commissioners, acting as a judge, held that the act of 1870 is intended to bring the law of the realm into harmony with the international duties of the Sovereign. The United States confidently submit that the new provisions, inserted in the act of 1870, were intended, at least as against the British Government, as a re-enactment of the law of mon law of England. nations, as understood by the United States to be applicable to the cases of the Alabama, and other ships of war constructed in England for the use of the insurgents.

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International law is a part of the com

They conceive that Great Britain is committed to the doctrines therein stated, not merely by the articles of International Law expressed in its statutes, but also by the long-settled Common Law of England confirmed by acts of Parliament.

*The act of 7 Anne, ch. 12, enacted in consequence of the viola- [119] tion of the law of nations by the arrest for debt of the Ambassador of the Czar, Peter the Great, in London, is prominent in the history of the legislation of Great Britain. 3

Lord Mansfield, commenting on this act in the case of Triquet rs. Buth, 3 Burrow's Reports, p. 148, says that this act was but declaratory. All that is new in this act is the clause which gives a summary jurisdiction for the punishment of the infraction of the law. He further remarks that the Ambassador, who had been arrested, could have been discharged on motion. This act of Parliament was passed as an apology from the nation. It was sent to the Czar, finely illuminated, by an Ambassador Extraordinary, who made the national excuses in an oration. "The act was not occasioned by any doubt whether the law of nations, particularly the part relative to public ministers, was not part of the law of England, and not intended to vary an iota from it." Lord Mansfield further says, in reference to the case of Brevot vs. Barbot, that

1 Vol. VII, page 1.

2 London Times, January 18, 1871. See also Admiralty and Ecclesiastical Reports, Vol. 3, page 332. See also Report of the Debate on the Foreign Enlistment Act in the House of Commons, in the London Times of August 2, 1870.

3 See Phillimore's International Law, vol. 2, ch. 8, section 194.

Lord Talbot declared "that the law of nations, in its full extent, was part of the law of England;" and adds, "I remember, too, Lord Hard

wick declared his opinion to the same effect, and denying that Lord [120] Chief Justice Holt ever had any doubt as to the law of nations being part of the law of England, upon the occasion of the arrest of the Russian Ambassador."1

To the same effect is the remark of Lord Tenterden, when he says "that the act of Anne is only declaratory of the common law. It must, therefore, be construed according to the common law, of which the law of nations must be deemed a part."2

Blackstone states the doctrine in general terms as follows: "The law of nations is a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world, in order to decide all disputes, to regulate all ceremonies and civilities, and to insure the observance of justice and good faith, in that intercourse which must frequently occur between two or more independent States, and the individuals belonging to each.

*

"In arbitrary States this law, wherever it contradicts, or is not provided for by the municipal law of the country, is enforced by the [121] Royal Power; but since in England no Royal Power *can intro

duce a new law or suspend the execution of the old, therefore the law of nations (whenever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the common law of the land. And those acts of parliament which have from time to time been made to enforce this universal law, or to facilitate the execution of its decisions, are not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the Kingdom; without which it must cease to be a part of the civilized world."3

In the presence of these authorities it cannot be doubted that the law of nations enters integrally into the common law of England, and that any enactment by Parliament on this point derives force only from its conformity with the law of nations, having no virtue beyond that, except in so far as such enactment may afford means for the better enforcement of that law within the realm of England.

That eminent judge and jurist, Lord Stowell, even goes so far as to say that, while an act of Parliament can affirm the law of nations, it cannot contradict it or disaffirm it to any effect as respects foreign Governments.4

[122] *Lord Stowell's position is in perfect accordance with the ob

servation of Lord Mansfield, in another case, viz: Heathfield vs. Chilton, that, "The privileges of public ministers and their retinue depend upon the law of nations, which is part of the common law of England. And the act of Parliament of 7 Anne, ch. 12, did not intend to alter, nor can alter the law of nations."5

The next act of the British Government to which the United States invite the attention of the Tribunal, as showing to some ex- Duties recognized tent that Government's sense of its duties toward the by the Queen's Proc United States, is the Proclamation of Neutrality of May 13, 1861, already alluded to.

See further 1 Black. Com., pp. 43, 354; 1 Woodson's Lectures, p. 31.
Novillo rs. Toogood, 1 Barnwell and Creswell's Reports, 562.

lamation of

Neu

Blackstone's Com., vol. 4, ch. 5. See also Lord Lyndhurst's opinion, ante, page 61. The Louis, Dodson's Admiralty Reports, vol. 2, p. 210.

5 Heathfield vs. Chilton, 4 Burrows, p. 2016. This observation of Lord Mansfield is ited and adopted by Phillimore, vol. 3, p. 541.

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