It is not claimed that a belligerent has the right, by the custom of nations, to require a neutral to enforce in its favor an executive Procla mation of the neutral, addressed to its own citizens or subjects; but it is maintained that, as between Great Britain and the United States, there is a binding precedent for such a request to Great Britain. In 1793, during General Washington's administration, the representative of Great Britain in the United States pointed out to Mr. Jefferson, who was then Secretary of State, acts which were deemed by Her Britannic Majesty's Government *to be "breaches of neutrality," [123] done "in contravention of the President's Proclamation" of Neutrality, and he invited the United States to take steps for the repression of such acts, and for the restoration of captured prizes. It appears that the United States complied with these requests.1

Relying, therefore, upon this precedent, established against Great Britain, rather than upon a right under the laws of nations, which can be asserted or maintained against the United States or against other nations, the United States invite the attention of the Tribunal to the fact that two principles, in addition to those already deduced from the Foreign Enlistment Act of 1819, appear to be conceded by the Procla mation of May 13, 1861:

1. That it is the duty of a neutral to observe strict neutrality as to both belligerents during hostilities.

trality.

Neutrality is defined by Phillimore "to consist in two principal circumDefinition of neu- stances: 1. Entire abstinence from any participation in the war; 2. Impartiality of conduct toward both belligerents." "This abstinence and this impartiality must be combined in the character of a bona fide neutral."

Bluntschli defines it thus: La neutralité est la non-participation à la guerre. Lorsque l'état neutre soutient un des belligérants, il prend *part à la guerre, en faveur de celui qu'il soutient, et dès [124] lors il cesse d'être neutre. L'adversaire est autorisé à voir dans cette participation un acte d'hostilité. Et cela n'est pas seulement vrai quand l'état neutre livre lui-même des troupes on des vaissoeux des guerre, mais aussi lorsqu'il prête à un des belligérants un appui médiat en permettant, tandis qu'il pourrait l'empêcher, que, de son territoire neutre, on envoie des troupes ou des navires de guerre."3

Hautefeuille says: "Cet état nouveau impose aux neutres des devoirs particuliers: ils doivent s'abstenir complètement de toute acte d'im mixion aux hostilités et garder une stricte impartialité envers les deux belligérants. * L'impartialité consisté à traiter les deux belligérants de la même manière et avec une parfaite égalité dans tout ce qui concerne les relations d'état à état.”4

*

Lord Stowell says: "The high privileges of a neutral are forfeited by the abandonment of that perfect indifference between the contending parties, in which the essence of neutrality consists."

Calvo collects or refers to the definitions given by the various writers on International Law, and expresses a preference for Hubner's: "La mas aceptable es la de Hubner, por la claridad y precision [125] con que fija, no solo la situacion de las naciones pacificas, sino la extension que tiene sobre ellas el status belli."

Vol. IV, pages 94-102.

23 Phillimore, Ch. IX.

3 Opinion impartiale sur la question de l'Alabama. Berlin, 1870, page 22. Nécessité d'une loi maritime pour régler les rapports des neutres est des belligérauts. Paris, 1862, page 7.

The Eliza Ann, (1 Dodson's Reports, 244.)

6 Calvo Derecho Internacional. tom. 2, page 151, § 6C3.

2. The proclamation also distinctly recognizes the principle that the duties of a neutral in time of war do not grow out of, and are not dependent upon, municipal laws. Offenders against the provisions of the act are therein expressly forewarned that such offenses will be "acts in derogation of their duty as subjects of a neutral sovereign in the said contest, or in violation or contravention of the law of nations in that behalf.

to

The next acts of the British Government, indicating its sense of its duties as a neutral toward the United States, to which the Duties recognized attention of the Tribunal is invited, are the several instruc- by cons Briti h officials dur tions issued during the contest, for the regulation of the ing the insurrection. official conduct of its naval officers and of its colonial authorities toward the belligerents.'

These various instructions state or recognize the following principles and rules:

1. A belligerent may not use the harbors, ports, coasts, and waters of a neutral in aid of its warlike purposes, or as a station or place of resort for any warlike purpose, or for the purpose of obtaining any facilities of warlike equipment.

[126] *2. Vessels of war of the belligerents may be required to depart

from a neutral port within twenty-four hours after entrance, except in case of stress of weather, or requiring provisions or things for the crew, or repairs; in which case they should go to sea as soon as possible after the expiration of the twenty-four hours.

3. The furnishing of supplies to a belligerent vessel of war in a neutral port may be prohibited, except such as may be necessary for the subsistence of a crew, and for their immediate use.

4. A belligerent steam-vessel of war ought not to receive in a neutral port more coal than is necessary to take it to the nearest port of its own country, or to some nearer destination, and should not receive two supplies of coal from ports of the same neutral within less than three months of each other.

The attention of the Tribunal is further invited to the official opinions expressed by the representative of Great Britain in the Correspondence be United States during the administration of President Wash- tween the two Govington upon the duties of a neutral toward a belligerent;

ennenta in 1793,

1794.

and to the acts of the Government of the United States during that administration, preceding, and accompanying, and subsequent to those expressions of opinion; and to the treaty concluded between the United States and Great Britain in 1794.

[127] *The first acts took place in the United States in 1793, a year before the passage of the first American Neutrality Law, when the United States had nothing but the law of nations and the sense of their duties as a neutral to guide them.

The envoy from the new French Republic, M. Genet, arrived at Charleston, in the United States, early in April, 1793, with the purpose of making the ports and waters of the country the base of hostile operations against Great Britain. The steps which he took are fairly referred to by Lord Tenterden in the memorandum already cited.2

The Capital was then at Philadelphia, several hundred miles distant from Charleston, with few regular means of communication between the two towns. The Government of the United States was in its early infancy. Four years only had passed since it was originated, and it had not been tested whether the powers confided to it would prove sufficient

Vol. IV, page 175, et seq.

2 Vol. IV, page 93, et seq.

for an emergency that might arise in its Foreign Relations.. It had neither navy, nor force that could be converted into one, and no army on the sea-coast; and it was obliged to rely upon, and did actually call out, the irregular militia of the States to enforce its orders.

Under the directions of M. Genet, privateers were fitted out, manned, and commissioned, from *Charleston and other ports, [128] before he reached Philadelphia, and prizes were brought in by them. On the 22d of April, 1793, M. Genet not having yet reached Philadelphia, President Washington issued his celebrated proclamation, the first of its kind, in which he declared that "the duty and interest of the United States require that they should, with sincerity and good faith, adopt and pursue a conduct friendly and impartial toward the belligerent Powers;" and he warned all persons against "committing, aiding, or abetting hostilities against any of the said Powers."1

The news of the coming of M. Genet had preceded his arrival at Philadelphia. On the 17th of May, 1793, Mr. Hammond, the then British Minister, made complaint of his acts, and called attention to the fact that privateers were fitting in South Carolina, which he conceived to be "breaches of that neutrality which the United States profess to observe, and direct contraventions of the Proclamation."

He invited the Government to "pursue such measures as to its wisdom may appear the best calculated for repressing such practices in future, and for restoring to their rightful owners any captures which these particular privateers may *attempt to bring into any of the [129] ports of the United States."

Two days before the receipt of that representation, Mr. Jefferson had already complained to the French Minister of these proceedings, and M. Genet, on his arrival, claimed to justify himself by the existing treaties between France and the United States.

Other cases subsequently occurred, in which Mr. Hammond intervened; for an account of which the Tribunal of Arbitration is respectfully referred to Lord Tenterden's memorandum.

The subject of Mr. Hammond's complaints and his demand for the restoration of the captured vessels were under consideration until the 5th of June, 1793, when answers were given simultaneously to M. Genet and to Mr. Hammond.

The former was told that the United States could not tolerate these acts of war within their territories. The latter was told that effectual measures would be taken to prevent a repetition of the acts complained of; but as to restoring the prizes, it could not be done for two reasons: first, because if commissions to the privateers were valid and the captures were legal, the Executive of the United States had no control over them; and if they were illegal the owners had a sufficient *remedy in the national courts; secondly, because the acts com[130] plained of had been done at a remote port, without any privity of the United States, "impossible to have been known, and therefore impossible to have been prevented by the Government."3

It is worthy of note that the owners did resort to the courts, and that prizes taken by these privateers were restored by judicial process.

4

The Government of General Washington determined, however, as it had been informed of these attempts at violating the sovereignty of the nation, that it was the duty of the United States not only to repress them in future, but to restore prizes that might be captured by vessels 1 Vol. IV, page 94. 3 Vol. IV, page 97. 4 Dana's Wheaton, section 439, note 215, page 536. This note, which contains an exhaustive review of the American policy, may be found in Vol. VII, page 11.

2 Vol. IV, page 95.

thus illegally fitted out, manned, equipped, or commissioned within the waters of the United States; or, if unable to restore them, then to make compensation for them.

The reasons for this course are stated in a letter from Mr. Jefferson to Mr. Hammond, dated the 5th of September, 1793.1

The United States Government also, on the 4th of August, 1793, issued instructions to collectors of the customs, which were in[131] tended to enforce the President's Proclamation of April 22. We have the authority of Lord Tenterden for saying that the result of the publication of those instructions was, that the system of privateering was, generally speaking, suppressed. 3

3

From this examination, it appears that a well conceived and extended system of violating the neutrality of the United States, when they were weak and the powers confided to their Executive were untried, was put in operation in April by the representative of one of the powerful nations of Europe, and was suppressed before August without legislation; and also that the United States undertook to make compensation for the injuries resulting from violations that had taken place where they had failed to exet all the means in their power to prevent them.

It was subsequently agreed between the two Governments that in cases where restitution of the prizes should be impossible, The Treaty of Nov the amount of the losses should be ascertained by a method 19, 1794. similar to that provided by the Treaty of Washington, and that a money payment should be made by the United States to Great Britain

in lieu of restitution. The examination of these claims extended [132] *over a period of some years, and the amounts of the ascertained

commissioners ap

losses were eventually paid by the United States to Great Britain. In the case of the "Jamaica," before the commission, under the 7th article of the treaty of 1794, the capturing vessel was al- Construction of leged to have been armed in the United States, but the that Treats by the prize, (the Jamaica,) with her cargo, was burned by the cap- pointed under it. tors, and never brought within the jurisdiction of the United States. Upon this bare case, without any allegation of permission or neglect by the Government of the United States as to the arming of the French cruiser, the advocate for the claimants contended that the law of nations obliged the United States to make compensation. The claim was rejected; "the board [one gentleman only dissenting] were of opinion that the case was not within the stipulation of the article under which the commissioners act.”

A rehearing being granted and counsel heard, Mr. Gore delivered the opinion sustaining the original determination. After reviewing British precedents cited by the counsel for the claimants, as supporting his view of international law, Mr. Gore says:

The counsel for the claimant seemed to suppose that the obligation to compensate arose from the circumstance of the privateer [133] having been *originally armed in the United States; but as there

is not the smallest evidence to induce a belief that in this or in any other case the Government permitted, or in any degree connived at, such arming, or failed to use all the means in their power to prevent such equip

Vol. IV; page 100. The United States also refer to Mr. Jefferson's letter to Mr. Hammond, of November 14, 1793.

* Vol. IV, page 97.

3 Vol. IV, page 101.

Treaty concluded between the United States and Great Britain, at London, November 19, 1794, commonly known as "Jay's Treaty." See United States Statutes at Large, Vol. VIII, page 116.

ment, there is no ground to support a charge on the fact that the armament originated in their ports."1

All these steps prior to 1794 were taken by the United States under the general rules of International Law, without the aid of a local statute, in order to perform what Mr. Jefferson called "their duty as a neutral nation to prohibit such acts as would injure one of the warring powers." In 1794, however, the Congress of the United States, on the application of Great Britain, passed a statute prohibiting such acts, under heavy penalties. 3

The neutrality laws of United States

of Great Britain.

The general provisions of the United States act of 1818 und at the quest (Which is still in force) are set forth in note 1, on page 114. This act was passed at the request of the Portugese Government. The act of 1838 was enacted on the suggestion of Great Britain. In the year 1837 a formidable rebellion against Great Britain broke out in Canada. Sympathizers with the insurgents begin ning to gather on the northern frontier of the United States, Mr. [134] Fox the British Minister at Washington, "solemnly appealed to the Supreme Government promptly to interpose its sovereign authority for arresting the disorders," and inquired what means it proposed to employ for that purpose. The President immediately addressed a communication to Congress, calling attention to defects in the existing statute, and asking that the Executive might be clothed with adequate power to restrain all persons within the jurisdiction of the United States from the commission of acts of the character complained of. Congress, thereupon, passed the act of 1838. Thus Great Britain once more asked the United States to amend their neutrality laws, in British interest, so as to give more power to the Executive, and the request was complied with.

Case of the bark Maury.

In the year 1855, Great Britain being then at war with Russia, it was supposed by the British Consul, at New York, that a vessel called the Maury, which was being innocently fitted out at New York for the China trade, was intended as a Russian privateer. The British Minister at Washington at once called the attention of Mr. Marcy, the then Secretary of State, to this vessel. The affidavits which he inclosed for the consideration of the Secretary of State fell far, very far short of the evidence which Mr. Adams submitted to [135] Earl Russell in regard to the Liverpool cruisers. The whole foundation which the British Minister furnished for the action of the United States was the "belief" of the Consul, his lawyer, and two police officers, that the vessel was intended for Russian service. This was com municated to the Government of the United States on the 11th of October. Notwithstanding the feebleness of the suspicion, the prosecuting officer of the United States was, on the 12th of October, instructed by telegraph to "prosecute if cause appears," and was at work on the 13th in order to prevent a violation of the sovereignty of the United States to the injury of Great Britain. The proceedings given at length in the accompanying volumes show with what rapidity and zeal the investigation was made, and that the charge was at once proved to be unfounded. In all this correspondence and these precedents, the fol recognized by the lowing principles appear to have been assumed by the two two Governments. Governments:

Principles thus

1. That the belligerent may call upon the neutral to enforce its muni cipal proclamations as well its municipal laws.

12d Vol. Mms. Opinions, Department of State.

2 Mr. Jefferson to M. Genet, June 5, 1793. Jefferson's Works, Vol. III, page 572. 3 Mr. Canning's speech, eited ante, page 107.

4 Vol. IV, pages 53-62.