PART III.

THE DUTIES WHICH GREAT BRITAIN, AS A
NEUTRAL, SHOULD HAVE OBSERVED TO-
WARD THE UNITED STATES.

The Queen's Proclamation a re

cognition of obli

gation under the

The second branch of the subject, in the order in which the United States desire to present it to the Tribunal of Arbitration, involves the consid- law of nations. eration of the duties which Great Britain, as a neutral, should have observed toward the United States during the contest. However inconsiderately and precipitately issued, the Proclamation of Neutrality recognized the obligation, under the law of nations, to undertake the performance of those duties, and it becomes important to have a correct understanding of their character.

Great Britain has recognized its rious ways.

In attempting to define these duties it is natural, first, to endeavor to ascertain whether Great obligations in vaBritain itself has, by legislative or official acts, recognized any such obligations; and next, to inquire whether the canons of international law, as expounded by publicists of authority, demand of a neutral the observance of any other or broader rules than have been so recognized. The United States will pursue the examination in this order.

Recognized by the Foreign En

They find, first, an evidence of Great Britain's conception of its duties as a neutral in the Foreign listment Act of

1819.

Municipal laws

designed to aid a

performance of in

Enlistment Act which was enacted in 1819, and was in force during the whole of the Southern rebellion.

It must be borne in mind, when considering the government in municipal laws of Great Britain, that, whether ternational duties. effective or deficient, they are but machinery to enable the Government to perform the international duties which they recognize, or which may be incumbent upon it from its position in the family of nations. The obligation of a neutral state to prevent the violation of the neutrality of its soil is independent of all interior or local law. The municipal law may and ought to recognize that obligation; but it can neither create nor destroy it, for it is an obligation resulting directly from International Law, which forbids the use of neutral territory for hostile purpose.1

History of Foreign Enlistment Act of 1819.

The local law, indeed, may justly be regarded as evidence, as far as it goes, of the nation's estimate of its international duties; but it is not to be taken as the limit of those obligations in the eye of the law of nations.

It is said by Lord Tenterden, the distinguished Secretary of the British High Commissioners, in his memorandum attached to the report of Her Majesty's Commissioners upon the neutrality law,3

Ortolan, Diplomatie de la mer, Vol. 2, page 215.

2 Vol. IV, page 79.

3

Vol. IV, page 93, Appendix No. 3, by Mr. Abbott, now Lord Ten

terden.

that the neutrality law of the United States formed

History of Foreign Enlistment

the foundation of the neutrality law of England.1 Act of 1819.
"The act for the amendment of the neutrality laws,"
he says, "was introduced by Mr. Canning on the
10th of June, 1819, in an eloquent speech, in the
course of which he said, 'It surely could not be
forgotten that in 1793 this country complained of
various breaches of neutrality (though much in-
ferior in degree to those now under consideration)
committed on the part of subjects of the United
States of America. What was the conduct of
that nation in consequence? Did it resent the
complaint as an infringement of its independence?
Did it refuse to take such steps as would insure
the immediate observance of neutrality? Neither.
In 1794, immediately after the application from
the British Government, the Legislature of the
United States passed an act prohibiting, under
heavy penalties, the engagement of American citi-
zens in the armies of any belligerent Power. Was
that the only instance of the kind? It was but
last year that the United States passed an act by
which the act of 1794 was confirmed in every
respect, again prohibiting the engagement of their
citizens in the service of any foreign Power, and
pointing distinctly to the service of Spain or the
South American Provinces."2
It appears from the

Great Britain

bound to perform

nized by that act.

whole tenor of the debate which preceded the passage of the act that its sole purpose was to enable the Executive to perform with fidelity the duties toward neutrals which were recognized as imposed upon the Government by the Law of Nations.

The United States assume that it will be conthe duties recog- ceded that Great Britain was bound to perform all the duties of a neutral toward the United States which are indicated in this statute. If this obligation should be denied, the United States beg to refer the Tribunal of Arbitration to the declaration of Earl Russell in his communication to Mr. Adams of August 30, 1865, where he1 "lays down with confidence the following proposition:" "That the Foreign Enlistment Act is intended in aid of the duties * * of a neutral nation." They also refer to Lord Palmerston's speech in the House of Commons, July 23, 1863,3 in which he says: "The American Government have a distinct right to expect that a neutral will enforce its municipal law, if it be in their favor."

Indeed, Great Britain is fully committed to this principle in its dealings with other Powers. Thus, during the Crimean war, Her Majesty's Government, feeling aggrieved at the acts of the Prussian Government in tolerating the furnishing of arms and other contraband of war to Russia, were 1 Vol. III, page 549. 2 Vol. III, page 550. 3 Vol. V, page 695.