the authority, or with the concurrence, as the case may be, of the Congress, or of the Senate.

In Great Britain, on the contrary, it appertains to the prerogative power of the Crown to declare war, and to make treaties, either of belligerent alliance or of peace; and howmuchsoever in practice it may be customary for Ministers to communicate with Parliament on these questions, it is not the less true that, constitutionally speaking, the prerogative power resides in the Crown.

17. The affirmative resolution of the British Ministers to call this prerogative power into action for the sole purpose of elevating the rebels of the United States into the dignity of Belligerents, on a level with their own Sovereign, and thus converting piratical cruisers into legitimate cruisers, and the negative resolution of the British Ministers, in refusing to call into play the prerogative of the Crown, in order to give effect to their own professions of neutrality, injurious as even such professions were to the United States, in undertaking to place them and their rebels in the same category of international rights, these two resolutions rendered it possible, as it would not otherwise have been, for the Confederates to fit out cruisers in the ports of Great Britain: whereupon ensues responsibility of Great Britain for acts of the Confederates, in which, by false theory of action and negligence in fact combined, she participated, to the prejudice of the United States.

IV.

MISCELLANEOUS CONSIDERATIONS.

The British Case and Counter-Case are largely occupied with matters, which are secondary, immaterial, not to say totally irrelevant, in the judgment of the Counsel of the United States, but which, being seriously presented by the British Government, seem to require attention.

I. Much is said on the subject of the British Foreign Enlistment Act of 1819, of its assumed adequacy, of its value relatively to the similar acts of the United States, and of the comparative legislation, in this respect, of Great Britain, and of other European States.

All such considerations would seem to be foreign to the subject, and beneath its dignity, when it is considered that laws of this nature, howmuchsoever they may be locally convenient, yet do not serve to determine the duties of neutrality in the international relation of Governments.

It is quite vain for the British Government to assert the sufficiency of the Foreign Enlistment Act of 1819. Its practical inefficiency was glaringly apparent on the face of all the relative diplomatic correspondence between Great Britain and the United States. The same insufficiency manifested itself in the legal proceedings in the case of the Alexandra, in such degree as to throw contempt and ridicule upon the whole Act. Quibbles of verbal criticism, fit only for insignificant things of mere domestic concernment, pervaded the opinions of the great judges of England, in a matter closely affecting her international honor and foreign peace. It needs only to read the report of this trial to see how absurd is the hypothesis of the English Case and Counter-Case, in arguing, that any question of peace and war between Great Britain and other Governments is to be determined according to the provisions of that Act, and that in such a transcendent question the British Ministers are under the necessity of floundering along in the flat morass of the meaningless verbosity and confused circumlocution of any Act of Parliament. Well may Sir Robert Phillimore speak of "its loose phraseology and disjointed sentences." Well might Baron Channell say of the language of the Act, "more imperfect or faulty wording I can scarcely conceive." We cannot understand by what strange perversion of reason it is that the British Government continues to maintain that its Ministers were compelled to drift into the condition of foreign war rather than break free from the entanglement of the cobweb meshes of that Act.

But, in fact, its inefficiency has been unequivocally

International Law, vol. 1, p. 466.

Documents annexed to American Case, vol. V, p. 440.

admitted by the enactment, on the part of Great Britain, of the Foreign Enlistment Act of 1870, and by the official enquiry which preceded the passage of that Act.

II. With similar sacrifice of the principal to the incident, and of the large to the minute, the British Government insists that the British Act of 1819 is equal in efficiency to the American Act of 1818. It is strange enough that the British Government should make this suggestion in the presence of the documents contained in the appendix to the British Case, in which appears the report of the British Minister at Washington, Sir Frederick Bruce, on the subject of the Foreign Enlistment Act of the United States, pointing out in detail the plain superiority of the American to the British Act. 1

The great difference between the two consists in the cardinal fact that the provisions of the British Act are merely punitive, and to be carried into effect only by judicial instrumentality: whereas the American Act is preventive, calls for Executive action, and places in the hands of the President of the United States the entire military and naval force of the Government, to be employed by him, in his discretion, for the prevention of foreign equipments and foreign enlistments in the United States.

Thus deficient, the British Act was valueless, except as, if occasion should arise, to make it serve as a pretext to cover, in diplomatic communication with other Governments, indifferent, unfriendly or hostile animus on the part of some British Minister. In other respects, however, that is to say, in the narrow limits of its own theory of municipal legislation, the British Act is utterly inferior to

1 Appendix to the British Case, vol. III, p. 67,

the American Act. Sir Frederick Bruce clearly shows the numerous traits of superiority in the American Act. 1

1

Thus, in the United States, the Government not only derives aid, in the administration of the law, from the officers of the customs, who in Great Britain are the sole dependence in this respect, but it has local officers in the principal ports, both administrative and executive, whose action it commands; it may impose bonds of good behaviour on the owner of suspected vessels; informers are entitled to a share of forfeitures; and the judicial proceedings have advantages not to be found in the British Act.

All these things are trivial, when considered in relation to the great international questions of neutrality, and of peace or war. But we are compelled to discuss such trivialities by the extraordinary persistence of the British Government in basing its defence on the very defects of its Act of Parliament.

III. Of these differences between the American and the British Acts, and of the singular deficiencies of the British Act, the explanation is at hand. It is to be found in what English writers themselves delicately describe as the prejudices of Great Britain, or which can better be described as indisposition to appreciate fully the rights of other Governments.

The United States encountered the question of their own right of sovereignty in the matter of foreign equipments and foreign enlistments, and the relation of that matter to their own peace and the rights of other Governments,

1 Lord Clarendon, says Mr. Buchanan in one of his despatches, referred to our Neutrality Law [of April 20th, 1818] in terms of high commendation and pronounced it superior to their own, especially in regard to Privateers (App. Am. Case, vol. IV, p. 69).