to regret. The interpretation given to them by the Tribunal of Geneva would compel the United States to maintain, whenever we were neutrals, a naval police throughout the whole extent of our coasts, both on the Atlantic and Pacific Oceans. "The due diligence, it was said, referred to in the first and third of said rules, ought to be exercised by neutral governments in exact proportion to the risks to which either of the belligerents may be exposed from a failure to fulfill the obligations on their part."

These rules, after being greatly modified by Bluntschli and other Continental jurists, received in 1875 the approval of a majority only of the members of the Institute present at the Hague. My own views, as communicated to the Secretary-General, M. RolinJaequemyns, were substantially in accordance with those of Professor Lorimer, who declared that "the three rules of Washington, as well as the American and English foreign enlistment acts passed under the influence of the same ideas, are bad in theory and inapplicable in practice." Mountague Bernard and Sir Travers Twiss also opposed their adoption.

There is no question but that all kinds of contraband articles may be sold by a neutral, the belligerent running the risk of their being captured on the high-seas by the other belligerent. The sole question which has arisen has relation to ships-of-war or vessels to be employed as such, but it has been held by the Supreme Court of the United States, even under our neutrality acts, that a ship may be sent to a foreign market, like any other commodity, and sold to a belligerent. Though it is conceded that munitions of war may be sold in a neutral country to be used against a state at peace with it, and though a ship fitted out and equipped for war may be sent to seek a purchaser, it is contended that she cannot be sold at home to a belligerent. I have not been able to see any other ground on which to rest this distinction than that which was assumed by President Washington's Administration, and which connects itself with the well-recognized rule forbidding, in all cases, a neutral to permit his territory to be used as a base of hostile operations. It was against the use of the port, and not against the sale of ships, that the proclamation of 1793 was directed. It is from confounding the right to sell a ship-of-war in a neutral port with the equipment and dispatch from it of a hostile expedition that the difficulty has arisen.

The correspondence between the two governments after the Alabama escaped in 1862, interspersed with claims about premature recognition, was mainly taken up with the accounts of Mr. Adams's efforts to induce the English courts to carry into effect their own neutrality acts. It cannot but be deemed a matter of regret that we allowed ourselves to be drawn into the discussion. whether the English laws had or had not been executed, thus apparently withdrawing the case from its only true test, the law of nations. Our course was the more inexpedient, as, contrary to the system which prevails in the United States, of confiding the execution of the neutrality acts, including that of 1818, to the admiralty courts, the English act of 1819, which was the law during the long-protracted case of the Alexandra, had given jurisdiction to the common-law courts. It was only under the act of 1870 that the change of jurisdiction has been effected.

I refrain from any minute discussion of the neutrality acts of either England or the United States, because they are not entitled to be considered otherwise than as municipal regulations which may be convenient modes of carrying into effect neutral obligations, but cannot, in any way, either limit or extend the law of nations applicable to the subject, and certainly cannot derogate from the right of sovereigns or from the immunity of ships-of-war in the ports of either country.

The impressions under which this article was commenced, that we might, in consequence of the hostilities then supposed likely to arise, from matters growing out of the situation of the Ottoman Empire, between Russia and England, be compelled to a close examination of our neutral duties, have at this time (June 13th), in a great degree, disappeared.

The arrival in our waters of a vessel under the German flag, having on board officers and men for the supposed purpose of manning vessels to be purchased in the United States as Russian ships-of-war, invited the attention at least of the public journals to the attitude in which we were now and might hereafter be placed toward England.

I would premise that I cannot conceive of the existence of any neutral duties when no war exists. Neutrality ex vi termini implies belligerency; and a breach of neutrality can only occur with regard to a matter arising during a war.

I don't know of any case, since England abandoned her practice of seizing foreign vessels in her ports during peace, under the impression that war might possibly thereafter arise, that the laws of war have been applied to a state of peace; and in those cases, when war did ensue, the property that had been taken was not condemned as prize of war but as droits of admiralty, which originally belonged to the lord high admiral.

The United States courts have always been scrupulous in recognizing the exterritoriality of public ships. In the case of the Exchange, reported in Cranch's "Reports" (vol. vii., pp. 135– 147), the principle that a vessel bearing the flag and commission of a belligerent power was not within the local jurisdiction of the neutral law, though claimed by citizens of the neutral country as having been forcibly taken from them as prize contrary to international law, was fully upheld on appeal by the Supreme Court of the United States.

The exterritoriality of ships-of-war was discussed before the tribunal at Geneva, and in the judgments rendered by the several arbitrators; it being contended, on the part of Sir Alexander Cockburn, that it was an absolute right, while it was held by the other commissioners that it was founded on the principle of courtesy and mutual deference between different nations, and they contended that it could never be appealed to for the protection of an act done in violation of neutrality.

In the statement of Mr. Adams on this subject, it is said—

"On behalf of Great Britain it is claimed that the rule is perfectly established that a vessel belonging to any power, recognized as sovereign or as a belligerent, has in virtue of its commission a right to claim a reception and the privilege of exterritoriality, without regard to its antecedents, in the ports of every neutral power."

Mr. Adams proceeds to say:

"The authorities quoted to sustain this position sustain it as an established general rule. I see no reason to question it, but the question that has been raised in the present controversy is an exceptional one, which is not touched by these decisions."

Mr. Adams then argued that the vessels whose origin and conduct were discussed before the Geneva Tribunal were not

bona-fide foreign ships-of-war at all, and that the commissions held by them ought to have been regarded as nullities. He also considers the case on the hypothesis of their commissions having been real, but of these ships having abused the comity of England, and of their having been engaged in gross violation of the laws of Great Britain and of international law. He gives his opinion that, "by such fraudulent abuse of the comity of England by their setting at defiance England's laws within its own jurisdiction, the perpetrators of such conduct had not only forfeited all right to consideration, but had subjected themselves to the penalties of malefactors if ever they returned within the jurisdiction which they had insulted."

At all events, none of these exceptional considerations could arise in any matter growing out of the recent Russian proceedings. Indeed, the neutrality laws, neither of the United States nor England, contemplated any such cases. The American acts of 1794 and 1818 were directed to the operations of privateers fitted out by our own people-employed, in the first case, as privateers under French colors, and, in the second, by parties who were likewise our own citizens, availing themselves of commissions from insurgent governments of Spanish America. The English act of 1819 grew out of the wars of the Spanish-American colonies, and the demands of Spain on England to fulfill treaty stipulations. The provisions in the act of 1870, in reference to the building of ships, are confessedly not required by international law.

How can it be said that, for the violation of a municipal law alone, a neutral can seize a ship when it has become the property of a foreign government? If one sovereign gives offense to another, either directly or through his fleets or armies, the course of redress is, at first, to diplomatic representation, or, ultimately, if the grievance is of sufficient magnitude, by resort to war. No process can be issued in a court of admiralty or any municipal tribunal against a sovereign, his ships-of-war, or other property belonging to the state.

I am aware that the case of a steamer intended to be purchased on account of the German Government, which arose in 1849, is supposed to be inconsistent with the statement that the neutrality act cannot be applied to the public ships of a foreign

sovereign. This case was brought to general notice in a late number of the Solicitor's Journal, vol. xxii., page 550, referring to a note of Mr. Dana's edition of Wheaton, page 561, note 218. As the note is the same in substance, and has the same citations ("Annuaire de Deux Mondes," 1852-53, page 485; "Congressional Documents Thirty-first Congress, First Session, House of Representatives, Executive Documents," No. 5) as note 38, page 95 of Lawrence's Wheaton, the case had not escaped my attention. On examining the "Congressional Documents," it will be seen that there is no attempt to apply a statute of the United States to the German Empire, or to exercise jurisdiction over a public ship of that country, but that the vessel in question never was a German ship-of-war, no title ever having passed out of the American owner. Nor was it intended that it should do so while the vessel remained in port. The Danish minister, in his note to the Secretary of State, April 2, 1849, says that a vessel had been bought for account of the central Government of Germany to be converted here into a war-steamer and fitted out as such, yet, "under the express stipulation of retaining her American character until delivered in a German port, so as to have the protection of the American flag in crossing the ocean." In this view of the matter the American owner, who was the legal proprietor, as well as his vessel, might have been within the cognizance of the neutrality act; but its provisions would have had no effect as to a public ship-of-war of the German Empire, wherever built, which had been duly commissioned by the sovereign power of that country and bore its flag.

What was done, or intended to be done, in that case, was no violation of international law. If an offense at all, it was against the neutrality act-that is to say, the municipal law of the United States. The distinction should ever be kept in view that a breach of the municipal law, though it may be of a law relating to neutrality, does not constitute a breach of neutrality as between nations. That which, if done by a subject, would simply amount to a breach of his own law, does not become a violation of neutrality because done by a foreigner.

"How, then," said the present Lord Chief-Justice of England, can it be said that for a violation of a municipal law alone a neutral can seize a vessel, in respect to which that law alone has been