comprehensive" than the neutrality laws of the United States, the Counter Case of the United States made the following comparison:

"1. Enlistments of British subjects only are made unlawful by the British act; the American act, on the contrary, makes all enlistments within the neutral jurisdiction unlawful, except naval enlistments of subjects of the enlisting belligerent made on the deck of a vessel of the belligerent while within the neutral waters.

"2. By executive and judicial construction, the words. 'equip,' fitted out,' and 'furnish' have received a much broader meaning in America than in Great Britain, as the United States have explained in their Case.

"3. The tenth and eleventh sections of the American act, commonly known as the bonding clauses, are admitted not to be in the British act. And it is also admitted that these clauses are intended to be preventive, not punitive. 1

1

"4. The eighth section of the United States act is also omitted in the English act. This section, the practical operation of which is explained in the case of the United States, is regarded by them as by far the most efficient part of the act for the prevention of violations of neutrality."

Action on American
Complaint.

Nor did the United States understand, said the Counter Case, that it was true that "allegations that vessels were being prepared for

The "bonding clauses" are now incorporated in the following sections of the Revised Statutes of the United States:

"Sec. 5289. [Act of 1818, sec. 10.] The owners or consignees of every armed vessel sailing out of the ports of the United States, belonging wholly or in part to citizens thereof, shall, before clearing out the same, give bond to the United States, with sufficient sureties, in double the amount of the value of the vessel and cargo on board, including her armament, conditioned that the vessel shall not be employed by such owners to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace.

"Sec. 5290. [Act of 1818, sec. 11.] The several collectors of the customs shall detain any vessel manifestly built for warlike purposes, and about to depart the United States, the cargo of which principally consists of arias and munitions of war, when the number of men shipped on board, or other circumstances, render it probable that such vessel is intended to be employed by the owners to cruise or commit hostilities upon the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people with whom the United States are at peace, until the decision of the President is had thereon, or until the owner gives such bond and security as is required of the owners of armed vessels by the preceding section."

cruising or carrying on war" were in all cases followed by seizure of the vessels, when sufficient prima facie evidence of the illegal purpose was furnished. "They understand," said the Counter Case, "exactly the contrary to have been the case; that until the opinion of the law officers of the Crown, given on the 29th day of July 1862 (the day of the escape of the Alabama), all branches of Her Majesty's government held that it was necessary, not only to establish a preparation for cruising or carrying on war, but also an actual arming of the offending cruiser in a British port, in order to justify seizure, and that this prevailing opinion was afterward sustained in effect by the courts of England in the Alexandra case, which is still the unreversed judicial construction of the act of 1819."

In conclusion, the American Counter Case Concluding Consider- presented the following general considerations:

ations.

"1. Both parties contemplate that the United States will endeavor to establish in these proceedings some tangible connection of cause and effect between the injuries for which they ask compensation and the acts committed by the several vessels,' which the treaty contemplates are to be shown to be the fount of those injuries.

"2. The tribunal of arbitration being a judicial body, invested by the parties with the functions necessary for determining the issues between them, and being now seized of the substance of the matters in dispute, will hold itself bound by such reasonable and established rules of law regarding the relations of cause and effect as it may assume that the parties had in view when they entered into their engagement to make this reference.

"3. Neither party contemplates that the tribunal will establish or be governed by rules in this respect which will either on the one hand tend to release neutrals from their duty to observe a strict neutrality, or, on the other hand, will make a course of honest neutrality unduly burdensome."

The Counter Case of Great Britain, a comBritish Counter Case. prehensive document of about the same length as the British Case, was, as has heretofore been stated, filed without prejudice to the position assumed by Her Majesty's government in the controversy then pending in relation to the "indirect claims." While declaring that Her Majes ty's government was entitled to assume that the claims which it would have to meet would be found to relate exclusively to the Florida, the Alabama, the Georgia, and the Shenandoah, the British Counter Case called attention to the fact that none of

the other vessels on account of which the United States had in its Case advanced claims was alleged to have been in any manner armed, fitted out, or equipped for war within British territory. Three of them were said to have been captured, armed, and employed as tenders by the officer commanding the Florida during the cruise of that vessel, and one by the commander of the Alabama. As to the Sumter and the Nashville, it was alleged only that they received hospitalities in British ports. The Tallahassee and the Chickamauga, though originally built in England, were employed in carrying cargoes to and from ports of the Confederate States, and were converted into cruisers by the Confederate government. As to the Retribution, it was merely alleged that her commander contrived on two occasions to carry a prize captured by him on the high seas into the territorial waters of a British island, and there to dispose of or destroy the cargo. Besides these nine vessels there had, said the British Counter Case, been introduced into the list of claims losses for captures by two vessels named the Boston and the Sallie, which were not mentioned in the Case, and expenses said to have been incurred in the pursuit of a third, the Chesapeake, as to which the Case of the United States was equally silent. Her Majesty's government presumed that this had been done through inadvertence.

Limits of Neutral
Duty.

After certain observations upon some of the evidence, and upon some of the opinions of publicists, introduced by the United States, as possibly being affected by partisanship or bias, the British Counter Case proceeded to consider the propositions laid down in the Case of the United States on the subject of neutral duty. The British Government could not, it was said, admit without very material qualifications the proposition that a neutral was obliged to enforce its municipal laws, proclamations, and executive orders, though the belligerents might, if they thought fit to do so, ask for any of these things; nor could it admit as generally true the proposition that a belligerent power had a right to call upon a neutral state to make changes in its domestic legislation. Great Britain adhered to the three rules of the treaty, and was ready to discuss their construction; but it could not admit the assumption "that whatever is or was prohibited by British law or by the orders or proclamations of the British Government ought, as against Great Britain, to be held to be prohibited by the law of nations."

The law of nations was "to be gathered, not from British statutes or ordinances, but from the general consent of nations, evidenced by their practice;" and those statutes and ordinances could be appealed to only for the purpose of proving that the government was armed "with sufficient power to discharge its international duties, and not for the purpose of extending, any more than of restricting, the range of those duties." The British Government, said the Counter Case, agreed that where appreciable injury had been directly caused by the violation of a clearly ascertained national duty, suitable reparation should be made to the injured party, but not otherwise. Nor could Great Britain assent to the doctrine that the default of a neutral power was not limited to the acts done or omitted to be done on its part, within its own territory, but was to be deemed a continuing default, or series of defaults, during the whole or some part of the subsequent proceedings of the offending vessel beyond its jurisdiction. And in determining the question of default or culpable negligence, it should be kept in view that there would not be found "in text-books of acknowledged authority anterior to the civil war," or "in the general practice of maritime nations," "any proof or acknowledgment of a duty incumbent on neutral governments to prevent their citizens or subjects from supplying belligerents with ships adapted for warlike use," or "any distinction drawn in this respect between the sale and delivery of a vessel built to order and that of a vessel not built to order."

Hospitalities to Belligerents.

With respect to the admission of belligerent ships into neutral ports, the British Counter Case maintained that it was within the absolute discretion of the neutral government either to refuse admission or to grant it, and to "extend to vessels so admitted all the ordinary hospitalities of a friendly port;" "provided only that the same facilities be offered to both belligerents indifferently, and that such vessels be not permitted to augment their military force, or increase or renew their supplies of arms or munitions of war, within the neutral territory." No restrictions whatever, it was contended, were required to be placed on purchases of provisions, coal, or any supplies other than arms or munitions of war. So, also, belligerent ships might be permitted to repair and refit, or to bring in prizes, or even to sell them, though there could be no condemnation of them in

the neutral port. These things, it was said, did not amount to making of the port a "base of naval operations," which denoted the use of neutral territory as a station or point of departure from which to watch for and attack the enemy.

ligerent Vessel.

In regard to the duty claimed by the United Duty to Detain Bel- States to rest upon the neutral, under the second rule of the treaty, not only not to extend hospitalities to, but to seize and detain, whenever it might enter the jurisdiction, a belligerent vessel which had there been specially adapted, in whole or in part, to warlike use, the British Counter Case contended that while such a vessel, having become liable to seizure, could not relieve itself by moving from one place to another within the national jurisdiction, as from Liverpool to Queenstown or Nassau, yet it could not be seized after it had outside of the jurisdiction duly entered the service of a belligerent. "The Alabama," said the Counter Case, "when she touched for the first time at a port of a British colony, had for more than six months been commissioned and in active service as a cruiser of the Confederate States; had, as such, fought a successful action with a United States war steamer; and, as such, had been received at the French island of Martinique, as she afterward was at Fernando de Noronha, Bahia, and Cherbourg. And, in matters relating to the war, it was the duty of Great Britain, as it was the duty of all other neutral powers, to treat the Alabama in exactly the same manner as, under corresponding circumstances, they would have treated a public ship armed and commissioned by a recognized sovereign state." If, while in neutral waters, a ship so commissioned committed a violation of neutrality, force might, said the Counter Case, undoubtedly be employed in any way which might be necessary "in order to prevent or arrest the unlawful act or to compel her departure. But redress ought not," it continued, "to be sought against the ship itself; it should be sought, if needful, against her government. A fortiori, this is true if the offense were committed before she arrived at the neutral port."

Neutral Duties Historically Tested.

As illustrating the duties and practice of neutrality, and the difficulties and imperfections usually exhibited in its enforcement, the British Counter Case reviewed a number of precedents which had either been appealed to by the United States, or which

Citing Ortolan, Dip. de la Mer (4th ed.), II. 190.