ship employed in its naval service and forming part of its marine for purposes of war. There are no general rules which prescribe how, where, or in what form the commissioning must be effected so as to impress on the vessel the character of a public ship of war. What is essential is that the appointment of a designated officer to the charge and command of a ship likewise designated be made by the government, or the proper department of it, or under authority delegated by the government or department, and that the charge and command of the ship be taken by the officer so appointed. Customarily a ship is held to be commissioned when a commissioned officer appointed to her has gone on board of her and hoisted the colors appropriated to the military marine. A neutral power may indeed refuse to admit into its own ports or waters as a public ship of war any belligerent vessel not commissioned in a specified form or manner, as it may impose on such admission any other conditions at its pleasure, provided the refusal be applied to both belligerents indifferently; but this should not be done without reasonable notice.

"8. The act of commissioning, by which a ship is invested with the character of a public ship of war, is, for that purpose, valid and conclusive, notwithstanding that the ship may have been at the time registered in a foreign country as a ship of that country, or may have been liable to process at the suit of a private claimant, or to arrest or forfeiture under the law of a foreign state. The commissioning power, by commissioning her, incorporates her into its naval force; and by the same act which withdraws her from the operation of ordinary legal process assumes the responsibility for all existing claims which could otherwise have been enforced against her.

"9. Due diligence on the part of a sovereign government signifies that measure of care which the government is under an international obligation to use for a given purpose. This measure, where it has not been defined by international usage or agreement, is to be deduced from the nature of the obligation itself, and from those considerations of justice, equity, and general expediency on which the law of nations is founded.

"10. The measure of care which a government is bound to use in order to prevent within its jurisdiction certain classes of acts, from which harm might accrue to foreign states or their citizens, must always (unless specifically determined by usage or agreement) be dependent, more or less, on the surrounding circumstances, and can not be defined with precision in the form of a general rule. It would commonly, however, be unreasonable and impracticable to require that it should exceed that which the governments of civilized states are accustomed to employ in matters concerning their own security or that of their own citizens. That even this measure of obligation has not been recognized in practice might be clearly shown by reference to the laws in force in the principal countries of Europe and America. It would be enough, indeed, to refer to the history of some of these countries during recent

periods for proof that great and enlightened states have not deemed themselves bound to exert the same vigilance and employ the same means of repression, when enterprises prepared with their own territories endangered the safety of neighboring states, as they would probably have exerted and employed had their own security been similarly imperiled.

In every country where the Executive is subject to the laws, foreign states have a right to expect

"(a) That the laws be such as in the exercise of ordinary foresight might reasonably be deemed adequate for the repression of all acts which the government is under an international obligation to repress.

"(b) That, so far as may be necessary for this purpose, the laws be enforced and the legal powers of the government exercised.

"But foreign states have not a right to require, where such laws exist, that the Executive should overstep them in a particular case in order to prevent harm to foreign states or their citizens; nor that, in order to prevent harm to foreign states or their citizens, the Executive should act against the persons or property of individuals, unless upon evidence which would justify it in so acting if the interests to be protected were its own or those of its own citizens. Nor are the laws or the mode of judicial or administrative procedure which exist in one country to be applied as constituting a rule or standard of comparison for any other country. Thus, the rules which exist in Great Britain as to the admission and probative force of various kinds of testimony, the evidence necessary to be produced in certain cases, the questions proper to be tried by a jury, the functions of the Executive in regard to the prevention and prosecution of offenses, may differ, as the organization of the magistrature and the distribution of authority among central and local officers also differ, from those which exist in France, Germany, or Italy. Each of these countries has a right, as well in matters which concern foreign states or their citizens as in other matters, to administer and enforce its own laws in its own forum, and according to its own rules and modes of procedure; and foreign states can not justly complain of this unless it can be clearly shown that these rules and modes of procedure conflict in any particular with natural justice, or, in other words, with principles commonly acknowledged by civilized nations to be of universal obligation.

"In connection with the foregoing propositions are to be taken the three rules stated in Article VI. of the treaty, and accepted by Her Britannic Majesty's government in the manner expressed in that article."

Character of American Complaints.

The case of a vessel dispatched from a neutral port to or for the use of a belligerent, after having been prepared within the neutral territory for warlike use, might, said the British Case, be

regarded from two different points of view. The ship itself might be regarded merely as an implement of war and an article of contraband, or the preparation and dispatch of the ship might be viewed as the commencement of a hostile expedition. The difficulty in drawing the line between these two classes of transactions was great in theory and still greater in practice; and it was "enhanced to the utmost during the civil war by the ingenuity and audacity of American citizens who were engaged in carrying on hostilities against the Government of the United States, and who were desirous of availing themselves for this purpose of the shipbuilding and manufacturing resources of Great Britain." The difficulties encountered by Her Majesty's government in this regard finally led to an enlargement of the municipal law on the subject beyond what had hitherto been deemed necessary in any other country." The acts of which the United States complained were, said the British Case, of a class which had not commonly been made the object of prohibitory legislation and which had not, perhaps, when the war began, been directly prohibited except in the United States and Great Britain. Laws were not made till the necessity for them had arisen. The necessity for neutrality laws early arose in the United States, first in the war that began in 1793 between the French Republic on the one hand and Great Britain and the Netherlands on the other; and again in the war which broke out in 1810 between Spain (afterward assisted by Portugal) and the Spanish colonies in America. The laws passed to meet the exigencies which then arose had been in force for many years, and had always been held by the legislative authority in the United States to be adequate for their purpose; yet vessels had "from time to time been fitted out and armed within the United States to cruise and commit hostilities against nations with which the United States were at peace," and "severe losses and injuries" had been "inflicted on those nations by the depredations of such vessels." Moreover, it had "been constantly held and maintained by the United States" that the powers possessed by the government to prevent the fitting out of vessels within the national territory were such only as could be shown to be vested in the government by the Constitution and laws for the time being in force, and that, if these powers had been bona fide exercised, the United States were not responsible for losses inflicted by vessels fitted and armed within their territories.

It had also been the practice of the executive authority in enforcing the laws to act upon information afforded by foreign consuls, or by other persons interested in preventing the acts prohibited by law, and to require the persons furnishing such information to produce evidence in support of it.

The British foreign-enlistment act of 1819 British Laws. was, said the British Case, modeled on the neutrality act passed by the United States in the preceding year; but, as regarded the matters in question, it was "more stringent, rigorous, and comprehensive" than the American law. During the forty-two years that elapsed between its passage in 1819 and the year 1862 only one case founded on an alleged violation of its provisions appeared to have been brought to trial before a court. It resulted that the law of Great Britain, as it existed at the time of the civil war in the United States, was such as in the exercise of due foresight might reasonably be deemed adequate for enabling the British Government to perform its neutral obligations. But, in connection with the terms of the law, the following principles of the constitutional law of Great Britain were, said the British Case, to be considered:

"1. The Executive can not deprive any person, even temporarily, of the possession or enjoyment of property, nor subject him to bodily restraint unless by virtue and in exercise of a power created and conferred on the Executive by law.

"2. No person can be visited with a forfeiture of property, nor subjected to any penalty, unless for a breach of a law, nor unless such breach can be proved to the satisfaction of a competent legal tribunal, by testimony given on oath in open court, subject to the rules of procedure established here for the due administration of justice. Every witness is liable to be crossexamined by the accused party or his advocate.

"3. No person can be compelled to answer a question put to him in a court of law if the question is such that, by answering it, he would incur the risk of a penalty or of a prosecution before a criminal tribunal. Statements on hearsay are not admissible as evidence.

These general principles apply equally, whether the object sought to be attained be the prevention or punishment of an injury to the state, or to any citizen of the state, or to any other person or persons whomsoever.

"It may be further observed that, during the whole period to which the questions submitted to the arbitrators relate, every case of alleged infringement of the British foreign enlistment act brought to trial within the United Kingdom was required to be proved to the satisfaction of a jury."

The blockade of the Confederate ports, said Contraband and the British Case, maintained for a long time Blockade Running. very imperfectly, along a vast extent of coast, offered extraordinary inducements to persons to attempt to elude it. For such attempts it was found profitable to construct vessels of a peculiar class; and recourse was had for this purpose to the shipyards of Great Britain, which were accustomed to supply shipping to purchasers of all countries. Her Majesty's government, though aware that the blockade was for a considerable time not completely effective, recognized it from the first to the last. British subjects were warned that attempts to trade with the blockaded ports would subject them to the risk of the capture and confiscation of their property. The government neither did nor could prohibit subjects or persons within its dominions from engaging in trade, or from selling or constructing or purchasing vessels adapted for that purpose. By international law the right of blockade and the enforcement of it belonged to the belligerent, and not to neutral powers; and it followed that to the blockading power must be left the task of making the blockade effective.

At all the principal seaports of Great Britain, said the British Case, the United States maintained consuls or consular officers. It was the duty of these officials to keep a watchful eye on whatever might tend to endanger the security or interests of the United States, and to communicate their information to the minister of the United States at London. In the course of the years 1861, 1862, 1863, 1864, and 1865 many representations were addressed by Mr. Adams to Her Majesty's government respecting vessels which he believed to be intended to be used as privateers or commissioned ships of the Confederate States in cruising and carrying on war against the United States. To complaints of traffic carried on with blockaded ports, or in articles contraband of war, it was answered, on the part of Her Majesty's government, that these were enterprises which Her Majesty's government could not undertake to prevent, and the repression of which belonged to the United States as a belligerent power. Allegations, on the other hand, that vessels were being prepared for cruising or carrying on war were immediately referred to the proper officers of the government at the several localities for careful investigation and inquiry. If, on such investigation, it appeared by sufficient prima facie evidence that any illegal act was being or had been