between this country and America, in reference to that vessel, would have been avoided." (P. 1378.)

Mr. Rathbone, supporting the bill, said:

"In the name of the mercantile community, he thanked the Government for introducing this Bill, which only carried out the policy which the ship-owners of Liverpool pressed on the Government of the day very soon after the escape of the Alabama.” (P. 1380.)

Viscount Bury said:

"He could not agree with the honorable Member (Mr. Bourke) in regarding this as an inopportune moment for bringing forward this Bill. The fact that war was raging on the Continent was no reason for not amending our municipal law in points where this was notoriously defective. It was ridiculous to say that a builder did not know that the vessel he was building was for war purposes; and it was a less evil that the shipbuilding interest should suffer a little than that the whole nation should be involved in difficulties." (P. 1381.)

On 3d of August, 1870, upon the order for committee on the bill, the solicitor-general, Sir J. D. Coleridge, said:

"It would not occur in one case out of a thousand that the builder of a ship would have the smallest difficulty in proving what his contract was and under what circumstances it was undertaken." (P. 1510.)

He said further:

“The object of the clause was to prevent the escape of suspected ships from the harbors of the kingdom till the secretary of state had been communicated with. The clause gave an ad interim power of seizure." (P. 1512.)

The Attorney General, Sir R. P. Collier, said:

"The object was to give power to any officer who saw a ship about to escape to prevent such escape." (P. 1512.)

The Attorney General said further:

"The officers named would be able to seize a vessel without special instructions, in order that such vessel might not be allowed to escape. It was a most important power but it was only to be used in case of emergency, and if any wrong was done by the seizure there would be compensation." (P. 1512.)

Mr. Whalley said:

"He wished to ask, was such stringent legislation in practice in any country of the world?"

The Attorney General said:

"The clause was copied from the merchant-shipping act, which had been in force for twenty years without any complaint." (P. 1512.)

On the 4th of August, 1870, the bill being under consideration, the Attorney General, Sir R. P. Collier, said:

"He would propose to omit 'clause 11. This clause provided in effect that no war vessel employed in the military or naval service of any belligerent which should have been built, equipped, fitted out, armed, or dispatched contrary to this enactment should be admitted into any port of Her Majesty's dominions." (See the Report of the Commission, documents with the United States Case, vol. iv, p. 82.)

Mr. Dickinson said:

"He hoped this would not be done, otherwise vessels corresponding with the Alabama could be succored in cur colonial ports."

The attorney-general said:

"He had to explain that, although the royal commissioners made a recommendation to the effect of this clause, they did not intend that it should be embodied in an act of Parliament, but that it should be carried out under the Queen's regulations. The gov ernor of a colony would, under this clause, have to determine whether a ship entering his ports was illegally fitted out or not; and this was enough to show the object the commissioners had in view could not be carried out by an act of Parliament. It was intended, instead, to advise colonial governors of the escape of any illegally-fitted vessel."

Clause struck out. (P. 1555.)

Mr. Candlish said:

"He wished to call attention to clause 21. It provided that any custom-house officer might detain a suspected ship, so that the power would be vested in a tide-waiter who received, perhaps, 188. a week. This was an extraordinary power to vest in such hands, and he would propose that the power should be only exercised by the chief officer of customs in any port of the United Kingdom." The honorable member concluded by moving his amendment. (P. 1555.)

Amendment proposed, in page 8, line 7, " to leave out the word 'any,' and insert the words the chief,'" (Mr. Candlish) instead thereof. (P. 1556.) Mr. Alderman Lusk said:

"He questioned the propriety of giving so much power to custom-house officers of the lower class, as was proposed by this bill to confer on them."

The attorney-general, Sir R. P. Collier, said:

"Those officers of customs were, in fact, the police of ports and harbors. No more power was conferred on them by the bill than was already exercised by every parish constable throughout the kingdom. If the power of acting under the bill were confined to the chief officer of customs, as was proposed, it might happen that in a case of emergency that officer would be absent, and serious inconvenience would be the result. The principle of the clause was in operation in the merchant-shipping act and in all the prize acts. He quite admitted that the issue was more important than any that could be raised on the merchant-shipping act, but it was because it was more important that greater restrictions should be used. The great thing was to prevent the departure from our ports of any ships of the Alabama character."

"Question. That the word 'any' stand part of the bill" put and agreed to. Amendment negatived. (P. 1556.)

On the 8th of August, 1870, the House of Lords, being in committee on the bill, Viscount Halifax said:

"He had refrained from entering into any explanation of the object and provisions of the bill on occasion of the second reading, on account of the small attendance which could be expected at a Saturday sitting, but he would do so very shortly. The bill repealed the existing law, re-enacting it with such improvements as experience had shown to be desirable. It prohibits subjects of Her Majesty, without license from the Crown, from taking any part in hostilities between two countries with which Her Majesty was on friendly terms. He need not adduce arguments to show how unjustifiable and monstrous it would be for British subjects to take part in hostilities, when the avowed policy of the government was that of perfect neutrality; but it was a question not of international, but of municipal law-not between this country and foreign countries, but between the Crown and the subjects of the Crown. A similar law existed in the United States, while, on the continent, governments were able to prevent their subjects from violating neutrality. The principal objects of the bill were to prohibit any subject from enlisting or inducing others to enlist in the service of a belligerent power, and from fitting out, equipping, or arming any vessel for such service. During the American war, the powers of the government in this matter were found to be insufficient. In the case of the Alabama, that vessel left this country before the order of the government, issued as soon as they had sufficient evidence before them, reached the port; she left our port as an unarmed ship, and only received her armament at sea, beyond our jurisdiction, so that no blame could attach to the government; and in the case of the Alexandra and of the rams, proceedings before legal tribunals resulted in a proof that the government had not sufficient power in the matter. They were therefore glad to buy the rams in order to avoid any difficulty. This defect would be removed by the present bill, which was based on the report of a commission presided over by the late Lord Cranworth, and composed of other distinguished men." (Pp. 1678, 1679.)

He said further:

"The measure gave power to the secretary of state to detain a suspected ship; as also to local officers at the ports, who would report to the secretary of state, so as to cast on him full responsibility. It embodied all the recommendations of the report, with the exception of that relating to the reception of vessels into British ports, and this object could be accomplished by orders in council." (P. 1679.)

Lord Redesdale "thought the late introduction of this bill was excusable, as the exigency which called for it had only just arisen.” (P. 1680.)

V. THE TREATY OF WASHINGTON.

In proposing a question in regard to the "Alabama claims," in the House of Lords, May 12, 1871-(See Hansard's Parliamentary Debates, hird series, Treaty of Washpp 698-701)

Lord Redesdale said:

ington.

"The Southern States built and fitted out the Alabama. They ordered and paid for the ship. Their agents took her out of the Mersey, and equipped her in a foreign port, and the injury to the trade of the North was committed by their officers and the crews under their command." (P. 698.)

On moving an address to Her Majesty in regard to the Treaty of Washington on the 12th of June, 1871, in the House of Lords-(See Hansard's Parliamentary Debates, third series, vol. cevi, pp. 1823–1901)—

Earl Russell said:

"These were my words, in December, 1862 :

"With regard to the claim for compensation now put forward by the United States Government, it is, I regret to say, notorious that the Queen's proclamation, of the 13th of May, 1861, enjoining neutrality in the unfortunate civil contest in North America, has in several instances been practically set at naught by parties in this country.' "That, at all events, was a fair principle on which to proceed, and the cause came

to a point which may fairly be considered by the arbiters. Mr. Laird undertook to build a vessel for the confederate government. Mr. Adams complained that it was building, and that it was intended to be fitted out and equipped for the confederates. I replied, as I believe any secretary of state would have done, 'We must refer this to the board of customs and see whether they can obtain evidence by which the owners can be convicted.' It was referred to the legal advisers of the board, and on the 1st of July I was able to inform Mr. Adams that the board held there was not sufficient evidence that the ship was fitted out with the view of making war upon the commerce of a power on friendly terms with Her Majesty, and accordingly I deemed myself unable, on that statement, to direct a prosecution." (P. 1831.)

"On the 23d of July, Mr. Adams informed me that additional evidence had been procured that the ship was equipped so as to be fitted for warlike purposes, for he had obtained the evidence of a man named Passmore, who said it had been proposed to him by the captain of this vessel, '290,' that he should go to sea with him and make war on the commerce of the United States. That evidence was at once submitted to the law-officers of the Crown, who, on the 29th, informed me that there was a case for detaining the vessel and instituting a prosecution. On that very morning, however, she escaped, and it remains a question which may fairly be submitted to any arbitrators, whether I was justified or not, on the 24th or 25th, seizing the ship, afterward well known as the Alabama. Mr. Adams stated in one of his letters that sufficient promptitude had not been used; but Sir Roundell Palmer, speaking on the 27th of March, 1863, said:

"The United States Government have no right to complain if the act in question (the foreign-enlistment act) is enforced in the way in which English laws are usually enforced against English subjects-on evidence and not on suspicion; on facts and not on presumption; on satisfactory testimony and not on the mere accusations of a foreign minister or his agents.' [3 Hansard, clxx, 47.] That remark, moreover, had been quoted by a noble and learned lord opposite (Lord Cairns) when the Alexandra case was argued, and Sir Roundell Palmer at once adopted it, and said he still held the same opinion. It is, therefore, a very fair question for the arbitrators, whether those five days between the 24th and 29th were lost by want of due diligence, whether the law-officers were entitled to take the time for considering the matter; and whether an order to detain the vessel should have been at once sent down.” (P. 1831.) During the same debate, Earl Granville said:

"We were in this position-that we were bound by the act; but the American Government were not bound in the least in regard to the future, and I defy any one to say there is any country which has a greater interest than we have in escaping such depredations as were committed by the Alabama. We have agreed to principles which we think are just and right; we have agreed to arbitration to settle details by arbitration, and we have agreed that our subsequent legislation shall be judged by them. According to the treaty, we are to be liable to the consequences of not using 'due diligence.' The obligation to use due diligence' implies that the government will do all in its power to prevent certain things, and to detain vessels which it has reasonable ground for believing are designed for warlike purposes." (P. 1850.) "There is one proposal which was made by my noble friend (Earl Russell) so late as last year. After quoting the opinion of an individual who took a very strong part in the controversy, he said:

"It appears to me that if the officers of the customs were misled, or blinded by the general partiality to the cause of the South, known to prevail at Liverpool, and that a prima-facie case of negligence could be made out'-[not an ascertained case after due inquiry and investigation]- Great Britain might fairly grant a sum equivalent to the amount of losses sustained by the captures of the Alabama.'

"That passage occurred in the introduction of the noble earl to his published speeches." (P. 1850.)

During the same debate, the Earl of Derby said:

"The matter is one on which I hardly like to trust to the recollection of the moment, but I do not think that any one who has been concerned in these negotiations, however much he may have justified the conduct of the government of the day, denied that the escape of the Alabama was a regretable proceeding."

During the same debate Lord Cairns said:

"In the first article the duty of the neutral is qualified in this way. The neutral is to use all diligence to prevent the fitting out, &c., of any vessel' it has reasonable ground to believe is intended to carry on war against a belligerent. I want to know why these words which has reasonable ground to believe' are not repeated in the second rule. Why is the phraseology so entirely different in the first and second parts of the clause? The only explanation hitherto given us is that given by the president of the council, who says that the charge against us is that we did not use that due diligence which was incumbent upon us as neutrals. But the words 'due diligence occur in the first part of the clause just as much as they do in the second; and if due diligence is enough, and would prevent the question arising as to whether you had rea

sonable ground for believing, why should they not be sufficient in the first part as well as in the second? But the question would be one of the first to arise under the second part of the clause. When you urge that you had no reasonable ground for believing that a vessel leaving your ports was intended to cruise or carry on war against a power with which you were at peace, it may be said that you ought to have known it and would have known it if you had used due diligence. Therefore, I think it most important that, through what I may call an oversight on the part of those who constructed this clause, those qualifying words which were our only protection were omitted from the second part." (P. 1887.)

He said further:

"Any one of your lordships who considers the sentence will see that the point turns upon the words 'due diligence;' a neutral is bound to use due diligence. Now, the moment you introduce those words, you give rise to another question, for which I do not find any solution in this rule. What is the standard by which you can measure due diligence? Due diligence by itself means nothing. What is due diligence with one man, with one power, is not due diligence with another man, with a greater power. Now this becomes much more important when you introduce in connection another consideration. The rule I have read is to be a rule of international law, and if there is one thing more clear than another in international laws, it is this, that as between two countries, it is no excuse where an international obligation has been broken for one country to say to another that its municipal law did not confer upon its Executive sufficient power to enable it to fulfill its international duty." (P. 1888.)

During the same debate, the Lord Chancellor, Lord Hatherley, said:

"In the first place, it was well said that there is no correlative connection between international and municipal law in the abstract; that a foreign nation has nothing to do with the municipal law of another nation, but has a right to meet a statement that in any country with which it has dealings there exists no such law as would prevent the acts complained of, with the reply that it ought to have such a law, and that international law alone must settle the question between them-this being the line taken by the United States in reference to the Alabama." (P. 1890.)

The Marquis of Salisbury said:

"We have not been told what is to be the standard of 'due diligence' for us. A neutral will now be bound to adopt a system of espionage in order to ascertain whether any vessel is intended for a hostile cruise. It will be bound to increase its police, that it may have full information of all such undertakings. It will be bound to interfere with its subjects, to make minute inquisitions, to take an enormous number of costly and laborious precautions which before this treaty it was not bound to take."

On the 29th of June, 1871, in the House of Lords, in reference to a motion for an Address to Her Majesty in regard to the Treaty of Washington, (see Hansard's Parliamentary Debates, third series, vol. ccvii, pp. 729-741,) Earl Granville said:

"On the one hand, nothing is so easy as to prevent a vessel of the Alabama class escaping from our shores; and the only loss to the country which would result from such a prevention would be the small amount of profit which the individual constructing and equipping the vessel might derive from the transaction, which in almost every case is contrary to the proclamation of the Queen." (P. 741.)

16' c

NOTE C.-MEMORANDUM OF CORRESPONDENCE AND DOCUMENTS RELATIVE TO THE AMENDMENT OF THE ENGLISH FOREIGN-ENLISTMENT ACT, 1861-71.

On the 7th of September, 1861, Mr. Seward, writing to Mr. Adams, said: "I do not think it can be regarded as disrespectful if you should remind Lord Russell that when, in 1838, a civil war broke out in Canada, a part of the British dominions adjacent to the United States, the Congress of the United States passed, and the President executed, a law which effectually prevented any intervention against the Government of Great Britain in those internal differences by American citizens, whatever might be their motives, real or pretended, whether of interest or sympathy. I send you a copy of that enactment. The British Government will judge for itself whether it is suggestive of any measures on the part of Great Britain that might tend to preserve the peace of the two countries, and, through that way, the peace of all nations." (Am. App., vol. i, p. 102, 660.)

On the 28th of November, 1861, and, as it appears, before Mr. Adams had taken the direct action indicated in the dispatch of Mr. Seward above quoted, Lord Russell wrote to him as follows:

"Having thus answered Mr. Adams upon the two points to which his attention was called, the undersigned has only further to say that if, in order to maintain inviolate the neutral character which Her Majesty has assumed, Her Majesty's Government should find it necessary to adopt further measures, within the limits of public law, Her Majesty will be advised to adopt such measures." (Am. App., vol. i, p. 661.) On the 27th of March, 1862, Lord Russell wrote to Mr. Adams in part as follows: "6 I agree with you in the statement that the duty of nations in amity with each other is not to suffer their good faith to be violated by evil-disposed persons within their borders merely from the inefficacy of their prohibitory policy." (Am. App., vol. ii, p. 602.)

On the 20th of November, 1862, Mr. Adams, in accordance with explicit instructions from Mr. Seward, wrote to Lord Russell, submitting to his consideration a large number of papers, establishing the fact that the Alabama had destroyed a number of United States vessels, and so was actually carrying out the intention which Mr. Adams alleged that she had prior to her departure from the ports of Great Britain, and in the conclusion of the letter Mr. Adams said:

"Armed by the authority of such a precedent, having done all in my power to apprise Her Majesty's Government of the illegal enterprise in ample season for effecting its prevention, and being now enabled to show the injurious consequences to innocent parties, relying upon the security of their commerce from any danger through British sources ensuing from the omission of Her Majesty's Government, however little designed, to apply the proper prevention in due season, I have the honor to inform your lordship of the directions which I have received from my Government to solicit redress for the national and private injuries already thus sustained, as well as a more effective prevention of any repetition of such lawless and injurious proceedings in Her Majesty's ports hereafter." (Am. App., vol. iii, p. 72; vol. i, p. 666. Brit. App., vol. iv, p. 15.)

On the 19th of December, 1862, Lord Russell in part replied to Mr. Adams as follows:

"As regards your demand for a more effective prevention for the future of the fitting out of such vessels in British ports, I have the honor to inform you that Her Majesty's Government, after consultation with the Law-Officers of the Crown, are of opinion that certain amendments might be introduced into the Foreign-Enlistment Act, which, if sanctioned by Parliament, would have the effect of giving greater power to the Executive to prevent the construction in British ports of ships destined for the use of belligerents. But Her Majesty's Government consider that, before submitting any proposals of that sort to Parliament, it would be desirable that they should previously communicate with the Government of the United States, and ascertain whether that Government is willing to make similar alterations in its own Foreign-Enlistment Act: and that the amendments, like the original statute, should, as it were, proceed pari passu in both countries.

"I shall accordingly be ready at any time to confer with you, and to listen to any suggestions which you may have to make by which the British Foreign-Enlistment Act. and the corresponding statute of the United States, may be made more efficient for their purpose." ( (Am. App., vol. i, p. 667; vol. iii, p. 888; Brit. App., vol. iv, p. 25.)