Some Questions of International Law. not been formally accepted by the Powers,1 they may now be regarded as forming an integral and important part of the correct practice of International Law. They have, generally speaking, found favor in the eyes of continental jurists,2 and they were adopted, although in somewhat altered lan guage, by the Institute of International Law in 1875." They have long since been incor porated in the Neutrality and Foreign En listment Acts of the United States and Great Britain,4 and the British Foreign Enlistment 1 The United States and Great Britain agreed, according to the terms of the Treaty of Washing ton, to abide by these rules in their future rela tions with each other, and to invite other mari time Powers to accede to them, but this has never been done. The failure to invite or secure the adhesion of the maritime Powers does not, how ever, destroy their validity or impair the value and importance of the decision of the Geneva Board of Arbitration as a precedent. Additions to International Law are usually the result of a natural growth rather than of formal legislation, and if all such additions had to wait for the formal sanction of the Powers, there would be, com paratively speaking, little growth or progress. If the decisions of national prize courts constitute an important source of International Law, hoiv much greater should be the value of the decisions of International Courts of Arbitration as prece dents. Although the value and importance of the deci sion of the Geneva Board of Arbitration as a precedent can scarcely be called into question, there is still some difference of opinion in regard to the correct meaning of the phrase "due dili gence"; there are serious objections to the Am erican doctrine of intent; and all of the decisions of the Geneva arbitrators (or rather the reason ing on which some of these decisions was based) have not been fully accepted on all sides. 1 See, e.g., Calvo in Revue de Droit International, VI., pp. 453 ff: Bluntsclili in the same review, II.. pp. 452 ff; Calvo. Le Droit Int. IV.. §2.623; Blunttoine's trans.) III., §i,S5S; Rivier, II., §68, pp. 405 ff. 3 Tableau Generale de Flnstitut, pp. 161-63. Cf. An nuaire for 1877. p. 139. ' The United States Neutrality Acts of 1794 and 1818 and the British Foreign Enlistment Acts of 1819 and 1870. The British Act of 1819. like the United States Act of 1794 and 1818, prohibited the fitting out, as well as the arming, of any vessel with intent, etc.; but the administrative and preventative powers (vis., those requiring bond and authorizing detention for probable cause) of the tenth and eleventh sections of the United States_ Act of 1818 were omitted in the British Act of 1819. The evidence required in order to con-
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Act of 1870, which has been pronounced by a leading authority to be "perhaps the best and fairest expression of the modern rule anywhere to be found in public law,'1 5 goes dt least one step farther than our own Neu trality Act and the Treaty of Washington. It prohibits not only the commissioning, equipping, and dispatching, but also the building or construction, of "any ship with intent or knowledge or having reasonable cause to believe that the same shall or will be employed in the military or naval service of any foreign State at war with any friendly State'" • True it is that there is a long line of Amer ican jurists and statesmen who have held, in the language of Judge Story,7 that "there Is vict under the British Act of 1819 had to be sufficient to satisfy a jury of the probable viola tion of the provisions of the statute, and su.-h evidence was, of course, extremely difficult to obtain. The defects in the British Act of 1819, were probably due to lack of effective procedure or a want of proper administrative machinery rather than to any lack oí good intention on the part of the legislature. To those administrative defects there was added a certain inertness or indifference in the execution oí the lawu if not of positive sympathy with the Southern Confederacy, on the part of the governing classes of England which lamed the energies of the British Govern ment and caused its failure to strictly observe its obligations of neutrality during our Civil War.
- Snow's Cases, p. 438. Cf. Scott's edition, p. 720.
"§8 of the British Foreign Enlistment Act of 1870. See 33 and 34 Vict. 90. For a convenient abrr'gment of the British and American Neutrality Acts, see Scott's edition of Snow's Cases, pp. 692-95. 7 In the Santissima Trinidad, U. S. Supreme Court, 1827, 7 Wheat. 283. For a digest of lead ing American cases involving a breach of our neutrality laws, see Dana's Wheaton. note 215, pp. 543-557- For opinions of American statesmen and judges, see Wharton's Dig. III., §§393 air! 306. See especially the opinions of Sec. Clay and those of Judges Betts and Nelson in the case of the Metear. Sec. Clay was of the opinion that "if the neutral show no partiality; if he is as ready to sell to one belligerent as the other; and if he take, himself, no nart in the war. he cannot be justly accused of any violation of his neutral obli gations." But then Mr. Clay does not seem to have been absolutely sure that it was a violation of neutrality for the head of a State to sell, to a belligerent, ships of war completely equipped and armed for battle. Mr. Clay, Sec'y of State to Mr. Tacón, Wharton's Dig. IIÏ., p. 521.
