activity of municipal law says: "A retroactive statute would partake in its character of the mischiefs of an ex post facto law as to all cases of crimes and penalties, and in matters relating to contracts or property, would violate every sound principle."*

Retroactivity is manifestly a principle which cannot be recognized by a sound national policy, and it is to be hoped that the nations invited by the high contracting parties to recognize the three rules of neutrality will protest energetically against a precedent without example and without a name.

For the same reason, the recognition of the second rule cannot fail to precipitate a conflict between Prussia on the one hand and Great Britain and the United States on the other, on account of the supply, by the latter powers, of arms and military stores to France during the late war. Prussia, at the time, protested against such a practice, as being in flagrant violation of the laws of neutrality. Does not the Treaty of Washington necessarily involve an acknowledgement that Prussia was in the right? It says: "A neutral government is bound not to permit or suffer either belligerent to make use of its ports or waters for the purpose of the renewal or augmentation of military supplies or arms or the recruitment of men." The high contracting parties agree to observe these rules in future and to bring them to the knowledge of other maritime powers and invite them to accede to them. There can be no doubt that Germany will not only hasten to recognize these rules for the future, but will likewise invoke them with regard to the past, by representing to the high contracting parties that if the supplying of arms is under the circumstances recited, contrary to public international law in 1871, it must have been equally so in 1870, the rule being based not upon international agreements but upon reason and justice. So true is it that these rules of neutrality form part of the nat ural law that they have at all times been laid down by many text writers. Without desiring to make an extensive study of the point-which would lead us away from the subject of our article --we may cite Vattel. The first duty of a neutral state, he says is to give no assistance when there is no obligation to give it, nor voluntarily to furnish troops, arms, ammunition, or anything of direct use in war."† Bynkershoek ‡ said before Vattel, that

66

* Dwarris on Statutes, vol. ii, p. 540.

† Liv. III, ch. 7, 104.

Quæstiones juris publici, I. 9.

"the enemies of our friends are to be considered in a twofold light, as our friends and our friends' enemies. If you consider them as friends, we may rightly aid and counsel them and may supply them with auxiliary troops, arms and other things which war has need of. But as far as they are our friends' enemies, it is not permitted to us to do this, for thus we should prefer one to the other in war, which equality in friendship-a thing to be specially aimed at forbids."* Barbeyrac in his notes on Pufendorf (1712) expresses himself in nearly the same words.† "L'histoire de l'Europe" said Azuni in 1801, "fournit néanmoins des exemples de puissances, qui malgré leur neutralité déclarée n'ont pas cessé de fournir des troupes, des recrues, de l'argent, des munitions de guerre, et des approvisionnements de toute nature, propre à accroître la force d'un des belligérans. Ces exemples cependant ne sont concidérés que comme de vrais abus des droits de la neutralité, pratiqués par des nations qui se croient sûres de n'être point attaquées, pour raison des secours qu'on en tirait, soit à cause de leur situation avantageuse, soit à cause des garanties données et des complications de droits d'autres souverains, qui empêchaient qu'on ne les attaquât; c'est ainsi qu'on a vu souvent des nations rester exemptes du fléau de la guerre, quoiqu'elles n'eussent fait aucun traité spécial pour s'en garantir.”

ተ

Finally the pretension of Great Britain that she was justified by international law in recognizing the South as a belligerent on the sea as well as on land, (a pretension which all publicists and among others Bluntschli have regarded as well founded.) has not been admitted. If we are to judge by the 36th protocol, it does not appear that this point was submitted to the attention of the Joint High Commission. This omission was the more important, that it may be doubted whether, under the Articles 6 and 7 declaring that the arbitrators shall be governed by the three rules “and by such principles of international law as are not inconsistent therewith," the United States cannot argue anew that Great Britain (independently of her duties as defined by the three rules) is responsible for her recognition of the South as a bellige rent" in an unprecedented and precipitate manner."

* See also Massé, Dr. Com. p. 145, 228.

† Le Dr. de la Nature, vol. 2, p. 461, n. 2.

Dr. Mar., vol. 2, p. 46.

II. THE FENIAN CLAIMS.

In closing our remarks on the recognition of the principles involved in the settlement of the Alabama claims, we cannot forbear expressing our surprise to see the Fenian question set aside without any resistance or serious remonstrance on the part of the British Commissioners. The Fenian claims have been officially presented by the Government of the Dominion to the Imperial Government. Of this there are abundant proofs, and a very recent one is to be found in the report of the Hon. A. Campbell's mission to London, dated 10th September, 1870. The following summary of his interviews with Lord Kimberley, concerning the Fenian invasions and the troubles caused by them, will, we are sure, be perused with interest :

“Upon this subject I pointed out the troubles and losses which, during a number of years, had been caused to Her Majesty's subjects in Canada, by the Fenian marauders; that these men were American citizens, many of them not even Irish by descent; that they were enlisted, armed, and drilled in the large cities of the Union, under the orders of a Fenian Congress and Executive assuming the pretensions of a Government, the drilling occasionally even taking place in company with militia corps, under officers believed to hold commissions under the Government of the United States, the United States journals of the day giving the fullest publicity to everything which was being done. I described the Fenian invasions and repulse in 1866, and referred to the representations and the claim for indemnity made by Sir George Cartier and Mr. Macdougall on behalf of Canada to Her Majesty's Government with reference to the losses thereby caused, which were stated in a memorandum furnished to the Colonial Office by those gentlemen as amounting to several millions. I referred to the several alarms which had taken place since 1866, all attended with more or less injury to the country, and with more or less expenditure, and said that early in the present year the threatened invasion and the actual one had injured the country very much; that the loss with regard to industrial pursuits it would be difficult to estimate, and there had been a large expenditure in sending forward volunteers to meet the invading forces. The number of men sent out was about 6,000 in April, and in May about 12,000—these numbers would be equivalent to calling out 60,000 and 120,000 in England. In answer to an inquiry by Lord Kimberley I said that I could not state the actual military expenditure with any accuracy, but that up to the time I left Canada it was supposed to be somewhere between five hundred and eight hundred thousand dollars, and that whatever it was, it formed but a small portion of the loss sustained by the country. We thought a very strong case might be

made out for a demand for indemnity from the United States. Messrs. Cartier and Macdougall had asked that such a demand should be made with reference to the loss sustained in 1866, and we considered that we were entitled to ask for indemnity in reference to all the expenditure that had been since caused to us by the Fenians. Failing the obtaining of such an indemnity from the United States, we thought the Empire should join with Canada in meeting the losses; the Fenian difficulties were not of our creating, but grew out of real or imaginary wrongs that the Empire had in the past inflicted on Ireland, and we were fighting battles which were not ours but those of the Empire. We were quite ready, as a portion of the Empire, to bear our share of these or any other troubles in which the country might be involved, but it was not fair that we should be allowed to suffer alone all the losses and consequences of the Imperial acts or policy which were complained of, and I strongly urged that for the past and the future, should any further Fenian troubles arise, the Empire, as a whole, should bear the burden of resisting such attacks, and that Canada should only contribute as a portion of the Empire. Lord Kimberley suggested that the present generation of Canadians were as responsible for the alleged wrongs of Ireland as the present generation of the fellow subjects residing in Great Britain. Admitting this, I urged that the fair conclusion was that all alike, and not Canadians alone, should bear the losses and consequences of the course which had been in the past followed towards Ireland. His Lordship said it was impossible for him to dispose of the question, and he took for granted that I did not anticipate he would, but he would consider it himself and obtain early consideration of it by his colleagues, letting the Canadian Government know what view was taken."

That under these circumstances the Government of Canada has a right according to the rules of international law to an indemnity, it is needless to discuss.

Vattel said, nearly a century ago: "The nation or the sovereign aught not to suffer the citizens to do an injury to the subjects of another State, much less to offend that State itself."* This is, in fact, the rule of the Roman law above cited, which has passed not only into international law but also into the municipal laws of all civilized nations. It is, finally, the same principle which has been sanctioned by the three rules of the 6th article of the Treaty of Washington, with the single difference that with reference to the Fenian Question its application is extended to operations by land.

This general principle has further been formally recognized as

* Vol. 2, p. 165.

applying to hostile raids organized upon the soil of a neutral state. "A neutral State" says Rolin Jacquemyns,* "ought to abstain from favouring or tolerating-1st. The organization upon its territory of any band recruited for purposes of agression against a foreign State. 2nd. The fitting out in its ports of armed vessels intended to aid in any manner whatsoever any attempt at insurrection in the possessions of a foreign sovereign.

"These rules are not new; they are but the application of the immutable principle of justice that neutrality so long as it exists must be really and seriously enforced. But this is the first time that they have been formally proclaimed, besides, it should be noticed with respect to the first rule, that it makes a distinction between "bands recruited" for purposes of aggression and persons who engage individually in an insurrection. The neutral State, it is plain, cannot be held responsible for the deeds of individuals whose liberty of action has escaped from her control; but the enlisting and assembling of troops, on the contrary, are marks of the exercise of sovereign power, and are suppressed by the laws of every State on whose soil and territory they are made. The State which does not put a stop to them becomes responsible. (V. Bluntschli, das moderne Völkerrecht, $$ 751 and 758.)"

Bluntschli, in his Opinion Impartiale sur la Question de l'Alabama, says: "Nor can any State, in time of peace, permit hostile operations to be organized on her territory against a friendly State. Every State is bound to see that its territory does not become a base of operations for military enterprises directed against States with whom it is at peace. These universal international principles," adds the learned publicist, "are consecrated by the municipal law of England and America." The latter remark is so true that the Fenian General O'Neil and other chiefs of that organization were last year tried and condemned to imprisonment in the Sing Sing State Prison, for violation of the municipal neutrality laws of the United States in connection with the Fenian Raid of the preceding spring. But it cannot be pretended that such a punishment constitutes the totality of the penalty required by international law for such an open violation of neutrality.

* Revue de Dr. Int., vol. i, p. 447.

It was in 1869, by the Paris Conference, to settle the GrecoTurkish difficulty.

Revue de Dr. Int., vol. ii, p. 452-485; Revue Critique, p. 20.