own concerns. It is obvious that this is adopting a very variable standard, for it still leaves much ground for doubt as to what is common prudence and who is capable of governing a family. But the difficulty is intrinsic in the nature of the subject, which admits of an approximation only to certainty. Indeed, what is common or ordinary diligence is more a matter of fact than of law, and in every community it must be judged of by the actual state of society, the habits of business, the general usages of life, and the changes, aa well as the institutions, peculiar to the age. So that, although it may not be possible to lay down any very exact rule, applicable to all times and all circumstances, yet that may be said to be common or ordinary diligence in the sense of the law which men of common prudence generally exercise about their own affairs in the age and country in 'which they live. It will thence follow, that in different times and in different countries the standard is necessarily variable with respect to the facts, although it may be uniform with respect to the principle; so that it may happen that the same acts which in one country, or in one age, may be deemed negligent acts, may at another time, or in another country, be justly deemed an exercise of ordinary diligence. What is usually done by prudent men in a particular couutry in respect to things of a like nature, whether it be more or less, in point of diligence, than what is exacted in another country, becomes. in fact the general measure of diligence."

"The same standard is, in practice, applied in the English Law... The older authorities, indeed, speak of three degrees of negligence, and of 'gross' negligence as being necessary in some cases to found liability; but the tendency of modern decisions has been to apply in all cases the sound practical rule that in determining the question of negligence, the true test is whether there has been, with reference to the particular subject matter, that reasonable degree of diligence and care which a man of ordinary prudence and capacity might be expected to exercise in the same circumstances 1 have cited these authorities because, in the absence of any reference to the question of diligence among writers on International Law, it seems to me that the principle that prevails as to men's conduct in the affairs of life may by analogy be well applied to the discharge of its duties by a Government. Applying this standard, one nation has a right to expect from another, in the fulfilment of its international obligations, the amount of diligence which may reasonably be expected from a well-regulated, wise, and conscientious Government, according to its institutions, and its ordinary mode of conducting its affairs, but it has no right to expect more. The assertion of the obligation of a neutral Government, as stated in the American Case,-that the diligence is to be proportioned,' not only to the magnitude of the subject,' but also to the dignity and strength of the Power which is to execute it' -as though there could be one measure of diligence for a powerful State and another for a weak one-a diligence which shall prevent

its soil from being violated'-which shall deter designing men,' &c. -thus making the neutral Government answerable for the eventand which prompts to the most energetic measures'-appears to me much too extensive, and altogether inadmissible. The diligence required of a Government to prevent infractions of neutrality may relate (1) to the state of its municipal law ; (2) to the means possessed by it to prevent such infractions; (3) to the diligeuce to be used in the application of such means to the end desired." But

"1. Is a Government, intending faithfully to discharge its duty towards another Government, to be held responsible for a mere error of judgment? As, for instance, in thinking a vessel not liable, in point of law, to seizure, when in fact she was so; or in thinking the evidence in a particular case insufficient when it was sufficient.

2. Is a Government wanting in due diligence if it declines to seize a vessel at the instance of a belligerent, when properly satisfied that, though there may be circumstances of a suspicious character, the only evidence which can be adduced will not justify the seizure before the law, and that the vessel will therefore be released?

"3. Having seized a vessel and brought the matter before the proper legal authority, is a Government to be held responsible because, through some mistake of the Court, either of law or fact, there has been a miscarriage of justice?

"4. Is it to be answerable for accidental delay, through which an opportunity becomes afforded to a vessel to evade the eventural decision of the Government to seize her?

"5. Is a Government to be held responsible for error of judgment in its subordinate officers, especially when these officers are at great distance, and not acting under its immediate control? Is it, under such circumstances, to be answerable for their possible negligence, or even for their misconduct?

These are questions of infinite importance to neutral nations, who may be drawn within the vortex of wars in which they have no concern, if they are not only to be harassed and troubled by the demands and importunities of jealous and angry belligerents, but are, in addition, to be held responsible-to the extent, perhaps, of millions-for errors of judgment, accidental delay, judicial mistake, or misconduct of subordinate officers, acting not only without their sanction, but possibly in direct contravention of their orders. We are not informed whether the two Governments have, in compliance with the pledge contained in the Treaty of Washington, invited other nations to adopt its Rules; but if it is to be established that these Rules carry with them a liability so extensive, I should very much doubt whether such an invitation, if made, would be attended with much success. Any decision of this Tribunal founded on such a liability would have the effect, I should imagine, of making maritime nations look upon belligerent Powers with very considerable dread. It is to be remembered that a Government cannot be taken to guarantee the event; in other

words, to be answerable at all hazards and under all circumstances for a breach of neutrality by a subject, if it occurs. In spite of the law, and of the vigorous administration of the law, offences will take place, and neither at home nor abroad, can rulers be held, under all circumstances, answerable to those who suffer from them. All that can be expected of the Government of a country is that it shall possess reasonable means to prevent offences, and use such means honestly and diligently for the benefit of those who are entitled to its protection. The terms of the Treaty, which require no more than 'due diligence,' exclude all notion of an absolute unconditional responsibility. This being so, I have some difficulty in saying that a Government, acting in good faith, and desiring honestly to fulfil its obligations, can be held liable for errors of judgment, unless, indeed, these are of so patent a character as to amount to crassa negligentia. Prolonged and unnecessary delay is, in the very nature of things, incompatible with diligence. But delay, within reasonable limits, honestly intended for the investigation of facts or the due consideration of the proper course to be pursued, is not so. Delay arising simply from accident ought not to be imputed as negligence. Accident can never be made the ground of an imputation of negligence, though it may found a legal claim where a party is in morâ."

The Lord Chief Justice examines the five questions he has just asked with minuteness and answers them in the negative. He thus concludes this portion of his argument:

"While I readily admit that the measure of diligence which a Government applies to the affairs it has to administer, if the ordinary course of its administration is negligent and imperfect, is not necessarily to be taken-any more than it would be in the case of an individual-as the measure of diligence which it is to apply in the discharge of international obligations, yet credit should be given to a Government for a properly diligent discharge of public duty. Furthermore, if a given law and a particular system of administration have been found by practical experience sufficient to protect the interests of the Government in the important matter of the public revenue, and also to insure the observance of neutral duties on the occasion of all former wars, surely it is highly unreasonable and unjust to condemn the whole system as defective and the Government as negligent for not having amended it in anticipation of future events? It must not be forgotten that since the passing of the British statute wars have occurred in all parts of the world, but no complaints of the violation of that statute have occurred till American citizens had recourse to new modes of defeating or evading it. Such, in my opinion, are the principlse by which we should be guided in deciding whether Great Britain has or has not failed to satisfy the requirements of "due diligence."

Mr. ADAMS :

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"I have now reached the moment when it seems necessary to apply myself to the question so much discussed in the arguments laid before us by the respective parties to the litigation. What is the diligence due from one nation to another in preventing the fitting-out of any vessel which it has reasonable ground to believe intended to cruise against the other? Although my own judgment is distinctly formed upon it, I feel that this is not the place in which I can, with the most propriety, explain my reasons in full. It is enough for my purpose here to say that, in my mind, the diligence manifested by all the requisite authorities of Great Britain in the case now before us, does not appear to me to be that contemplated by the language of the Treaty, because it was not in any sense a spontaneous movement. So far as the papers before us are concerned, I cannot perceive that Her Majesty's Government acted in any case excepting after represention made by the agent of the United States, and even when they did act, they confined themselves exclusively to the allegations therein made, presuming that if they could report upon them satisfactorily to themselves, their obligations were fully performed. It must be obvious that such a method of action furnishes every possible opportunity to the parties implicated, if they be at all adroit, to escape conviction by resort to equivocation, if not absolute falsehood. I can form no definition of the word diligence' which does not embrace direct original action, preserved in not merely to verify acts of offence one by one, but to establish the general fact of intent as obtained from continuous observation of the operations going on; not merely to deteet the motives for falsehood but to penetrate to the bottom of the truth. If there was a conspiracy of persons at home engaged in a treasonable effort to overthrow the Governent, would not due diligence comprehend in its meaning a close and constant observation of each and every one of the persons reasonably suspected of being engaged in it, and an immediate action to prevent any movement in advance of its maturity? Especially, would not such energy be called for in time of war, when the danger to the State from external cooperation might become extreme? Most of all, would it not be natural to expect from every Power in amity to furnish all the means it could command to render abortive every combination suspected to be forming within its borders to render assistance to the manœuvres of the malcontents at home? All these are parts of a complete whole -the maintenance of order at home and of peace abroad. That there did exist in Great Britain a combination of persons, composed partly of Americans and partly of British subjects, having for its object and intent the fitting out of vessels to carry on war with the United States, to the end of overturning the Government, is made perfectly plain by the evidence placed before us by the two parties. That Her Majesty's Government considered it no part of her duty to originate any proceedings tending to prevention, at the time of the outfit of the

Oreto, or to pass at all beyond the range of investigation especially pointed out by the agents of the American Government to its attention, appears to me certain. At a later stage of the difficulties, this policy appears to have been partially changed. The favourable effects of it are claimed as a merit in a portion of the papers before us, and I am ready at any and at all proper times to testify to my sense of its efficiency and value wherever it is shown. But after close examination I fail to see any traces of this policy in the present instance.”

Farther on, Mr. Adams thus gives his views in full on the subject of due diligence:

"These words, which are found in the first and third of the Rules prescribed by the Treaty of Washington for the government of the Arbitrators in making up their judgment, have given rise to much discussion in the preparatory arguments of the opposing parties. On the side of Great Britain an explanation of them is given in the 9th, 10th, and 11th propositions, laid down on the 24th and 25th pages of the Case. The subject is again considered in pages 21 and 22 of the volume, called the Counter-Case. It is again referred to in the 8th and 9th pages of the volume called the Argument or Summary. Lastly, it is treated in a more general way in the argument presented by Sir Roundell Palmer, counsel on behalf of Her Britannic Majesty, on the 25th of July last. On the side of the United States, an explanation is presented in pages 150 to 158 of the volume called the Case. It is again referred to in the sixth page of the Counter-Case. The subject is again treated in pages 316 to 322 of the Argument or Summary. Lastly, it is discussed in a more general way in the argument submitted by the counsel on behalf of the United States on the 5th and 6th of August. The objection which I am constrained to admit as existing in my mind to the British discussion, is that it appears to address itself for the most part to the establishment of limitations to the meaning of the words rather than to the explanation of the obligations which they imply. The objection which I am constrained to find to the American definition is that I do not find the word 'due' used in the sense attributed to it in any Dictionary of established authority. Yet it does not appear to me so difficult to find a suitable meaning for these words. Perhaps, it may have been overlooked from the very fact of its simplicity. I understand the word diligence to signify not merely work, but, to use a familiar phrase, work with a will. The force of the qualifying epithet 'due' can be best obtained by tracing it to its origin. All lexicographers derive it from the Latin verb debere,' which itself is a compound of two words de' and 'habere,' which means 'quasi de alio habere,' that is, in English, to have of or from another. Assuming this to be the primary meaning, I now come to the second step. The first having: implied something received by one person from another, the second implies equally an obligation incurred thereby. Debere,' in Latin,

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