WRIGHT— POWER TO MEET RESPONSIBILITIES. 267 



not justify itself for a failure in due diligence on pleas of in- 

 sufficiency of the legal means of action which it possesses." ^ 

 Defining due diligence the Tribunal said : - 



"The due diligence referred to in the first and third of the said rules (of 

 Article V of the Treaty of Washington) ought to be exercised by a neutral 

 government in exact proportion to the risks to which either of the belligerents 

 may be exposed from a failure to fulfill the obligations of neutrality on 

 their part." 



The XIII Hague Convention of 1907 in Articles 8 and 25 practically 

 repeated the first and third rules of the treaty of Washington but 

 substituted the phrase " means at its disposal " for "due diligence." 

 The drafting committee of the Hague Convention merely noted 

 that " The expression due diligence, which has become celebrated 

 by its obscurity, since its solemn interpretation, has been omitted." * 

 Apparently no essential difiference in meaning was intended. 

 " Means at its disposal " do not mean merely those provided by 

 existing legislation but those which the legislature ought to provide. 

 In spite of the committee's disparaging remark, the term " due 

 diligence" has continued in usage.* 



no. Enforcement by the States. 



The states retain full power of criminal legislation except as 

 expressly or impliedly limited by the federal Constitution. Before 

 the Constitution the states' powers in this regard were almost ex- 

 clusive and Congress urged them to provide for the punishment of 

 offenses against the law of nations. In 1784 the court of oyer and 

 terminer of Philadelphia found one DeLongchamps guilty of "a 

 crime against the whole world " for committing an assault upon the 

 Secretary of the French legation.^ The court declared the person 

 of a public minister and his " comites " or household " sacred and 

 inviolable." " Whoever," said the court, " ofifers any violence to 

 him not only atTronts the sovereign he represents but also hurts 

 the common safety and well-being of nations." The court found 



1 Malloy, Treaties, p. 719. 



^ Ibid., p. 718; Moore, Int. Arb., p 4082. 



3 Scott, ed., Reports of Hague Conferences, p. 845. 



* Borchard, op. cit., p. 278. 



5 Res Publica v. DeLongchamps, i Dall'. Ill; Moore, Digest, 4: 622. 



