resents these governments as preventing not only the armament, but also the construction of cruisers. I can hardly suppose the writer ignorant of the meaning of the term corsaire, the term used in the laws in question, and which never has but one meaning, that of privateer, or in French phrase that of a "vaisseau armé en course par des particuliers, mais avec l'autorisation du gouvernement." Neither of these countries has any law against the construction of cruisers. Such a statement, therefore, ought not to have been made. The argument of the United States winds up the comparison of the British law with that of other countries, with the following remarkable observations :3 The institutions of Italy, Brazil, Switzerland, France, Spain, Portugal, the Netherlands, and all other governments of Europe, indeed, except Great Britain, expressly assume, as to the institutions of the United States, that volunteer and unauthorized military and naval expeditions, undertaken in a neutral country, are to be restrained, because tending to involve such country in war with the country aggrieved. Infringements of the law are punished mainly for that reason, including the protection of the national sovereignty. Hence, in all those countries, except Great Britain, the punitive law is a secondary fact; the primary fact being the preventive action of the government. The United States perfectly understood this, the true relation of things, and while they indicted persons, and arrested ships, they did not, when occasion required action, rely on such inerely punitive, or at most auxiliary, means, but called into play the armed forces of land and sea to support the Executive in summary acts of prevention by force for the maintenance not only of the sovereignty but of the neutrality of the Government. Neither Lord Russell, in his correspondence with Mr. Adams, nor the framers of the British case, appear to have had any clear conception of these higher relations of the subject, although distinctly and explicitly stated in the best works of international law of Great Britain herself. Great Britain alone pretends that punitive law is the measure of neutral duties; all other governments, including the United States, prevent peril to the national peace through means of prerogative force, lodged, by implied or express constitutional law, in the hauds of the Eexcutive. A stranger misrepresentation could scarcely have been penned. The assertion that the institutions of Great Britain do not assume that volunteer and unauthorized military and naval expeditions, undertaken in a neutral country, are to be restrained, is without the shadow of a foundation. It is equally untrue and unjust to say that Great Britain pretends that punitive law is the measure of neutral duties. Great Britain pretends nothing of the kind. The best answer to these unwarranted assertions is the fact, that the Alabama was attempted to be seized; that the Alexandra was seized; as were the Pampero and the Birkenhead rams, and the Florida at Nassau; by virtue of the preventive power alone; and that, if in any of those cases resistance had been offered, or force required, force would, as a matter of course, have been resorted to immediately to enforce the law. But while the United States thus impugn the efficacy of the British law, and dwell upon the executive, as contradistinguished from legal, power possessed by their own, and, as they allege, by foreign governments-of which, by the way, they offer no proof whatever-at another time, with startling inconsistency, they assert that the governmeat of Great Britain possesses this very executive power, and make the omis sion to put it in force the subject of vehement complaint. The imagination of the writer must have been singularly lively, while Argument of the United States, p. 72. Littré, ad verb.; and see Merlin, "Répertoire," tit. "Prises maritimes." his conscience must have slept, who could venture to put on paper the following passages:1 No independent state exists, either in Europe or America, encumbered with constitutional incapacity in this respect. Violations of neutrality are issues of war and peace. Whatever power in a state declares war, or makes peace, has jurisdiction of the issues of peace and war, including of course all violations of neutrality. In point of fact, such authority is not a quality of despotic government only: it belongs equally to the most constitutional government, as appears, for instance, in the political institutions of constitutional republics like Switzerland and the United States, and in constitutional monarchies, like Italy and Brazil. The selection by the counsel of the United States of the countries of the four other members of the tribunal was, I presume, accidental. But let us go on: The counsel of the United States submit these propositions as undeniable and elementary truths. Yet the case and counter-case of the British government assume and persistently argue that the sole instrument possessed by the British government to enforce the performance of neutral obligations, at the time of the occurrences in question, was a particular act of the British Parliament. Every government in Europe or America, except Great Britain, asserts and exercises authority to prevent its liege subjects (and à fortiori commorant aliens) from doing acts which tend to involve it in a war with any other government. But the British government maintains that the sovereign state of Great Britain and Ireland, the imperial mistress of the Indies, the proudest in fame, the richest in resources, and (including her transmarine possessions) the most populous of the great states of Europe, does not possess constitutional power to prevent mercenary lawbreakers among her own subjects, or bands of desperate foreign rebels, commorant on her soil, from dragging her into acts of flagrant violation of neutrality, and thus affording, or tending to afford, just cause of war to other foreign states! And such is the defense of Great Britain in answer to the reclamations of the United States. It would be difficult to find any other example of a great state defending itself against charges of wrong by setting up the plea of its constitutional incompetency and incapacity to discharge the most common-place duties of a sovereign state. Great Britain is not in that condition of constitutional disability which her ministers pretend. We find, on the most cursory observation of the constitution of Great Britain, that the declaration of war, the conclusion of peace, the conduct of foreign affairs, that all these things are in Great Britain elements of the prerogative of the Crown. We cannot believe and do not concede that in all these greater prerogative powers there is not included the lesser one of preventing unauthorized private persons from engaging in private war against a friendly foreign state, and thus committing Great Britain to causes of public war on the part of such foreign state. If the exercise of such power by the Crown involves derogation of the rights of private persons which ministers fear to commit, they should obtain a proper act of Parliament, either for antecedent general authorization or for subsequent protection, all which is within the scope of the theoretic omnipotence of Parliament. The British ministers do not scruple to suspend the privileges of the writ of habeas corpus, whether with or without previous parliamentary authorization, and whether in the United Kingdom, or in the colonies, on occasion of petty acts of rebellion or revolt, that is, the case of domestic war: a fortiori they should and may arrest and prevent subjects or commorant foreigners engaged in the commission of acts of foreign war to the prejudice of another government. Is it possible to deny or to doubt that British ministers might as well do this as the ministers of Switzerland, Italy, Brazil, and the United States in like circumstances? Again Switzerland, Italy, Brazil, and the United States— Has the Queen of the United Kingdom of Great Britain and Ireland less executive power than the President of the United States? And if she have less, could not the deficient power be granted to her by act of Parliament, just as readily as similar executive power, in this relation, has been granted to the President of the United States by their Congress? But there is no such deficiency of power in the British ministers. Their own conduct in pertinent cases proves conclusively that they have the power, and can exercise United States Argument, pp. 43–45. it, when they choose, without affording occasion of any serious doubt or denial of the constitutionality of their acts. Be it remembered that the exense of the British government, for omitting to detain the Alabama and other confederate cruisers, was the alleged want of power to act outside of the foreign-enlistment act. And yet, subsequently to the escape of the Alabama from the port of Liverpool, on occasion of the construction in the ports of Great Britain of certain other vessels for the confederates, commonly spoken of as the Laird rams, the British government seized them upon its own responsibility in virtue of the prerogative power of the Crown, and so prevented their departure to make war against the United States. Sitting on this tribunal as in some sense the representative of Great Britain, I cannot allow these statements to go forth to the world without giving them the most positive and unqualified contradiction. They are wholly uncalled for, as being unnecessary to determine the question whether, in particular instances, Great Britain had been wanting in diligence. They are not only unjust, but in the highest degree ungenerous, (I use the mildest expression I can find.) on an occasion when Great Britain is holding out the hand of friendship and conciliation to America, and though, perhaps, at a heavy sacrifice, is seeking to bury all sense of past grievance by submitting the claims of the United States to peaceful and friendly arbitration. But it is not only that these ob servations are ungenerous and unjust. There is in this extraordinary series of propositions the most singular confusion of ideas, misrepre sentation of facts, and ignorance, both of law and history, which were perhaps ever crowded into the same space, and for my part I cannot help expressing my sense, not only of the gross injustice done to my country, but also of the affront offered to this tribunal by such an attempt to practice on our supposed credulity or ignorance. It is not true that "the case and counter case of the British government assume and persistently argue that the sole instrument possessed by the British government to enforce the performance of neutral obligations, at the time of the occurrences in question, was a particular act of the British Parliament." It is not true that the British government has ever "maintained that Great Britain did not possess constitutional power to prevent mercenary subjects or foreign rebels from dragging her into acts of flagrant violation of neutrality." It is not true that a great state" is here "defending itself against charges of wrong by setting up the plea of its constitutional incompetency and incapacity to discharge the most common-place duties of a sovereign state.” The transparent fallacy which runs through the whole of this series of declamatory assertions consists in confounding infractions of the municipal law with infractions of neutrality properly so called. Though, by convention between the two governments, the equipping of a ship without arming may have acquired, ex post facto, for the purpose of the present arbitration, the character of a vio lation of neutrality, no agreement can change the substantive reality of things belonging to the past. Now, at the time the occurrences took place on which the present claims arise, to equip a ship in the way of trade, though intended for the service of a belligerent, was not, as I have already shown, and as Mr. Adams himself, in all fairness, fully admits an offense against international law, and therefore was not a vio lation of neutrality. While, therefore, in a case of actual violation of neutrality, as by sending forth an armed ship, or a ship immediately about to be armed, for the purpose of immediate warfare, the executive power might, ex proprio vigore, interfere, and if necessary by force, to prevent such a proceeding, the seizure of a vessel unarmed, and not im mediately about to go forth, and in respect of which, therefore, no breach of neutrality had taken place, could only be done by virtue of the munici pal law as constituted by the act of Parliament. But if a seizure was to be made under the act, it was necessary that proof should be forthcoming to justify and uphold it. Therefore it was true that, as regarded the equipping of ships, the powers of the executive were limited to cases in which proof of a breach of the act was forthcoming. Therefore it was that, in the case of the Florida, the government, thinking there was not sufficient evidence of belligerent purpose, abstained from seizing, and in that of the Alabama delayed the seizure for a time. Therefore it was that, in the later cases of the Alexandra and the rams, the govern ment, being advised that the evidence was sufficient, proceeded to seize. Hence, in discussing the question whether it was at that period, and in the then admitted state of international law, the duty of the government to seize the vessels in question, it is necessary to refer to the foreign-enlistment act to ascertain what were the powers of the government. The distinction is a very obvious one, and one which persons must be, I should think, willfully blind not to see. The assertion, coming from the quarter from which it proceeds-the government of a great republic, where all executive power, I should have imagined, would be clearly defined by law and exercised in subordination to it-that the British government should have proceeded, independently of and, if necessary, in defiance of the law, to seize ships and arrest subjects as well as foreigners engaged, as it is termed, in acts of foreign war to the prejudice of another government, surprises me, I must say, not a little; but when, as the ground of such an assertion, I am told that "British ministers do not scruple to suspend the privileges of the writ of habeas corpus, whether with or without previous parlia mentary authorization, whether in the United Kingdom or in the colonies, on occasion of petty acts of rebellion or revolt; that is, the case of domestic war," I find myself lost in amazement, and seek in vain to discover what can possibly be meant by so strange a statement. War, whether it be domestic or foreign, is of course war; and, in regard to those who are actually engaged in war, the law of war necessarily supersedes the civil law and civil rights, and would per se, suspend the privileges of the habeas corpus act. But if it is meant that, even in time of war, the executive could, as regards persons not taking part in the war, or not coming within the operation of martial law, suspend the habeas corpus act without an act of Parliament, the assertion is equally unfounded and surprising, whether looked at in an historical or in a legal point of view. But a discovery has been made by those who drew up the United States argument which, I must say, appears to me, as an English lawyer, surpassing strange. It is, that that which could not have been done toward seizing vessels under the foreign-enlistment act for want of evidence necessary to support a seizure under that act might have been done with a high hand, by virtue of the prerogative of the Crown; in support of which strange doctrine the following instances are given, in which it is alleged that what was done was done by virtue of the prerogative. Such are: The Queen's proclamation of neutrality of May 13, 1881. The regulations issued by the government of Her Majesty in regard to the reception of cruisers and their prizes in ports of the empire, June 1, 1861, June 2, 1865. The executive orders to detain the Alabama at Queenstown and Nassau, August 2, 1862. The executive orders to detain the Florida at Nassan, August 2, 1862. The executive orders to detain the rams at Liverpool, October 7, 1863. The debate and vote in Parliament justifying the detention of the rams by the goverument "on their own responsibility," February 23, 1862. The executive order that "for the future no ship of war belonging to either of the belligerent powers of North America shall be allowed to enter or to remain or to be in any of Her Majesty's ports for the purpose of being dismantled or sold," September 8, 1864. The final executive orders to retain the Shenandoah in port, " by force if necessary," and to " forcibly seize her upon the high seas," September and October, 1865. In addition to which the final decision of the government with regard to the Tuscaloosa is referred to, as also the opinion of the law officers, advising the seizure of the Alabama at Liverpool, and the rejection, at the instance of the law officers, of the clause proposed to be inserted in the neutrality act of 1870, for prohibiting the entry of vessels, equipped in contravention of the act, into British ports. While I quite see how likely statements of this sort are to produce an effect on the minds of persons not familiar with the constitutional law of Great Britain, I am at a loss to understand how counsel, familiar with English law, can take upon themselves to make them. The limits of the royal prerogative are ascertained and defined; they certainly do not include a power to interfere with the liberty, property, or industrial pursuits of the subject, except where such power is expressly conferred by law. In the instances given, with the exception of the Queen's proclamation, as to the effect of which I have already spoken, and the regulations as to the admission of belligerent vessels to British ports, and the accommodation there to be afforded to them, which are undoubtedly matter of royal prerogative, and the order in respect of the Shenandoah, which was, as will hereafter be seen, a most excep tional case, every instance enumerated was, though in one sense an act of the executive, yet an act done by virtue of power conferred by the foreign-enlistment act, and not by virtue of the prerogative. As an English judge and lawyer, I affirm that, short of their going out as a hostile expedition, in which case force might undoubtedly be used, these vessels could not have been seized under the exercise of prerogative power. tween Great Britain to observance of neutrality. Throughout the statements of the United States a comparison is drawn Comparison be between the conduct of the United States and that of Great and United States as Britain in reference to the maintenance of neutrality. When the British government retorts with instances of American default in this respect, the answer comes that it is Great Britain, not the United States, that is now on its trial. And this is perfectly true; but when the plaintiff seeks to prejudice the defendant in the eye of the judge and of the world, and at the same time to secure favor to himself by holding up his own conduct as righteous and immaculate, whereby to make that of the defendant appear more black, it is but fair that his pretensions should be submitted to the criticism to which he justly exposes himself. The argument of the United States asks at the hands of this tribunal for a rigorous enforcement of the obligations of neutrality against Great Britain, on the ground that, while the latter has been unmindful of its duties as a neutral, the United States have maintained a consistent and unvarying course in the most exemplary fulfilment of those duties. I select one from many passages in which a comparison between the two nations in this respect is invidiously made: Qualis ab incepto talis ad finem. With consistency unwavering, and at whatever hazard of domestic or foreign inconvenience, even if it were friendly powers like France and Great Britain with which we were thus brought into contention, the United 1 United States Argument, pp. 324, 325. |