license; nor can its advantages be cherished by Government or people at the cost of foreign nations. Indeed, when a special obligation or particular motive induces, and in some sense justifies, failure in international duty, the offending nation assumes the necessary amends and reparation to the foreign state. A notable instance of this is found in the course of the United States toward Great Britain, when the former had failed in what they admitted to be their international duty to prevent the outfit of French privateers, by reason of certain special relations to France. Compensation to Great Britain for injuries by the offending cruisers was conceded. VII. The preceding observations leave the affirmative statement of the obligations resting upon Great Britain to secure the fulfillment of this international duty to the United States, free from difficulty. (a) These obligations required that all SEASONABLE, APPROPRIATE, and ADEQUATE means to the accomplishment of the end proposed, should be applied and kept in operation by Great Britain, from the first occasion for their exhibition until the necessity was over. Great Britain should have used seasonable, appropriate, and adequate means to preserve its neutrality. Which means available as soon as required. (b) As the situation calling for the discharge of these obligations on the part of Great Britain was not sprung upon it unawares, should have been but was created by the Queen's Proclamation, (a measure of state adopted after deliberation in its own Government, and upon conference with another great European power,) the means to meet the duties of the proclaimed neutrality should, at once, have been found at the service of the Government, or promptly prepared, if deficient, that no space might intervene between the deliberate assumption of these duties by the Government, and a complete accession of power to fulfill them. British sympathy element to be con means. (c) The dangers and difficulties that would attend and embarrass the Government in the fulfillment of these duties, from the actual with insurgents an disposition of its own people, and the urgent needs of the sidered in preparing Rebel belligerents, constituted necessary elements in the estimate of the actual duties the Government must be prepared to fulfill, and in the forecast of the means to meet and cope with such dangers and difficulties. The immense temptation to British interests to absorb the share of the commerce of the world, which its great competitor possessed, the immense temptation to the Rebel belligerents to allure these interests of the British people to an actual complicity in the preparation and maintenance of maritime hostilities, and, finally, to drag the British Government into formal war against the United States, were within the immediate field of observation to Her Majesty's Ministers, and made a principal feature of the situation they had produced, and were required to control. The British Case and Counter Case have given prominence to these considerations, in deprecation of the judg ment of this Tribunal against Great Britain for the actual incompetency with which it met the duties of the situation. They tend rather to a condemnation, in advance, for negligence of Great Britain, thus advised of the duty imposed upon it, and failing to meet it successfully. (d) The aptitude or sufficiency of the system or staff of public officers at the command of the Government for the required service of this international duty to the United States; the possession of Executive power to conduct the duties of the situation of neutrality which it had been competent to create, or the need of recourse to Parliament to impart it; the force and value of the punitive or repressive legislation designed to deter the subjects from complicity in the Rebel hostilities, in violation of the Government's duties to prevent such Other elements to be considered. complicity;-all these were to be dealt with as practical elements in the demands upon the Government in fulfillment of its duties, and were to be met by well-contrived and well-applied resources of competent scope and vigor. In view, then, of all these considerations, from the issue of the Queen's Proclamation to the close of the rebellion, the Rules of the Treaty of Washington exact from Great Britain the preparation and the application, in prevention of the injuries of which the United States now complain, of seasonable, appropriate, and adequate means to accomplish that result. THE MEANS OF FULFILLING INTERNATIONAL DUTY POSSESSED BY GREAT BRITAIN. Her Majesty's Government possessed full power to carry out its selected course of action. I. That Great Britain possessed all the means which belong to sovereignty, in their nature, and, in a measure, of energy and efficacy, suitable to her proud position among the great Powers of the world, to accomplish whatever the will of the Government should decree, has never been doubted by any other Power, friendly or hostile. The pages of the British Case and Counter Case devoted to suggestions to the contrary, will not disturb this opinion of the world, and Great Britain, for the purposes of this Arbitration and the judgment of the Tribunal, must remain the powerful Nation which it is, with the admirable Government which it possesses in all other relations. Whatever infirmity shall have shown itself in the conduct of the Government, in the premises of this inquiry, it is attributable solely to debility of purpose or administration, not to defect of power. II. The whole body of the powers suitable to the regulation and maintenance of the relations of Great Britain, ad extra, to other The Prerogative of nations, is lodged in the Prerogative of the Crown. The in- the Crown. tercourse of peace, the declaration and prosecution of war, the proclamation and observance of neutrality, (which last is but a division of the general subject of international relations in time of war,) are all, under the British Constitution, administered by the Royal Prerogative. Whether, or to what extent, the common or the statute law of England may or should punish, by fines or forfeitures, or personal inflictions, acts of the subjects that thwart or embarrass the conduct by the Crown of these external relations of the nation, are questions which belong to domestic policy. Foreign nations have a right to require that the relations of Great Britain with them shall be suitably administered, and defective domestic laws, or their defective execution, are not accepted, by the law of nations, as an answer for violations of international duty. We refer to the debates in Parliament upon the Foreign Enlistment Bill in 1819, and on the proposition to repeal the Act in 1823, and to the debate upon the Foreign Enlistment Bill of 1870, (as cited in Note B of the Appendix to this Argument,) as a clear exhibition of this doctrine of the British Constitution, in the distinction between the executive power to prevent violations of international duty by the Nation, through the acts of individuals, and the punitive legislation in aid of such power, which needed to proceed from Parliament. We refer, also, to the actual exercise of this Executive power by the Government of Great Britain, without any enabling act of Parliament to that end, in various public acts in the course of the transactions now in judgment before the Tribunal: Its exercise during the rebellion. 1. The Queen's Proclamation of Neutrality, May 13, 1861.1 2. The regulations issued by the Government of Her Britanic Majesty in regard to the reception of cruisers and their prizes in the ports of the Empire, June 1, 1861; June 2, 1865.2 3. The Executive orders to detain the Alabama at Queenstown and Nassau, August 2, 1862.3 4. The Executive orders to detain the Florida at Nassau, August 2, 1862.+ 5. The Executive orders to detain the rams at Liverpool, October 7, 1863.5 6. The debate and vote in Parliament justifying the detention of the rams by the Government "on their own responsibility," February 23, 1862.6 7. The final decision of Her Majesty's Government in regard to the Tuscaloosa, as expressed by the Duke of Newcastle to Governor Woodhouse, in the following words: If the result of these inquiries had been to prove that the vessel was really an uncondemned prize, brought into British waters in violation of Her Majesty's orders made for the purpose of maintaining her neutrality, I consider that the mode of proceeding in such circumstances most consistent with Her Majesty's dignity, and most proper for the vindication of her territorial rights, would have been to prohibit the exercise of any further control over the Tuscaloosa by the captors, and to retain that vessel under Her Majesty's control and jurisdiction, until properly reclaimed by her original owners.-November 4, 1863.7 8. 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. 9. 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. 10. The rejection by Parliament of the section of the new Foreign Enlistment Bill, which provided for the exclusion from British ports of vessels which had been fitted out or dispatched in violation of the act, as recommended by the Report of the Royal Commission. This rejection was moved by the Attorney General and made by Parliament, on the mere ground that this power could be exercised by Order in Council.10 That these acts were understood by the Government of Great Britain to rest upon the Prerogative and its proper exercise, is apparent from the responsible opinions of the Law Officers given upon fitting occasions. 1. In regard to the Alabama, the Law Officers of the Crown wrote to Earl Russell on July 29, 1862: We, therefore, recommend that, without loss of time, the vessel [the Alabama] be seized by the proper authorities; after which an opportunity will be afforded to those interested, previous to condemnation, to alter the facts, if it may be, and to show an innocent destination of the ship." 2. In the case of Laird's rams, the Law Officers of the Crown wrote to Earl Russell, on October 19, 1863: We are of the opinion, with respect to the first question submitted to us, that the answer to parties who have a right to make the inquiry should be that the seizure [of the rams] has been made by the orders of Her Majesty's Government under the authority of the provisions of the Foreign Enlistment Act.12 1 Brit. App., vol. iii. p. 17. 2 Ibid., pp. 17-22; ibid., vol. v, pp.125–131. 3 Ibid., vol. i, p. 203. 4 Ibid., p. 29; ibid., vol. v, p. 55. 5 Ibid., vol. ii, p. 384, et. seq. 11 Brit. App., vol. i, p. 200. 6 Am. App., vol. v, pp. 472-500. 7 Brit. App., vol. i, p. 327. 8 Ibid., vol. iii, p. 20. 9 Ibid., vol. i, p. 657. 10 Debate in Parliament, Note B, App. to this Argument. 12 Ibid., p. 405. 3. In the House of Commons, on February 23, 1864, the Solicitor General, speaking of the seizure of the rams and defending the action of the Government, said: "We have done that which we should expect others to do for us, and no more." 921 In the same debate the Attorney General, Sir Roundell Palmer, said: The honorable gentleman asks what right the Government had to detain the ships. [Mr. Seymour Fitzgerald: “Hear, hear."] The honorable gentleman cries, “Hear;" but I do not hesitate to say boldly, and in the face of the country, that the Government, on their own responsibility, detained them.2 He, Sir Roundell Palmer, said further: In a criminal case we know that it is an ordinary course to go before a magistrate, and some information is taken of a most imperfect character to justify the accused's committal to prison for trial, the prisoner being remanded from time to time. And that course cannot be adopted in cases of seizing of vessels of this description. The law gives no means for that; and therefore it is that the Government on their own responsibility must act, and have acted, in determining that what had taken place with regard to the Alabama should not take place with respect to these ships.3 4. In the House of Commons, on the 28th of April, 1864, the Attorney General, Sir Roundell Palmer, defending the action of the Government in regard to the Tuscaloosa, as expressed in the dispatch of the Duke of Newcastle, before quoted, said: Can it be said that a neutral sovereign has not a right to make orders for the preservation of his own neutrality, or that any foreign power whatever violating these orders, provided it be done willfully or fraudulently, is protected to any extent by international law within the neutral territory, or has any right to complain on the ground of international law of any means which the neutral sovereign may see fit to adopt for the assertion of his territorial rights? By the mere fact of coming into neutral territory in spite of the prohibition, a foreign power places itself in the position of an outlaw against the rights of nations; and it is a mere question of practical discretion, judgment, and moderation, what is the proper way of vindicating the offended dignity of the neutral sovereign.1 5. On the 26th of August, 1864, the Attorney and Solicitor General, writing particularly of the proposed executive order before referred to, in regard to the sale of belligerent war vessels in the ports of Great Britain, used these words: The enforcement of such orders and directions, concerning as they do ships which, on their entrance into any port of Her Majesty, will have the character of public ships of war of a foreign Power, and will not yet have become the property of any of Her Majesty's subjects, does not belong to the municipal law of this country, but to the same branch of the Royal Prerogative, by virtue of which Her Majesty has the power of making peace and war and generally of conducting and controlling the external relations of this country with foreign Governments.5 6. On the 21st of April, 1865, the Law Officers of the Crown thus wrote to Earl Russel, in reply to a request for instructions to Governor Darling: With respect to his Excellency's request that he may receive instructions as to the propriety of executing any warrant under the Foreign Enlistment act on board a Confederate (public) ship of war, we are of opinion that, in a case of strong suspicion, he ought to request the permission of the commander of the ship to execute the warrant; and that, if this request be refused, he ought not to attempt to enforce the execution; but that, in this case, the commander should be desired to leave the port as speedily as possible, and should be informed that he will not be re-admitted into it.6 V. That the faculties for this preventive service are inseparable from the Executive power of every Government, in the conduct of Preventive power its foreign relations, is proved by the concurrent evidence inseparable from the furnished in the proofs laid before the Arbitrators, respect. power. ing the means possessed by the principal nations of Europe, and by the Am. App., vol. v, p. 496. 2 Ibid., p. 477. 3 Am. App., vol. v, p. 470. idea of executive 4 Ibid., p. 570. United States and Brazil as well, for the fulfillment of the international duties of neutrality. The full power was exercised by the administration of President Washington before any such authority was imparted by Congress, and the later explicit communication of such authority by the legislation of the United States rested upon the propriety of corroborating Executive power under a Government without any personal prerogative in its Executive head. This distinction was well understood in the British Parliament, and is insisted upou in the debate upon the Foreign Enlistment Bill of 1819, set forth in Note B of the Appendix to this Argument. It was to this consideration that the preventive vigor which constitutes so importaut a difference between the statutes of the United States and Great Britain owes its origin. Peculiar advan tages of Her Majes the exercise of Ex ty's Government for ecutive power. VI. The limited territory of Great Britain, its complete system of magistracy, its extensive and ramified organization of commercial and port regulations, for the inspection and control of its immense customs revenue, shipping, and navigation, its network of railroads and telegraphs, which brought every part of its narrow territory under the eye and hand of the central administration, gave to the Government the instant and universal means of executing its purposes of international duty, without chance of miscarriage or need of delay. Omnipotence of Parliament. VII. The omnipotence of Parliament, the great principle of the British constitution, was always at the service of the Government, to supply, extend, or confirm its authority in the mater of international duty, and the means and agencies of its prompt, vigilant, and adequate exercise. Parliament was in session at the time of the Queen's Proclamation, and took notice, at the moment, of the effects it had produced in the law of piracy as applicable to the maritime violence it would induce, as well as of the probable maritime instruments that the Rebel interests would press into their service. Parliament was in session, also, when the Florida and Alabama were in course of construction, when the Government was deliberating upon their detention, and when they actually escaped unimpeded. The alacrity with which Parliament could respond with immediate and effective legislation at the call of the Government, and upon the occasion of opening war calling into exercise the fulfillment by Great Britain of its international duty of neutrality, is clearly shown by the debate and action of Parliament in the passage of the new foreign-enlistment act of 1870. We refer again to Note B of the Appendix to this Argument. Upon the whole, then, it is not to be gainsaid that the Government of Great Britain had at its command every means in their nature and in their energy and scope that any Power needs or possesses for the fulfillment of the obligations assigned to it within the premises of this Arbitrati on, by the Treaty of Washington or the law of nations. THE DUTY OF GREAT BRITAIN IN ITS TREATMENT OF THE OFFENDING VESSELS AFTER THEIR FIRST ILLEGAL OUTFIT AND ESCAPE FROM BRITISH PORTS. I. This subject, discussed at some length in the British Case and Counter Case, may be disposed of by a few elementary propositions: (a) It is undoubtedly consonant with principle and usage, that a public-armed vessel of a sovereign power should be accorded certain privileges in the ports and waters of other national war is political and jurisdictions not accorded to private vessels. The substance of these privileges is a limited concession of the character The privilege of ex-territoriality ac corded to a vessel of discretionary. |