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the Confederate States, whom Her Majesty acknowledges as belligerents, and whose agents in the United Kingdom enjoy the benefits of our hospitality in quiet security, remains the same. It is a proceeding totally unjustifiable, and manifestly offensive to the British Crown."1 II. The next great practical failure to fulfill its duty to the United States, on the part of Great Britain, was in its omission to Failure to ascerascertain its resources of Prerogative and statutory author- tain extent of Prerogity for maintaining its neutrality, and to announce to its powers. subjects and to the Rebel agents the possession of these powers and the determination to use them. If an examination had satisfied the Government that it was not endued with the requisite faculties of prevention, it should have put them in practice, and scattered the machinations against its peace and honor, and against the maritime interests of the friendly power to which it was so closely engaged to observe its international duty. If, on the other hand, such examination disclosed doubts or defects of preventive Power, it should have obtained from Parliament the adequate authority. If the Government received from its principal Law Officers an interpretation of the Prerogative and of the Foreign Enlistment Act, that put at its service the seasonable, appropriate, and adequate means for the prevention of the acts and occurrences within its jurisdiction, which the Rules of the Treaty prescribe, it should have placed the ship-builders of Liverpool and the Clyde in the predicament of open contemners of the laws of the realm, and of actual conflict with the whole power of the Government.

If, on the other hand, these Law Officers advised a corroboration of the preventive power of the Government, it should have been granted by statute. We have searched in vain for any evidence in these regards of "due diligence" on the part of the Government at the opening of the Rebel hostilities. We find inflammation of popular sentiment urging a participation in those hostilities, and instant occasion for the Government to be energetic and alert. We find earnest and persistent appeals to take such a position made to the Government by the representatives of the United States. In 1870, when the war between France and Germany broke out, we find Great Britain enacting a vigorous Foreign Enlistment Statute, and exhibiting zeal and alacrity in the exercise of its new powers, and in putting in motion all the requisite prerogative authority by Orders in Council.

Suppose, for a moment, that in May, 1861, in sequence of the Queen's Proclamation, the Attorney General of England had brought into Parliament a Foreign Enlistment Bill to place at the service of the Executive Government the means of maintaining toward the United States the duties of neutrality which that Government by the Proclamation had assumed-such a Bill as was passed in 1870. Suppose, in so doing, he had, speaking the purposes and motives of the Executive Government, said:

I think the House will agree that, upon the breaking out of this unexpected and most calamitous war, Her Majesty's Government would have been very much to blame if they had delayed for a single day to introduce this measure.

Suppose other members of the Government had supported the Bill by arguments like these:

*

He need not adduce arguments to show how unjustifiable and monstrous it would be for British subjects to take part in hostilities, when the avowed policy of the Government was that of perfect neutrality. A similar law existed in the United States; while on the continent, Governments were able to prevent their subjects from violating neutrality.

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Am. App., vol. i, p. 631; cited on p. 309, Case of the United States.

Attorney General Collier in Parliament, August 1, 1870. Note B, Appendix to this Argument.

The measure gave power to the Secretary of State to detain a suspected ship; as also to local officers at the ports, who would report to the Secretary of State, so as to cast on him full responsibility. It embodied all the recommendations of the Report, with the exception of that relating to the reception of vessels into British ports, and this object could be accomplished by Orders in Council.

Suppose arguments against its interference with freedom and shipbuilding had been answered as follows:

The fact that war was raging (on the Continent) was no reason for not amending our municipal law in points where this was notoriously defective. It was ridiculous to say that a builder did not know that the vessel he was building was for war purposes; and it was a less evil that the ship-building interest should suffer a little, than that the whole nation should be involved in difficulties.

It would not occur in one case out of a thousand that the builder of a ship would have the smallest difficulty in proving what his contract was, and under what circumstances it was undertaken.

The object of the clause was to prevent the escape of suspected ships from the harbors of the kingdom till the Secretary of State has been communicated with. The clause gave an ad interim power of seizure.3

The object was to give power to any officer who saw a ship about to escape to prevent such escape.

The officers named would be able to seize a vessel without special instructions, in order that such vessel might not be allowed to escape. It was a most important power. The clause was copied from the Merchant Shipping Act, which had been in force for twenty years without any complaint.1

Suppose all this, and we should have seen a performance by the British Government of the duty of "due diligence" in the particular now insisted upon, for the absence of which we now inculpate that Nation. But we should have seen no Florida, or Alabama, or Georgia, or Shenandoah upon the ocean, and redress for injuries would never have needed to be sought from the justice of this Tribunal by the United States.

But we are not left to argument to show how wide and beneficial would have been the practical effects of such action by the British Government, at the opening of the rebel hostilities, in checking and frustrating the proclivities of British subjects to aid and invigorate the maritime war against the United States, nor how readily the subordinate and local official staff could have worked out these provisions of the law. Some extracts from the correspondence of the German Einbassador and the British Foreign Secretary will exhibit this influence and its results in the clearest light. Count Bernstorff, under date of October 8, 1870, wrote to Earl Granville an elaborate representation on the subject of the export of contraband of war, and therein speaks as follows:

According to Your Excellency's own admission the executive has the power to prohibit the export of contraband of war. But you state the practice is to make use of this right only in the interest of England, as in the case of self-defense. A letter of the Duke of Wellington to Mr. Canning, dated the 30th of August, 1825, and reprinted in a London newspaper immediately after the indiscretion of Count Palikao, refutes this assumption, proving that England, as a neutral, has repeatedly prohibited the export of arms by an Order in Council, "according to the usual practice," as the renowned Duke says. In one part of his letter the words occur, "I am afraid, then, that the world will not entirely acquit us of at least not doing our utmost to prevent this breach of neutrality of which the Porte will accuse us.”

Practice, consequently, is in itself not opposed to the adoption of a measure desired by us for the prohibition of the sale of arms to our enemy. But the law allows Government a certain latitude of consideration to make use of their power according to circumstances. Your Excellency is, however, of the opinion that the present customs

1 Lord Halifax in Parliament, August 8, 1870. Note B, Appendix to this Argument. 2 Viscount Bury in Parliament, Aug. 1, 1870, ibid.

3 Solicitor General Coleridge in Parliament. August, 1870, ibid.

4 Attorney General Collier in Parliament, August 3, 1870. Note B, Appendix to this Argument.

system would require a radical reform in order to prevent the export of contraband of war. I gladly concede that the lax method of dispatch and control on the part of the custom-house authorities which has become usual in the interest of an unfettered commercial intercourse, bars the energetic carrying out of a measure prohibiting the exportation of contraband of war. But, on the other hand, I think the very fact of such laxity tends to show that, for the purpose of rendering an Order in Council effectual, no new organization would be required, but simply more stringent instructions for the customs and harbor authorities, reminding them of the existing regulations.

In concluding his reply under date of October 21, 1870, Lord Gran

ville says:

Your Excellency will, I think, admit that though Her Majesty's Government are not prepared to change the practice of the country in regard to neutrality, they have been vigilant in watching and checking any symptoms of violation by British subjects of existing law. Some weeks before your excellency drew attention to the cases of the Hypatia and Norseman, the proper authorities of this country had been engaged in investigating them, and the watchfulness shown on those occasions has doubtless been the reason that no attempt has been made to sell or dispatch vessels in contravention of the Foreign Enlistment Act. A report which had reached Her Majesty's Government that attempts were being made to enlist Irishmen for military service in France was acted upon with the greatest promptitude by the authorities of the Home Office, even at a time when, as it appears from the note which you addressed to me on the 11th instant, it did not appear to you that much importance was to be attached to the rumors. I can assure Your Excellency that no effort shall hereafter be spared to deal promptly with any actual or contemplated infractions of the law.

We respectfully submit that, in the failure of the disposition and the action of due diligence" in the matters insisted upon under this head of the argument, the conduct of Great Britain merits and must receive the condemnation of the Tribunal, and must render that nation responsible therefor to the United States in its award.

Failure to exercise

tive.

III. The next great failure of Great Britain "to use due diligence to prevent" the violation of its neutrality, in the matters within the jurisdiction of the Tribunal, is shown in its entire the Royd Prerogaomission to exert the direct Executive authority, lodged in the Royal Prerogative, to intercept the preparations and outfits of the offending vessels, and the contributory provisions of armament, munitions and men, which were emitted from various ports of the United Kingdom. We do not find in the British Case or Counter Case any serious contention but that such powers as pertain to the Prerogative, in the maintenance of international relations, and are exercised as such by other great Powers, would have prevented the escape of every one of the offending vessels emitted from British ports, and precluded the subsidiary aids of warlike equipment and supplies which set them forth, and kept them on foot, for the maritime hostilities which they maintained. The contention of the British Case and Counter Case on this head is somewhat indefinite and uncertain, but substantially comes to this: (1) a disparagement of the vigor and extent of this Prerogative; and (2) a deprecation of its vigorous or extensive exercise, for reasons of domestic interest or policy.

We have given full consideration to the question of the possession of this Prerogative authority under the head devoted to the subject as a proposition of law, and have called the attention of the Arbitrators to the resort to it, from time to time, taken by Her Majesty's Government during the progress of the transactions under review. We are unable to see any discrimination between the occasions and the means for direct interposition of this power of the Government, as we insist upon them, and the occasions on, and means by, which it was actually applied by the Government, except as such discrimination was controlled by choice or disposition. We beg the careful attention of the Arbitrators to the debates in Parliament, cited in note B of the Appendix to this Argument, as bearing upon this question of the Prerogative of the Brit

ish Crown in all matters of international obligation. These debates are not referred to by us for the sake of the individual opinions or reasoning of the eminent members of various British administrations, and of the leading members of Parliament, that took part in them. Each of these debates is upon an occasion of definite action by Parliament on the subjects before it, which commits the national will and authority in support of the propositions insisted upon in the debates, and in the sense in which we insist upon them here.

But, manifestly, there is but one answer that this Tribunal can accept for the omission to use the Royal Prerogative in regulation and control of the situation of neutrality, which had been produced by its intervention, either in respect of its debility or the impolicy, for domestic reasons, of resorting to it. This answer is, a supply of the power, thus failing or intermitted, by other forms of accredited and safe authority that was also seasonable, appropriate, and adequate. This brings us to the consideration of the mode in which existing statutory powers were wielded, and the plenary authority of Parliament to improve or extend them, was dealt with by Her Majesty's Government.

IV. The insufficiency and inefficacy of the Foreign Enlistment Act of Great Britain, in force during the whole period of the American Rebellion, if it included the whole preventive power possessed by Her Maj esty's Government for the fulfillment of the duties prescribed by the Three Rules of the Treaty, are both undisputed and indisputable. The absolute omission from its provisions of all Executive authority, except in subservience to the judicial proceedings and punitive purposes of the law, furnishes to our minds a strong argument, if any further were needed, that, as was held in the Parliamentary discussion which attended its passage, its provisions were punitive and punitive only, because the direct authority of interception and prevention was possessed by the Crown.

The Foreign Enlist ment Act was an insufficient means for

tional duties, and its

ished by judicial con

requirements.

But if, in addition to this debility of the Statute as a resort for seasonable, appropriate, and adequate means of fulfilling the international duty in question, apparent upon any construc performing internation of the Statute, we take the Statute, impoverished and efficacy was dimin emasculated, (1,) by judicial construction of its narrow struction and official reach to punish and deter; (2,) by the impossible requirement in the matter of evidence: that is to say, the requirement of voluntary evidence sufficient to convict, before accusation or arrest of person or vessel; and (3,) by the timidity, alike of Cabinet Ministers and Custom House Officers, and all intermediate Executive functionaries, in undertaking the execution of the law, for fear they should themselves be berated for their audacity, or condemned in damages as trespassers and law-breakers, for daring to interfere with the domestic liberty of British subjects to engage in war against American commerce, while their Government was at peace with the United States-taking, we say, the Statute, as thus construed and administered, there can be no pretension that the furnishing of a Government, as the sum of its authority, with powers so unseasonable, inappropriate, and inadequate, for the fulfillment of this international obligation, was compatible with that obligation as enjoined by the Three Rules of the Treaty.

Now, the true measure of the force and value of a statute as an expression of the sovereign's will and purpose, is to be found in its judicial interpretation and its practical execution. Some pains have been taken in the British Case and Counter Case to insist upon the equality with, or perhaps the superiority over, the Neutrality Act of the United States shown in the Foreign Enlistment Act of Great Britain. Compared

upon the text of their provisions, the great feature of preventive power in the American statute, stamps with manifest distinction these two systems of legislation. But compared in the practical efficiency which judicial interpretation and administrative execution have imparted to the American statute, as a part of its substantive vigor and value, and in the debility by the same means infused into the British Act, they are scarcely to be recognized as parallel legislation.

Certain great features mark the American Act as a working means to the Government for fulfilling the international obligations Contrast between within its purview:

this act and the American statute as

ministered.

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1. The direct and unlimited administrative power vested construed and in the President as the Executive head of the Government, to intercept, arrest, and prevent, by strong hand, the meditated international injury, by detaining, upon discretion, suspected instruments of such purposed injury.

2. The personal inflictions and the property forfeitures visited upon participation in the offense at any stage, and in any degree, however far short of completion in fact, or however small in agency, by the American Act as interpreted and applied, provided the project or purpose when completed and combined is illegal, gave the Government the means of punitive intervention, with effect and in time, to intercept and frustrate, even by judicial means, the projected schemes.

3. The initiation of judicial proceedings at early stages of illegal enterprise gave at once the opportunity to coerce proof by compulsory process, and made it the necessary interest of the parties interfered with to establish the innocent, or abandon the guilty, design.

4. The American statute stimulated the zeal of direct private interest to the service of conveying information and securing evidence to forfeit the offending vessel, by rewarding this service by the payment of one-half of the forfeiture to the informer. The influence of such a feature in the risk of illegal outfits of great and powerful cruisers, worth hundreds of thousands of pounds, is threefold in its operation: (1) The direct exposure of the enterprise, while in progress, to betrayal and conviction, by this appeal to the interests of some or one of the hundreds of subordinates, in the confidence of the transaction by necessity. (2) The discouragement to the offending belligerent to undertake an enterprise, thus in peril up to the moment when it might have absorbed the full investment of its funds. (3) The danger to the neutral ship-builder from this prolonged menace, from the cupidity which might strike him when the blow would fall upon his own capital, wholly uncovered by payments. It is not too much to say that projects of the magnitude, both in value and in length of time, involved in the building of a Florida or an Alabama, were little likely to risk the danger of a casual or a professional informer under such an inflammation to his zeal.

5. The exclusive judicial enforcement of the American Act is confided to the Federal Courts in their admiralty jurisdiction, as courts known to and governed by the law of nations, and not to the local, domestic, and common-law tribunals of the States. The Constitution of the United States, with sagacious comprehension of the duty and the difficulty of maintaining a jurisprudence in questions of international relation, trustworthy to and trusted by the interests of foreigners and foreign States, has vested the exclusive admiralty jurisdiction in the Courts of the United States, and by this jurisdiction the forfeiture of ships under the Neutrality Act is adjudicated.

We refer the Tribunal for a most competent authority on this whole subject of American jurisprudence and its methods of securing the

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