Lapas attēli
PDF
ePub

pressed by Earl Granville, in Parliament, in the debate on the Washington Treaty. Earl Granville said:

On the one hand, nothing is so easy as to prevent a vessel of the Alabama class escaping from our shores, and the only loss to the country which would result from such a prevention, would be the small amount of profit which the individual constructing and equipping the vessel might derive from the transaction, which in almost every case is contrary to the Proclamation of the Queen. 1

Nor are we able to see how Her Majesty's Government can escape from the dilemma which, on its failure to stop the Florida and the Alabama, and its easy success in stopping the Laird rams, was proposed to it by Sir Hugh (now Lord) Cairns, in Parliament.

What will you say to the American Minister now? Do not you suppose that the American Minister will come to you and say, "You told me last year that unless you had a case for seizure, and proof by proper evidence, you could not arrest a ship at all; that you could not detain her? Although you admitted that the facts I brought before you created very great suspicion, you said that you could not seize the Alabama, therefore you could not touch her. But look at what you did in September. For a whole month you detained these steam-rams in the Mersey, while, according to your own words, you were collecting evidence, and endeavoring to see whether your suspicious were well founded." I maintain that when the United States hold this language, either our Government must contend that what they did in September was unconstitutional, or they ought to have done the same with regard to the Alabama, and are liable. 2

*

V. Manifestly, if the Foreign Enlistment Act of Great Britain was thus inadequate and unsuitable, as an efficient instrument

The neglect to

Enlistment Act a fail

in the hands of the Government for the fulfillment of its amend the Foreign international duty to the United States, it was a failure in ure of due diligence. the "use of due diligence to prevent" the injuries now complained of, not to obtain from Parliament a suitable and efficient act for the fulfillment of the duty. The demonstration of the existence of this obligation, and of its being early brought to the notice of Her Majesty's Government by the United States, and of the refusal of Great Britain to meet the obligation, is complete. We refer the Tribunal to a statement of the contemporary correspondence on this subject between the Governments, and a memorandum of the action of Great Britain in the matter, after the close of the Rebellion, contained in Note C of the Appendix to this Argument.

Contrast between

Britain and the course of the United States in these re

In strong contrast with this inaction of Great Britain, and with its justification by Her Majesty's Government, is the course taken by the Government of the United States in 1793, at the course of Great the instance of Great Britain, in 1817, at the instance of Portugal, and again in 1838, to meet an exigency in the interest of Great Britain, for the maintenance of its sovereignty over the Canadian provinces.

spects.

On the 3d of December, 1793, President Washington, in his message to Congress, after stating the means that he had used to maintain a strict and impartial neutrality, said:

It rests with the wisdom of Congress to correct, improve, or enforce this plan of procedure, and it will probably be found expedient to extend the legal code and jurisdiction of the courts of the United States to many cases which, though dependent upon principles already recognized, demand some further provisions.

When individuals shall, within the United States, array themselves in hostility against any of the powers at war, or enter upon military expeditions or enterprises within the jurisdiction of the United States, or where penalties on violations of the law of nations may have been indistinctly marked or are inadequate, these offenses cannot receive too early and close an attention, and require prompt and decisive remedies.

1 Appendix to this Argument, Note B.

2 Am. App., vol. v, p. 493.

On the 20th of December, 1816, the diplomatic representative of Portugal thus wrote to Mr. Monroe, then Secretary of State:

What I solicit of him (the President) is the proposition to Congress of such provisions by law as will prevent such attempts for the future.1

Six days later, President Madison addressed a message to both Houses of Congress in part as follows:

With a view to maintain more effectually the respect due to the laws, to the character, and to neutral and pacific relations of the United States, I recommend to the consideration of Congress the expediency of such further legislative provisions as may be requisite for detaining vessels actually equipped, or in course of equipment, with a warlike force, within the jurisdiction of the United States; or, as the case may be, for obtaining from the owners or commanders of such vessels adequate securities against the abuse of their armaments.2

At the same time, Mr. Monroe, Secretary of State, wrote to Mr. Forsyth, chairman of the Committee on Foreign Relations:

I have now the honor to state that the provisions necessary to make the laws effectual against fitting out armed vessels in our ports for the purpose of hostile cruising, seem to be:

1st. That they should be laid under bond not to violate the treaties of the United States under the law of nations, in all cases where there is reason to suspect such a purpose on foot, including the cases of vessels taking on board arms and munitions of war, applicable to the equipment and armament of such vessels subsequent to their departure.

2d. To invest the Collectors, or other Revenue Officers, where there are no Collectors, with power to seize and detain vessels under circumstances indicating strong presumption of an intended breach of the law, the detention to take place until the order of the Executive, on a full representation of the facts had thereupon, can be obtained.

The existing laws do not go to this extent. They do not authorize the demand of security in any shape, or any interposition on the part of the magistracyas a preventive, when there is reason to suspect an intention to commit the offense. They rest upou the general footing of punishing the offense merely where, if there be full evidence of the actual perpetration of the crime, the party is handed over, after trial, to the penalty denounced.3

The circumstances under which the temporary Neutrality Act of 1838 was passed, are fully stated in the Case of the United States, (p. 133,) and the act itself can be found in the documents presented therewith.*

Not less in contrast with the indifference and obstructions with which Her Majesty's Government met the earnest applications of the Government of the United States, in the stress in which it was placed, for an improvement of the Foreign Enlistment Act, are the solicitude and attention bestowed by Great Britain upon the amendment of this act after the rebellion was suppressed. The report of the Royal Commission, appointed to consider the subject, upon the defects of the old law and the necessary amendments to give it due vigor, leaves nothing to be said in condemnation of the persistency with which Great Britain clung to it during the whole period of the Rebellion. The promptitude of Parliament in enacting the new statute upon the breaking out of the recent war between Prussia and France, has already been referred to, and is exhibited in the extracts from the debate on its passage, set forth in Note B of the Appendix to this Argument.

It is unnecessary to argue that the passage of the present Foreign Enlistment Act in May, 1861, following upon the Queen's Proclamation of neutrality, and its reasonable enforcement, would have precluded the scandals deplored by the British Government and the injuries suffered by the United States from the emission of the Alabama and her consorts from British ports. The text of the act carries its own argument.

Am. App., vol. iii, p. 541. 3 Ibid., p. 542.

2 Ibid., p. 542.
Ibid., vol. iv, p. 62.

Well might that eminent publicist, Phillimore, immediately after the passage of this act, "rejoice that the English Government has, by the statute of this year, strengthened the hands of the Executive, and given greater force and prominence to the maxim that, with respect to the external relations of the State, the will of the subject is bound up in that of his Government."1

We confidently submit that, in refusing to amend the Foreign Enlistment Act in aid of the fulfillment of the duty prescribed by the Three Rules of the Treaty, Great Britain failed "to use due diligence to prevent" the injuries for which the United States demand redress from the justice of this Tribunal.

Failure in due dili gence after the excape of the cruisers.

VI. We pass now to an examination of the question of "the use of due diligence to prevent" the violation of its international duty to the United States, as exhibited in the course pursued toward the offending vessels by Great Britain, after their first escape from British ports, under the circumstances and consequences of inculpation for such escape which have already been considered. Except for the actual violence and depredations committed by the escaped cruisers after their emission from British ports, the injuries to the maritime property of the United States and the enormous connected losses to the national wealth would not have been inflicted. In every view, therefore, the subsequent career of the cruisers becomes of the highest importance to the practical determination by this tribunal of the matters in judgment before it.

In not detaining

when again in Brit

due diligence.

1. It is indisputable, that if, in respect to any one of the vessels incriminated, the escape of that vessel from the home port should have been shown by Great Britain, to the satisfaction offending cruisers of the Tribunal, to have taken place in spite of "the use of ish ports, a want of due diligence to prevent" it, the principles of the Three Rules and of international law not inconsistent therewith will require that the same inquisition must be applied to any subsequent escape from another port of the British Empire, home or colonial, where the Government had an opportunity to lay hands upon and arrest her.

Thus, suppose, for a moment, that the British Government was not in fault in respect of the first emission of the Florida from the port of Liverpool, her subsequent history at Nassau must then be examined. If her openly allowed departure from Nassau, "on an expedition of pillage, piracy, and destruction," (to quote Governor Bayley again,) was not in spite of the use of due diligence "to prevent the departure from its jurisdiction" of a vessel which had "been specially adapted in whole or in part within such jurisdiction to warlike use," such departure is, in itself, a failure by Great Britain to fulfill the duties set forth in the Three Rules of the Treaty, and must be so pronounced by the Tribunal. As the Florida, until after she left Nassau, remained in the same plight of a British vessel as when she left Liverpool, and did not receive a (socalled) "commission," or change her flag until afterward, there is no opportunity for cavil upon this point.

2. If, on the other hand, the original escape of any of the offending vessels from the home port shall inculpate Great Britain under the Rules of the Treaty, it is obvious that the original fault and accountability of Great Britain in the supposed case only enhance the obligation which, we have seen, requires "the use of due diligence to prevent" the subsequent departure from its jurisdiction of a vessel whose original escape from the home port has not been imputed to a default in such diligence.

1 Phill. Int. Law, (ed. 1871,) p. 28, preface.

This obligation not

anissioning a cruiser.

3. This obligation, whether in the alternative of the original escape of the offending vessel being for want of, or in spite of, the "use of due diligence to prevent" it, must endure until it has been fully and successfully met by the arrest and detention of the offending vessel, and her "expedition of pillage, piracy, and destruction" brought to a close. We have already considered whether this indisputable general proposition needs to be qualified by the impediment insisted determined by com- upon to its continued application, arising from the (socalled) "commission" as a public ship of a belligerent not recognized as a nation or a sovereign. We have shown that, in regard to public ships of recognized nations and sovereigns, this public char acter by comity withdraws them only from the jurisdiction of courts and process, and leaves them amenable to the political and executive power. We have shown that, in the case of public ships having no recognized state or sovereign behind them, the political and executive power deals with them, in its own discretion, with strong hand, in administration of every duty and every right pertaining to itself or owed to another na tion. The grounds upon which we put our inculpation of Great Britain for dealing with these Rebel cruisers, as it did, after their commission as public ships, do not involve any contention as to whether or not judicial control should thereafter have been asserted over them. This domestic question of comity to the Rebel cruisers on their "expeditions of pillage, piracy, and destruction," may be at the discretion of a Government. But the pretensions that the international duty by which Great Britain was "bound" to the United States to use due diligence to prevent these offending vessels of guilty origin from departing from its ports when it was master of the opportunity so to do, was cut short and overmastered by the Rebel "commission," upon the reasons already given, we entirely deny.

Not excluding escaped cruisers from British ports

diligence.

4. It is conspicuous upon the proofs before the Tribunal that it was quite in the power of Her Majesty's Government, by arrest ing these offending vessels at their first, or even later, visits was a want of due to British ports after their successful fraud upon the neutral obligations of Great Britain in their original "escape," to have intercepted these "expeditions of pillage, piracy, and destruction," and at once repaired the misfortune or the failure of duty which had made such "escape" possible, and struck a fatal blow at the systematic project and preparation of such expeditions from the home ports of Great Britain. There was no adequate motive for, or benefit from, these guilty enterprises if the first escape were to leave the vessels homeless and shelterless upon the ocean, with no asylum in British ports except such as mere humanity offers against stress of storm and danger of shipwreck. Such asylum, upon the very motive on which it is yielded, upon the very plea upon which it is begged, the sentiment of humanity, would have exacted the abandonment of the career of violence, meditated or commenced, and a submission to the outraged authority of Great Britain, whose peace and dignity were compromised by the original escape from its ports.

It is a notable fact that not one of these offending vessels ever returned to a home port of Great Britain, except the Georgia, to be dismantled and sold, and the Shenandoah to be surrendered to the Govern ment of the United States. The Florida once, and the Alabama once, sought the commercial recruitment which the hospitality of the ports of France conceded them, on the plea of relâche forcée. They had not violated the neutrality of France in their original outfit, and had no resent

1 Supra, PP.

ments or restraints to fear in her ports. But why prefer France to England? Was it on motives of market and convenience? The supplies for these cruisers while in the French ports were sent to them from England. Every interest, every inclination, every motive would have carried them to England, had not some overwhelming reason deterred them from that resort. They had violated her neutrality; they had brought scandal and reproach upon the administration of her laws. They were not lacking in courage or effrontery; but that the government of Great Britain would tolerate their presence in her ports to replenish their resources, and " their expeditions of pillage, piracy, and plunder," was impossible to be conceived, and they avoided the danger. But the wide power of that nation "whose morning drum-beat, commencing with the sun and keeping company with the revolving hours, surrounds the whole earth with one continuous strain of the martial airs of England," does not outrun the obligations of public justice or of international duty. What it would shock the moral sense of Englishmen to deny must have been the action of Her Majesty's Government at home, should have been, but was not, their action throughout their colonial possessions.

On the 26th day of April, 1864, in the debate in the House of Lords on the dispatch of the Duke of Newcastle to Governor Wodehouse, instructing him that he should have detained the Tuscaloosa, Earl Russell, defending this instruction, said in part as follows:

It must be recollected that all these applications of principles of international law to the contest between the Federal and so-styled Confederate States, have to be made under very exceptional circumstances. It has been usual for a Power carrying on war upon the seas to possess ports of its own in which vessels are built, equipped, and fitted, and from which they issue, to which they bring their prizes, and in which those prizes, when brought before a court, are either condemned or restored. But it so happens that in this conflict the Confederate States have no ports, except those of the Mersey and the Clyde, from which they fit out ships to cruise against the Federals. 1

In the same debate, the Attorney General, Sir Roundell Palmer, also defending the dispatch, in addition to the words we have quoted supra, said:

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.2

In February, 1864, Mr. Vernon Harcourt thus wrote in a letter to the London Times:

I think that to deny to the Florida and to the Alabama access to our ports would be the legitimate and dignified manner of expressing our disapproval of the fraud which has been practiced upon our neutrality. If we abstain from taking such a course, I fear we may justly lie under the imputation of having done less to vindicate our good faith than the American Government consented at our instance, upon former occasions, to do.3

On the 13th of May, 1864, in a debate relative to the course that should be adopted in regard to the Georgia which had come into Liverpool, the Attorney General said:

I have not the least doubt that we have a right, if we thought fit, to exclude from our own ports any particular ship or class of ships, if we consider that they have violated our neutrality.

In 1867, Her Majesty's Commissioners having been empowered to report what changes ought to be made in the Foreign Enlistment Act for

1 Am. App., vol. v, p. 535.

3 Ibid., vol. iv, p. 204.

2 Ibid., p. 570.
4 Ibid., vol. v, p. 583.

« iepriekšējāTurpināt »