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It is not material to this point that certain of the States of Europe have agreed to abstain from the issue of letters of marque. Even those powers continue to maintain the belligerent right to capture private merchant-vessels and their cargoes, by the agency of men-of-war. The United States have refused to enter into any such agreement, in the conception that it is only adapted to governments which see fit to incur the expense of maintaining a large military marine. The United States have been content to agree with other powers in according immunity from any capture to private property on the sea; but they insist, as they think rightfully, that, if private property is to remain subject to capture, it should be subject to capture by letter of marque as well as by the regular naval forces of the belligerent, letters of marque having the same relation to regular forces in war on the sea, as volunteer levies have to the regular forces in war on land.1
S. The law of nations, as now practiced, permits the sale of arms by private merchants of the neutral sovereign, and their exportation and transportation for the use of the belligerent, subject to capture as contraband of war, although the tendency of modern opinion is to contend that such acts of sale are contrary to the true principles of neutrality.
Many of the modern regulations of different governments on the subject of neutrality, contained in the documents annexed to the American Counter Case, sustain this view. (See the dispatch of Lord Granville to the Prussian minister of October 21, 1870, on the subject, defending the right of such sales.3)
Sales of arms and contraband of war.
But it is admitted universally, in theory as well as in practice, that international law does not permit the equipment of men-of-war, or letters of marque, or their re-armament, or the enlistment of men for the military marine of the belligerent, in the ports of the neutral.
Dispatch of armed
9. The pretended neutral, who, as a government, expedites vessels, or with culpable negligence permits the expedition of vessels from his ports, to cruise against one of the belligerents, becomes thereby belligerent in fact, and responsible as such to the injured belligerent.
10. In questions of international peace or war, and in all which regards foreign States, the will of the subject (or of commorant aliens) is merged in that of the local sovereign; that sovereign is responsible if he permits or knowingly suffers his subjects (or commorant aliens) to perpetrate injury to a foreign State; and, apart from other and direct proofs of permission, or knowledge and sufferance, the responsibility for any injury is fixed on such sovereign, if he depend on municipal means of enforcing the observance of international obligations, instead of acting preventively to that end in his prerogative capacity as sovereign.
11. It is not admissible for any sovereign to plead constitutional dif ficulties in such an emergency; to do which implies surrender of the rights, as well as abnegation of the power, of a sovereign, and confers on the injured power the right to occupy by force the territory of the incompetent power, and
Responsibility of Sovereign for viola. tion of neutrality.
Constitutional inbe pleaded in answer to
abilities cannot charge of such vio
See Canchy, Droit maritime, tome ii, pp. 374 and 404. Idem, Du respect de la propriété privée dans la guerre maritime, passim.
Bynkershoek, Questiones Juris Publici, 1. i, c. 22. The "Santissima Trinidad," Wheaton's Reports, vol. vii, p. 340. Phillimore, vol. iii, p. 321. Pistoye et Duverdy, Traité des prises maritimes, t. i, p. 394.
3 Documents with the message of President of the United States, December, 1870.
to impose upon his subjects that preservation of order which he professes constitutional inability to preserve.
"Culpâ caret, qui scit, sed prohibere non potest" is indeed one of the rules of private right; "but," says Sir Robert Phillimore, "such an avowal, actual or constructive, on the part of the unintentionally injuring State, justifies the injured State in exercising, if it can, that jurisdiction by foreign force, which ought to be, but cannot be, exercised by domestic law."1
12. But 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.2
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 law-breakers 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.
13. It would be difficult to find any other example of a great State defending itself against charges of wrong by setting up the
Alleged constitu tional
inability of plea of its constitutional incompetency and incapacity to discharge the most commonplace 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 unau thorized private persons from engaging in private war against a friendly
1 Phillimore's International Law, vol. iii, p. 218.
2 See Appendix to the American Counter Case, cited or commented on hereafter.
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: à 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?
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?
14. 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 it, when they choose, without affording occasion of any serious doubt or denial of the constitutionality of their acts.
Be it remembered that the excuse 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.
And what the ministers did on this occasion was fully justified in the House of Commons by Sir Roundell Palmer, the then attorney-general of Great Britain, in the following words:
I do not hesitate to say boldly, and in the face of the country, that the government or their own responsibility detained them. They were prosecuting inquiries which, though imperfect, left on the mind of the government strong reasons for believing that the result might prove to be that these ships were intended for an illegal purpose, and that if they left the country the law would be violated and a great injury done to a friendly power. The government did not seize the ships; they did not by any act take possession or interfere with them, but on their own responsibility they gave notice to the parties interested that the law should not be evaded until the pending inquiry should be brought to a conclusion, when the government would know whether the inquiry would result in affording conclusive grounds for seizing the ships or not. If any other great crime or mischief were in progress, could it be doubted that the government would be justified in taking steps to prevent the evasion from justice of the person whose conduct was under investigation until the completion of the inquiry? 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, that they should not slip out of the Mersey and join the navy of the belligerent powers, contrary to our law, if that were the intention, until the inquiry in progress should be so far brought to a conclusion as to enable the government to judge whether the ships were really intended for innocent purposes or not.
The government were determined that the inquiries which they were making should be brought to a legitimate conclusion, that it might be seen whether those inquiries resulted in evidence or not of the vessels being intended for the confederates, and that in the mean time they would not permit the ends of justice to be baffled by the sudden removal of the ships from the river.
It is impossible that the case of the government can now be brought before the house; but the government have acted under a serious sense of their duty to themselves, to Her Majesty, to our allies in the United States, and to every other nation with whom Her Majesty is in friendship and alliance, and with whom questions of this kind may be liable hereafter to arise. Under a sense of that duty they have felt that this is not a question to be treated lightly, or as one of no great importance. If an evasion of the statute law of the land was really about to take place, it was the duty of the government to use all possible means to ascertain the truth, and to prevent the escape of vessels of this kind to be used against a friendly power. It was their duty to make inquiries, and to act if there was a good ground for seizure, taking care only to adopt that procedure which was justified by the circumstances.1
And well might Sir Hugh Cairns say, on that occasion, to the British minister: "Either our Government must contend that what they did in September (that is, in the matter of the Laird rams) was unconsti tutional, or they ought to have done the same with regard to the Alabama, and are liable."
But in truth these extraordinary professions of impotency, on the part of the British Government, are but additional proofs of the negli gent spirit of that government in permitting or not preventing the expedition of the Alabama and other vessels, and the perilous consequences of which they had come to appreciate and to shrink from at the time of the arrest of the Laird rams.
15. There is another pertinent example in the modern history of Great Britain of the power of her ministers to arrest such expeditions when they have the desire.
We allude to the celebrated affair of the so-called Terceira expedition.
During the pendency of the civil war in Portugal on occasion of the disputed succession between Donna Maria and Don Miguel, certain Portuguese refugees, partisans of Donna Maria, sailed from England in transports ostensibly destined for Brazil, but, as was suspected, intended for Terceira, in the Azores. It was not pretended that the transports were fitted for war, and the Portuguese on board were unarmed. Nevertheless, the British ministers conceived that the expedi tion was one in violation of the neutrality of Great Britain.
Whereupon, they dispatched a naval force to pursue these vessels, and to prevent the persons on board from landing, either at Terceira, or at any one of the Western Islands; which was done, and the Portuguese were compelled to leave the waters of the Azores, and to take refuge in France.
It is to be noted that this act of force by Great Britain in the maintenance of her neutrality was done, not in the ports of Great Britain, or in her waters, but on the high seas, or rather within the waters of the Western Islands, and in the actual jurisdiction of a sovereign to whom the Portuguese in question professed and owed allegiance; for Terceira then acknowledged the power of Donna Maria.
No pretense existed here of action in subordination to the forms of the foreign-enlistment act, or any other act of Parliament. What was done, was done simply in virtue of the prerogative power of the Crown.
1 Documents annexed to the American Case, vol. v, p. 477.
The conduct of the ministers in this affair was earnestly discussed in both houses of Parliament, and was approved by both houses.
But it is remarkable, and pertinent to the present controversy, that neither in the House of Lords nor in the House of Commons was it maintained that the ministers had on this occasion overstepped the limits of the constitution of Great Britain.
The objection was, that the British Government had itself committed a breach of neutrality, in undertaking to intercept the transports on the high seas, or within the legitimate jurisdiction of one of the belligerents; and that the act was a violation of the sovereignty of the State to which the island of Terceira belonged.
We respectfully submit to this high Tribunal whether it is not idle to pretend that British ministers, possessing the constitutional power to pursue and arrest the Terceira expedition even on the high seas, for violating the neutrality of Great Britain, have no power to prevent, even within the ports of Great Britain, the expedition of men-of-war against the United States. In fine, the British ministers, it is impossible to doubt, had the same constitutional power to arrest and detain the Alabama in the ports of Great Britain, imperial or colonial, as they had to arrest there the Laird rams; and they had the same constitutional power to arrest the Alabama, Florida, Georgia, and other confederate cruisers on the high seas, as they had to arrest there the Terceira expedition.
16. And the existence of this constitutional executive power serves to explain, what otherwise would be to the last degree inconceivable, that is to say, the omission, in the British foreign power of the Crow i enlistment act of 1819, to provide for executive action, as was done in the American foreign-enlistment act.
In the United States, it was necessary to impart such executive powers to the President, because, according to the tenor of our Constitution, it does not belong to the President to declare war, nor has he final and complete jurisdiction of foreign affairs. In all that, he must act by the authority, or with the concurrence, as the case may be, of the Congress, or of the Senate.
In Great Britain, on the contrary, it appertains to the prerogative power of the Crown to declare war and to make treaties, either of belligerent alliance or of peace; and, how much soever in practice it may be customary for ministers to communicate with Parliament on these questions, it is not the less true that, constitutionally speaking, the prerog ative power resides in the Crown.
17. The affirmative resolution of the British ministers to call this prerogative power into action for the sole purpose of elevating the rebels of the United States into the dignity of belligerents on a level with their own sovereign, and thus converting piratical cruisers into legitimate cruisers, and the negative resolution of the British ministers, in refusing to call into play the prerogative of the Crown, in order to give effect to their own professions of neutrality, injurious as even such professions were to the United States, in undertaking to place them and their rebels in the same category of international rights, these two resolutions rendered it possible, as it would not otherwise have been, for the confederates to fit out cruisers in the ports of Great Britain: whereupon ensues responsibility of Great Britain for acts of the Confederates, in which, by false theory of action and negligence in fact combined, she participated to the prejudice of the United States.
See the facts of the Terceira expedition, Phillimore's International Law, vol. iii, p. 223.