To the casual reader of them the first idea which suggests itself is their brevity, as compared with corresponding legislation of Great Britain and the United States. But careful examination shows that they express in plain language the true object and theory of all such laws, which is to punish private persons who undertake acts of war by land and sea, in derogation of the sovereignty and in prejudice of the peace of their country; and that they do it effectually, but in terms of equal terseness and precision. On the other hand, the English acts are so overloaded with a mass of phrases, alike unprecise and confused, with so much of tedious superfluity of immaterial circumstances, as if they were specially designed to give scope to bar chicanery, to facilitate the escape of offenders, and to embarrass and confound the officers of the government charged with the administration of law. Such indeed has been the ordinary complexion of the legislation of Great Britain, and this style of complex verbosity of legislation has unhappily been transmitted to the United States, although there it begins to encounter steady efforts of reformation, which are conspicuous in the legislation of many of the American States. These are secondary considerations, however. The important point is, that neither the administrative nor the judicial functionaries of France, nor her legislators and statesmen, ever conceived that the provisions of her penal code were anything more than what they profess to be, namely, the means of punishing the crimes of private persons. Statesmen and legislators of France never imagined that these provisions of the penal code are the measure and limit of her soverign rights or of her sovereign duties. Incidentally those provisions may come in aid of executive action. But to punish individual wrong-doers does not prevent wrong-doing, save incidentally by admonition and example. Punitive legislation is one thing, preventive another; and the only effectual prevention of the wrongful acts of private persons, which tend to compromise the neutrality of a Government, is the summary act of forcible prevention of such deeds by the supreme authority of the Government. Such is the theory of the laws of France in this behalf, as it is of the laws of the United States.1 This appreciation of the articles of the French Code Pénal is confirmed by authoritative commentaries thereon, some of which are reproduced in the documents annexed to the American Counter Case. Accordingly, it is to be remembered that no cruisers sailed from the ports of France to depredate, under the Confederate flag, on the commerce of the United States. At the very commencement, all Frenchmen were forbidden by sovereign act "to take a commission from either of the two parties to arm vessels of war, or to accept letters of marque for a cruise, or to assist in any manner in the equipment or armament of a war-vessel, or privateer, of either of the belligerents."2 And when attempts were made by the Confederates to construct and equip cruisers in the ports of France, on complaint being made by the minister of the United States, the construction of these vessels was arrested; and when a builder professed that vessels under construction, with suspicion of being intended for the Confederates, were in fact intended for a neutral government, the French ministers required proof of such professed honest intention, and carefully watched the vessels to make sure that they should not go into the service of the Confederates. See documents annexed to the American Counter Case, pages 203 et seq. * See Documents, ubi supra, p. 912. On this point we quote the language of the minister of marine, as follows: The vessels of war to which you have called our attention shall not leave the ports of France until it shall have been positively demonstrated that their destination does not affect the principles of neutrality, which the French Government wishes to rigidly observe toward both belligerents.' Contrast this with the conduct of the British Government in like circumstances, as exhibited in the analysis of facts comprised in the present Argument, where it is shown with what incredible credulity the British Government accepted the false and deceptive statements of the criminal and mercenary ship-builders engaged in the violation or evasion of the laws of Great Britain. It requires exercise of much candor to believe that the British minis ters could have permitted themselves to be so grossly imposed upon, if they desired to know the truth. Had they done what the French Government did in like circumstances-if they had required the known tools of Confederates at Liverpool, as might well have been done in virtue of the provisions of the merchant shipping act, and, indeed, of the foreign-enlistment act, to make proof of pretended honesty of purpose, the present controversy between the two Governments might not ever have arisen. Italy. In like manner the conduct of France, regarding the remanning of Confederate cruisers in her ports, is in striking contrast with the conduct of the British Government in reference to the same subject-matter. (b) All the observations regarding the legislation of France apply, in substance, to the legislation of Italy, and the regulations of the Government of Italy, including circulars of the minister of marine, and decrees of the King, all with distinct reference to the present controversy, are comprehensive, definite, and explicit in preventing, as they did prevent, any attempt of the Confederates to fit out cruisers in the ports of Italy, to abuse the right of asylum, or to cruise therefrom against the commerce of the United States. All these measures, in form and effect, assumed preventive action by the executive, independently of the penal provisions of the municipal laws of Italy.3 The universality of laws of this class in the various countries of Europe is indicated by recent Italian juridical writers.1 (c) In like manner, examination of the laws, regulations, and political action of Switzerland, in the matter of neutrality, shows their conformity in theory with that of the United States, and emphatically contradicts that of Great Britain. Switzerland. The Code pénal fédéral of Switzerland is in this respect more concise and comprehensive even than that of France, for it inflicts punishment on all persons guilty in Switerland of committing any act contrary to the law of nations.5 Various ordinances of the Federal Council contain the most stringent provisions for the maintenance of the neutrality of the republic." A federal law of Switzerland regulates in the fullest manner, and with all proper restrictions, the enlistment of troops in the territory of the 1 See Documents, ubi supra, p. 912. 2 Documents as above, p. 949. 3 See Documents annexed to the American Case, vol. iv, p. 150 et seq. * See Ferrarotti, Commentario del codice penale, vol. i, pp. 261-2; and Castelleri, Legislazioni comparate, p. 284. 5 Document annexed to the American Counter Case, p. 1092. 6 Ubi supra, p. 1105. republic for foreign service, providing that it shall not be done without the express permission of the government; and various official reports demonstrate the active efficiency of the federal government in defending its neutrality, not merely by municipal laws, to be executed by the courts, but by the most complete executive action supported by the military force of the republic. Brazil. (d) Similar conclusions apply to the legislation and the administrative action of the empire of Brazil: in considering which it will be convenient also to refer to the legislation and administrative action of Portugal, because of the similarity of their laws, and the more or less of common commentary thereon by juridical writers in one country or the other, of eminence and authority. The penal code of Portugal in this respect is substantially the same as that of France.2 Portugal. That of Brazil, while comprehending the same idea, is more complete in its development. By that code it is a crime on the part of any individual to "provoke directly and by acts a foreign nation to declare war against the empire," or "if in case no declaration of war take place, but in consequence of such provocation there should be necessity for any sacrifice on the part of Brazil, or prejudice of her integrity, dignity, or interests." By that code it is also made a crime to "commit, without order or authority of the government, hostilities against the subjects of another nation, so as to compromise peace, or provoke reprisals." Furthermore it is declared to be piracy "to practice on the sea any act of depredation or violence, whether against Brazilians, or against foreigners with whom Brazil is not in a state of war."3 Both in Brazil and Portugal these provisions of the penal code are but incidental only to the executive action, which prevents by supreme authority any violation of their neutrality, either by subjects or by foreigners. We beg leave to refer this high tribunal to the administrative regulations of the Brazilian Empire, for the enforcement of neutrality in all the ports of the Empire, in the amplest manner, by efficient action on the part of the imperial ministers, and of the provincial presidents.* In the American Case, and the documents to which it refers, there is sufficient indication of the loyalty and efficiency with which the Brazilian Government maintained its sovereignty against the aggressive efforts of the Confederates." As to Portugal, we refer to the correspondence annexed to the American Counter Case, to show that she also never pretended that her neutral duty was confined to the execution of the provisions of her penal code. She also put forth the executive power of the Crown to prevent, repress, or repel aggressive acts of the Confederates in violation of her hospi tality, or in the derogation of her sovereignty. Nay, more, the Government of Portugal, finding its own naval force inadequate to prevent the Confederates from abusing the right of asylum in the Western Islands, expressly authorized the American Government to send a naval force there for the purpose of defending the sovereignty and executing the law of Portugal. 1 Vattel, Droit de gens, éd. Pradier-Fodéré, tome ii, p. 454, note. 2 Ubi supra, p. 1041 et seq. See the circulars issued by the Brazilian Government, in supplementary documents annexed to the American Case, vol. vii, p. 107 et seq. American Case, p, 465. See documents annexed to the American Counter Case, p. 1013 et seq. Spain (e) In Spain, the "Codigo Penal," while repeating the general provision of the French "Code Pénal," adds the following important specific enactment to punish "any person who without legitimate authorization shall levy troops in the kingdom for the service of any foreign power, or shall expedite cruisers, whatever may be the object proposed, or the nation against which it is intended to commit hostilities." But Spain never pretended that she had any right to plead these provisions of her penal code as excuse for omitting to act preventively by executive power to repress misconduct on the part of the Confederates.2 (f) In regard to the governments of Brazil, Portugal, and Spain, it deserves to be remarked that their respective juridical commentators fully explain the theory of their penal codes as being chiefly valuable to aid in the preservation of the national peace. They rightfully maintain that neither the enlistment of troops in a country for foreign service, nor the equipment of ships of war in their ports for such service, would of themselves, and of necessity, involve any disturbance of the domestic peace. Such acts are not prohibited as being immoral or criminal per se, but only if done in derogation of the local sovereignty and in prejudice of the rights of other governments. That is to say, these laws, although not bearing the title of "Neutrality Laws," are quite as clearly neutrality laws in fact as the foreign-enlistment acts of the United States and of Great Britain.3 We might extend these remarks to the legislation of all the other maritime states of Europe. Belgium and Holand. (g) The penal laws of Belgium and the Netherlands, in this respect, are identical with those of France. (h) The provision of the penal code of the Netherlands deserves attention because of the very pertinent remarks respecting it made by the Netherlands minister, Mr. Van Zuylen, in reply to the inquiries of the British chargé d'affaires, Mr. Ward. Mr. Van Zuylen writes as follows: THE HAGUE, March 6, 1867. Mr. Ward's note of the 16th instant, asking information for his government about the laws, regulations, and other meaus that the Netherlands may use to prevent violation of neutrality within her borders, has been received. In reply, the undersigned informs Mr. Ward that there is no code of laws or regulations in the Kingdom of the Netherlands, concerning the rights and duties of neutrals, nor any special laws or ordinances for either party, on this very important matter of external public law. The government may use articles 84 and 85 of the penal code; but no legislative provisions have been adopted to protect the government, and serve against those who attempt a violation of neutrality. It may be said that no country has codified these regulations and given them the force of law; and though Great Britain and the United States have their foreignenlistment act, its effect is very limited. The Netherlands government has not yet thought proper to collect the regulations in relation to the rights and duties of neutrality; but has always scrupulously observed the principles of the European law of nations, and has published notices (as Great Britain and France did in 1861) to Netherland subjects not to carry dispatches or articles contraband of war, nor to break an effective blockade, nor to engage in privateering, nor accept letters of marque. The admission of belligerent ships of war into our ports was regulated in the same manner, and the special instructions sent to our colonial governors, during the civil war in the United States, were communicated to the British legation on the 17th December, 1861. 1 Documents, ut supra, p. 1051 et seq. Ubi supra, p. 1072 et seq. See also the letter of the Spanish minister, M. Ribeiro, to Sir A. Paget, Amer. App., vol. iv, p. 158. 3See Silva Ferrão, Theoria do Direito Penal, vol. iv, pp. 181, 231; and Pacheco, Codigo Penal Concordado, tome ii, pp. 91, 96, in Documents, ubi supra, pp. 958, 1052. 1See Nederlandsche Wetboeken, ed. 1865, p. 677, for the law of the Netherlands. Those notices were more extensive and precise last year. The government undertook to prevent the equipment of war vessels for the belligerents in her ports. A copy of the Official Gazette, March 20, 1866, containing those notices, is hereto annexed. Articles 84 and 85 of the penal code may be used as coercive measures to prevent violations of neutrality. For example, they might serve to prosecute those attempting to equip or sell vessels of war in our port for the benefit of belligerents. The vessels could then be seized on evidence, and their departure be thus prevented.1 Mr. Van Zuylen's language is inaccurate. He obviously intended to express that the Netherlands have no laws known by the name of laws of neutrality, or codified as such. He seems not to have thought that mere penal provisions deserved the name, although he refers to penal provisions, which, as he says, are ancillary, in that sense, to the exercise of the executive power of the government, this being the proper, and indeed the only effectual, agency for the protection of its sovereignty against invasive or evasive acts on the part of belligerents. The efficiency with which executive 'power is applied to such subjects in the Netherlands is fully manifested by the pertinent circulars of that government.2 (i) We find similar laws existing in Russia; in Prussia, which had occasion once to apply those laws to the acts of British Russia and Prus agents in Prussia; in Denmark, and in Sweden.3 sia, Denmark and Sweden. (j) The documents, which exhibit the legislation and political action of Denmark in this relation, are particularly interesting, because they so clearly show how the penal or punitive laws were merely and simply supplemental to the preventive action of the Government. 6. On review, therefore, of the legislation and political action of Great Britain, as compared with that of all other Governments, we arrive at the following conclusions: Comparative review. (a) The institutions of Italy, Brazil, Switzerland, France, Spain, Portugal, the Netherlands, and all other Governments of Europe indeed, except Great Britain, expressly assume, as do 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. (b) 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. (c) 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 merely 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. (d) 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. (e) Great Britain alone pretends that punitive law is the measure of neutral duties: all other Governments, including, the United States, pre Documents annexed to the American Case, vol. iv, p. 155. * Documents annexed to the American Counter Case, Supplement, p. 56. |