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at all events, unless it afterward ratifies and adopts what these may have done.
In the matter of civil rights individuals may be liable for the negligence of those to whom they depute the conduct of their affairs; but, considering the complicated machinery of political government, especi ally when distant colonies and dependencies are concerned, and the consequent necessity of employing subordinate officers, it would be unreasonable and unjust to hold that the negligence of a subordinate, more especially from mere error of judgment, as, for instance, in allowing a vessel to take too much coal, was a want of "due diligence" on the part of the government, for which it can justly be held liable.
The following passage from the British Counter-Case sums up so well the different sides of this question, that I do not hesitate to produce it at length:
That due diligence requires a government to use all the means in its power, is a proposition true in one sense, false in another; true, if it means that the government is bound to exert honestly and with reasonable care and activity the means at its disposal; false, impracticable, and absurd, if it means that a liability arises whenever it is possible to show that an hour has been lost which might have been gained, or an accidental delay incurred which might, by the utmost foresight, have been prevented; that an expedient which might have succeeded has not been tried; that means of obtaining information which are deemed unworthy or improper have not been resorted to; or that the exertions of an officer or servant of government have not been taxed to the utmost limit of his physical capacity.
Nor can we fail to observe that, in proportion as we extend the duty of prevention incumbent on neutral governments, from hostile enterprises which are open and flagrant to acts of a more doubtful character which border on the line betwixt the lawful and the unlawful, it becomes more and more difficult to exact from the neutral, in the performance of that duty, peculiar and extraordinary vigilance and activity. The duty of preventing the open assembling within neutral territory of an armed hostile expedition against a neighboring country is plain and obvious, and requires only a prompt exercise of adequate force. But it is otherwise when we come to acts of a different class, the criminality of which depends on a latent intention; such, for example, as the mere procuring for belligerent purposes from the yards of a neutral shipbuilder, whose ordinary business it is to build ships of all kinds for customers of all nations, a vessel with some special adaptation for war. There is nothing in the relation of a neutral to a belligerent to cast on the former the duty of exercising within his own territory a constant and minute espionage over ordinary transactions of commerce for the protection of the latter. This relation, always onerous to the neutral, is, at the same time, it must be remembered, purely involuntary on his part. It is forced on him by the quarrels of his neighbors in which he has no concern, or by their internal discords when those discords break out into civil war, 1
While I readily admit that the measure of diligence which a government applies to the affairs it has to administer, if the ordinary course of its administration is negligent and imperfect, is not necessarily to be taken-any more than it would be in the case of an individual-as the measure of diligence which it is to apply in the discharge of international obligations, yet credit should be given to a government for a properly diligent discharge of public duty.
Furthermore, if a given law and a particular system of administration have been found by practical experience suflicient to protect the interests of the government in the important matter of the public revenue, and also to insure the observance of neutral duties on the occasion of all former wars, surely it is highly unreasonable and unjust to condemn the whole system as defective, and the government as negligent, for not having amended it in anticipation of future events.
It must not be forgotten that, since the passing of the British statute, wars have occurred in all parts of the world, but no complaints of the violation of that statute have occurred till American citizens had recourse to new modes of defeating or evading it.
1 British Counter-Case, page 22.
Such, in my opinion, are the principles by which we should be guided in deciding whether Great Britain has or has not failed to satisfy the requirements of due diligence. I proceed to apply them to the different heads of complaint preferred by the United States.
Municipal law of Great Britain.
One main head of complaint on their part is that the municipal law of Great Britain, as contained in the foreign-enlistment act, was insufficient to enable the British government to enforce the observance of the duties of neutrality by its subjects. We have first a general condemnation of English acts of Parliament. "English acts," we are told, "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." But then we have the satisfaction of learning that "there it begins to encounter steady efforts of reformation, which are conspicuous in the legislation of many of the American States.1
Of the foreign-enlistment act we are told that "its practical inefficiency was glaringly apparent on the face of all the relative diplomatic correspondence between Great Britain and the United States."
That it was "valueless, except as occasion should arise to make it serve as a pretext to cover, in diplomatic communication with other governments, indifference, unfriendly, or hostile animus on the part of some British minister."
British ministers are represented as "floundering along in the flat morass of the meaningless verbosity and confused circumlocution of an act of Parliament." They are represented as having been "compelled to drift into the condition of foreign war rather than break free from the entanglement of the cobweb meshes of that act."
It strikes me that those who address us in this strange style must suppose us to be ignorant that the English act of 1819 was framed on the model of the American act of 1818; that it is, in the main, identical in language, and is, in one, and that an important particular, more stringent than its predecessor.
The English act, in the part of it with which we are concerned, makes it an offense to "equip, furnish, fit out, or arm, within the For-enlistment United Kingdom or the Queen's dominions, without the royal license first obtained, any ship or vessel, with the intent, or in order that such ship or vessel shall be employed in the service of any foreign prince, state, or potentate, or of any foreign colony, province, or part of any province or people, or of any person or persons exercising or assuming to exercise any powers of government in or over any foreign state, colony, province, or part of any province or people, as a transport or storeship, or with intent to cruise or commit hostilities against any prince, &c., &c., with whom the Queen is not at war." To attempt to equip, &c., any such ship or vessel with a like intent, or to procure it to be done, as well as knowingly to aid and assist, or be concerned in so doing, is equally made an offense. The penalty attached to the offense is fine and imprisonment, or either of them, at the discretion of the court, and the forfeiture of the vessel, with all its accessories, and of all materials, arms, ammunition, and stores which
United States Argument, p. 61.
may be found on board, on the vessel being prosecuted and condemned; such prosecution and condemnation being directed to be had "in like manner, and in such courts, as ships and vessels may be prosecuted and condemned for any breach of the laws for the protection of the revenues of customs and excise, or of the laws of trade and navigation." So much for the prohibitive or punitive part of the law. ventive part consists in a provision that the ship or vessel may be seized by any officer of Her Majesty's customs or excise, or any officer of the royal navy, who is by law empowered to make seizures for any forfeiture incurred under the revenue laws, or laws relating to trade or navigation, within the limits of their particular jurisdictions.
Comparison with American acts.
On comparing the enactment relating to the fitting out of ships with the corresponding enactment of the American statute, it will be found that the English act, on which so much vituperative criticism has been lavished, is, in fact, as regards the equipment of vessels, more comprehensive and effective than the former. For, while the English statute makes it an offense to equip or arm, in the disjunctive, by the American statute the offense consists in fitting out and arming, in the conjunctive, thus bringing the vessel a stage further on toward belligerent completion before the law can interpose.
It is true that the judges in the court of exchequer having been divided in opinion, in the case of the Alexandra, as to whether the arming of a vessel was not necessary before the intent that she should be employed for belligerent purposes could be inferred, the result in that case was that the more comprehensive enactment of the English statute failed in its effect. But when it is said, in somewhat strong language, that the effect of the decision in the Alexandra case was to "emasculate" the English statute, it must be observed that, if such was the case, the effect was only to reduce the English act to the condition in which the American statute had been from its birth. I think it unnecessary, on the present occasion, to express any opinion on the question on which the judges of the court of exchequer were divided. I will only, in passing, repeat my conviction that neither the American nor the English statutes were ever intended to interfere with the execution of orders from belligerents by American or British ship-builders, but simply to prevent the ports of the respective countries from being used for fitting out privateers, or being made the base of hostile expeditions. But the distinction between equipping and arming, and equipping without arming, is immaterial for the present purpose; for, in point of fact, that distinction never created any difficulty in the action of the British government. In the cases both of the Florida and the Alabama, the only question on which the action of the government was arrested was as to the sufficiency of the evidence of the vessel being intended for the service of a belligerent.
Preventive powers of British and American acts.
But it is with reference to the preventive powers conferred on the Executive by these acts that the case and argument of the United States principally assail the British statute, and triumphantly assert the superiority of the American act; maintaining that, while the British act depends on the sanction. of penalties, the American act places power in the hands of the Executive which effectually secures it against infraction of the law.
Acquainted with the two acts, I read, I must say, with much surprise, the following passage in the argument of the United States:
The great difference between the two consists in the cardinal fact that the provisions
of the British act are merely punitive, and to be carried into effect only by judicial instrumentality; whereas the American act is preventive, calls for executive action, and places in the hands of the President of the United States the entire military and naval force of the Government, to be employed by him in his discretion for the prevention of foreign equipments and foreign enlistments in the United States.1
This appears to me a thoroughly inaccurate representation of the effect of the American act, which, as I understand it, confers no discretionary power on the President beyond that of employing the mili tary or naval forces of the republic to support the law, if necessary. Referring to the different violations of neutrality made offenses by the act, the 8th section provides that
In every case in which a vessel shall be fitted out and armed, or attempted to be fitted out and armed, or in which the force of any vessel of war, cruiser, or other armed vessel shall be increased or augmented, or in which any military expedition or enterprise shall be begun or set on foot, contrary to the provisions and prohibitions of this act; and in every case of the capture of a ship or vessel within the jurisdiction or protection of the United States as before defined; and in every case in which any process issuing out of any court of the United States shall be disobeyed or resisted by any person or persons having the custody of any vessel of war, cruiser, or other armed vessel of any foreign prince or state, or of any colony, district, or people, or of any subjects or citizens of any foreign prince or state, or of any colony, district, or people, it shall be lawful for the President of the United States, or such other person as he shall have empowered for that purpose, to employ such part of the land or naval forces of the United States, or of the militia thereof, for the purpose of taking possession of and detaining any such ship or vessel, with her prize or prizes, if any, in order to the execution of the prohibitions and penalties of this act, and to the restoring the prize or prizes in the cases in which restoration shall have been adjudged, and also for the purpose of preventing the carrying on any such expedition or enterprise from the territories or jurisdiction of the United States against the territories or dominions of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace.
To any one who reads this section with any degree of attention, its meaning, I think, must be clear. No arbitrary power is given to the President, nor any power of seizing a vessel at all, except "in order to the execution of the prohibitions and penalties of the act." No discretionary power whatever is given him except that of using force, where force is required, for overcoming resistance.
The enactment was contained in the original act of 1794, which was passed shortly after the French minister, Genet, had set the Government at defiance, and threatened to resist by force any attempt to detain a privateer illegally armed in the port of Philadelphia, and after the French vice-consul at Boston had actually rescued by force a suspected vessel which had been seized by the United States authorities.
The section was obviously directed against the repetition of such an occurrence, and was necessary to enable the President to use the forces of the state on a sudden emergency without having recourse to the Senate. The section gives the President no power which he would not have had without it, except where recourse to actual force is necessary. It is an entire misrepresentation to say that he has a discretionary power to seize and detain a vessel without bringing her before the proper court for adjudication. His power is to employ the state force, if necessary, among other things, to seize a vessel, "in order to the execution of the prohibitions and penalties of the act," which implies that the vessel must be submitted, in the usual course, to the proper legal process to decide on her condemnation or release. Often as the action of the Government was invoked by the governments of Spain and Portugal, during their colonial wars, to prevent the arming of vessels in the ports of the United States, frequent as have been
1 Argument of the United States, p. 53.
the raids and hostile expeditions from American territory since, no instance has been adduced of the exercise of this alleged discretionary power by a President of seizing a vessel and keeping her, without putting the matter into due course of law, and I feel tolerably confident that no such instance has ever occurred.
Instances may have occurred, as in the case of the Spanish gun-boats building at New York in 1869, in which it was considered necessary to provide for the use of force to arrest ships believed to be about to go forth on military expeditions; but such seizures have been followed by the ordinary course of legal procedure and inquiry, or the intended expedition having been prevented or else abandoned, the vessel has been restored without any further proceeding. Instances have no doubt occurred in which vessels have been seized by order of the President, as head of the executive, as vessels might be seized by order of Her Majesty's government; but this was only that the statute might be put in force. In like manner vessels may have been seized under the ordinary civil authority, and it being found that there was no sufficient case against them, may have been set free. But no instance, I believe, has occurred, except where force was actually necessary, of the seizure of a vessel by a President, in the mere exercise of executive power, suspending the ordinary action of the law. No example of such a proceeding has been, or, I believe, can be, adduced, with the single exception of the case of Gelston vs. Hoyt, to which I am about to refer, in which the experiment to exercise such a power was tried and failed.
By the decision of the Supreme Court of the United States, in the last-mentioned case, which is reported in the 4th volume of Curtis's Reports, page 228, the view I have taken of the effect of the. American` act is conclusively borne out. An action having been brought by a shipowner against a civil officer for the seizure and detention of a ship, the defendant pleaded the order of the President, but the plea was held bad. In giving judgment, Mr. Justice Story says:
The argument is that, as the President has authority, by the act, to employ the naval and military forces of the United States for this purpose, à fortiori he might do it by the employment of civil force. But, upon the most deliberate consideration, we are of a different opinion. The power thus intrusted to the President is of a very high and delicate nature, and manifestly intended to be exercised only when, by the ordinary process or exercise of civil authority, the purposes of the law cannot be effectuated. It is to be exerted on extraordinary occasions, and subject to that high responsibility which all executive acts necessarily involve. Whenever it is exerted, all persons who act in obedience to the executive instructions in cases within the act are completely justified in taking possession of and detaining the offending vessel, and are not responsible in damages for any injury which the party may suffer by reason of such proceeding. Surely, it never could have been the intention of Congress that such a power should be allowed as a shield to the seizing officer in cases where that seizure might he made by the ordinary civil means. One of the cases put in the section is, where any process of the courts of the United States is disobeyed and resisted; and this case abundantly show that the authority of the President was not intended to be called into exercise, unless where military and naval forces were necessary to insure the execution of the laws. In terms, the section is confined to the employment of naval and military forces; and there is neither public policy nor principle to justify an extension of the prerogative beyond the terms in which it is given. Congress might be perfectly willing to intrust the President with the power to take and detain, whenever, in his opinion, the case was so flagrant that military or naval force were necessary to enforce the laws, and yet with great propriety deny it where, from the circumstances of the case, the civil officers of the Government might, upon their private responsibility, without any danger to the public peace, completely execute them. It is certainly against the general theory of our institutions to create great discretionary powers by implication; and in the present instance we see nothing to justify it.
I cannot help expressing my surprise that, with this decision before them, American lawyers should have submitted so incorrect a statement to this tribunal. If, indeed, what is meant is that the power of the