Lapas attēli
PDF
ePub

President to use the forces of the State to prevent forcible violations of neutrality gives any superior efficacy to the American system, the answer is that which has been given by Sir R. Palmer in bis most able argument, namely, that in all cases similar to those referred to in the American act, the sovereign of Great Britain possesses full power to use force, civil or military, such as the case may call for.

The first American neutrality act of 1794 was silent as to the authority by whom vessels infringing the law should be seized, proceedings being apparently left to be taken by any person choosing to become an informer, to whom half the penalty and bali the forfeited property is to go.

From the case of Gelston vs. Hoyt, just cited, it however appears that at the time that cause was decided, in all cases of the forfeiture of vessels the duty of seizure devolved on the officers of customs. In this respect, therefore, the practice of the two countries would be the same.

Loud complaints having been made, by the representatives of Spain and Portugal, of the number of privateers fitted out and manned, from ports of the Union, by American citizens, and preying on the commerce of the two countries, under commissions from the revolted colonies, a new statute was passed in 1818, which, in addition to the enactments of the act of 1794, which otherwise remained the saine, contained two new provisions.

Section 10 provided that: The owners or consignees of every armed ship or vessel sailing out of the ports of the United States, belonging wholly or in part to citizens thereot, shall enter into bond to the United States, with sntticient sureties, prior to clearing out the same, in double the amount of the value of the vessel and cargo on board, including her armament, that the said ship or vessel shall not be employed by such owners to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace.

By section 11 special power was given to collectors of customs

To detain any vessel manifestly built for warlike purposes, and about to depart the United States, of which the cargo shall principally consist of arms and munitions of war, when the number of men shipped on board, or other circumstances, shall render it probable that such vessel is intended to be employed by the owner or owners to cruise or commit hostilities upon the subjects, citizens, or property of any foreign state, or of any colony, district, or people with whom the United States are at peace, un. til the decision of the President be had thereon, or until the owner or owners shall give such bond and security as is required of the owners of armed ships by the preceding section af this act.

But the power thus given would evidently not apply to the case we have here to deal with, of vessels leaving equipped, but without au armament, and having no arms or munitions of war on board.

In like manner the bonding clause just quoted (section 10) applies only to armed ships, and therefore would equally have been unavailable. Besides which, it applies only to ships belonging in whole or in part to American citizens, and would therefore obviously have no application to a ship sold to a foreign government.

But though it is an entire mistake to say that the American act of 1818 was in any respect superior to the British act of the ensuing year. it is true that, since the time the American act was passed, the working of the legal administration in the United States has become, for the purpose of proceeding against a suspected vessel, in one respect better than that of Great Britain. It appears that in each district of the United States there is a resident legal officer of the Federal Government, called the district attorney, to whom, if the action of the Government is invoked, a question of this kind is referred, and whose duty it is to ascertain the facts, collect the evidence, and report to the Gov. ernment. Such an officer is, no doubt, better adapted to such a purpose

British act of 1870.

than a collector of customs. But can it be said to have been the duty of the British government, not having similar district officers, to appoint such, at the different ship.building ports, with a view the better to protect belligerents against ships being equipped or armed against them?

Another advantage of the American system is, that the duty of adjndicating in such a case devolves on a judge in the court of admiralty instead of on a jury, who are sometimes apt to be swayed in favor of their own countrymen when sued at the instance of foreigners. But this relates to the condemnation of vessels, not to their seizure. And with the exception of the Florida and Alabama, every vessel the seizure of which conld be asked for, as instanced in the cases of the Alexandra, the Pampero, and the iron-clad rams at Birkenhead was seized and prevented from doing any harm to the commerce of the United States. The Alexandra, it is true, was released after trial in England, but she was seized again at Nassau, and not liberated till after the close of the war. Practically speaking, therefore, in the later cases, everything was accomplished which could bave resulted from the most perfect nachinery that could have been devised for such a purpose.

Great stress is laid in the pleadings of the United States on the British act of 1870, passed on the report of the neutrality commissioners. The act is held up as the standard of ventral duty and of the requirements necessary to give effect to it. No doubt that act introduced very material changes, and did much to strengthen the hands of the executive. It made it an offense to build, or agree to build, or procure to be built, as well as to equip or arm. It did away with all question as to intent, by making it sullicient if the party doing any of these things knows, or even has reasonable cause to believe, that the vessel will be employed in the service of a belligerent. To dispatch a vessel with such intent, knowledge, or reasonable cause of belief, is added to the category of offenses.

Still more remarkable is the new proceeding introduced, in addition to the former process, for the condemnation of the vessel, for the purpose of testing the character of a suspected ship. If the secretary of state, or chief executive anthority in any place, is satisfied that there is reasonable and probable cause for believing that a ship within Her Majesty's dominions has been, or is being, built, commissioned, or equipped, contrary to the act, and is about to be taken beyond the limits of such dominions, he may issue his warrant to any officer of the customs, or public officer, or commissioned officer of the army or navy, who is thereupon to seize, search, and detain the ship. The owner may apply, indeed, to the court of admiralty for the restoration of the vessel; but it is incumbent upon him, in order to obtain it, to establish that the act has not been contravened. So that the order of procedure is reversed. Instead of it being necessary for the prosecutor to establish at all events a prima facie case of guilt, the owner has, in the first instance, to establish innocencea proceeding alien altogether to English ju isprudence.

No doubt these are great changes possibly improvements. But is it just to say that the pre-existing law was so essentially defective as that the British nation can be held liable by reason of its imperfections ? Law, like all other human institutions, is in a coustant state of progress and change. New events, now conjunctures, new combinations of circumstances, the lessous of experience, from time to time point out to the lawgiver the necessity of altering the work of the past to adapt it to the requirements of the present. Is every amendment of the law to carry with it the condemnation of the legislation which preceded it?

At all events, it does not lie in the mouths of Americans to say so in the present instance. I hare just passed their own law in review. According to it, it is not an offense to build or equip a vessel anless it be also armed; knowledge, or reasonable ground of belief, is not, as under the act of 1870, sufficient; the intent must be proved. The intermediate process given by the latter act, and by which the burden of proving the innocent character of the ship, in the first instance, is cast on the owner, is unknown.

For all practical purposes, the neutrality laws of the United States and of Great Britain, prior to the late war, were substantially the same. With this model act now for two years before them, the United States have done nothing to bring their law up to the standard of it. How can they now, with any pretense of justice, ask that Great Britain shall be tried by the test of a law which is as much in advance of their own present law as it is of the past law of Great Britain ?

When, notwithstanding this, one reads in the United States argunent that “the British government has stood obstinately on confessedly defective legislation of neutrality;" that“ it is not yet emancipated from the national prejudices which obstructed Mr. Canning;" that it “still lags behind the United States in appreciation of the true prineples of public law, which lie at the foundation of the relations of independent sovereign states,” it is difficult to express the feeling which arises consistently with the seriousness which belongs to the present occasion.

It is true that it is not the law of the United States, but that of Great Britain, that is now on its trial. It may not be enough to say that it Great Britain is black America is no whiter. It may not be enough to say, as Great Britain might do in so many instances, 6 Si in me iniquus es juder, eodem ego te crimine condemnabo." Yet a comparison of the respective laws of the two comtries is by no means superfluous. For a remark is here to be made, which applies also to many other parts of the present controversy, namely, that the Government of the United States can have no right to require more of that of Great Britain than it could itself have rendered had the position of the two conntries been re. versed, and Great Britain had been the belligerent and the United States the neutral power. For, in the absence of convention, equality and reciprocity lie at the very root of international obligations, and no nation has a right to demand of another more than under the like cir. cumstances it would have been able itself to render. The statement I have quoted above from the United States argument,

that "the British government has stood obstinately on conmeumeue or the fessedly defective legislation of neutrality,” refers, I preaut during the cv sume, to the communications which passed during the will

between the government of Great Britain and that of the United States on the subject of an amendment of the British foreignenlistment act. With respect to these communications, the facts, shortly stateri, are as follows: In 1861, and again 1863–64, Mr. in Adams suggested (in the first instance, with a view to check the British colonial trade in articles contraband of war) that it might be of advantage if the British legislature would pass an act similar to the tem. porary act passed by the United States in 1838, which had reference only to expeditions or exports of arms (not carried by sea) betweell the United States and any foreign territory conterminous with the United States. The precedent of this legislation was actually followed by Canada in 1861, when events made it requisite. No other request

for

war.

92

2

for an alteration of this British law was at any time made on the part of the United States.

On the 19th of December, 1862, Earl Russell wrote thus to Mr. Adams:

I have the honor to inform you that Her Majesty's government, after consultation with the law-officers of tbe Crown, are of opinion that certain amendments might be introduced into the foreign-enlistment act, which, if sanctioned by Parliament, wonlel bave the effect of giving greater power to the executive to prevent the construction, in British ports, of ships destined for the use of belligerents. But Her Majesty's government consider that, before submitting any proposals of that sort to Parliament, it would be desirable that they should previously communicate with the Government of the United States, and ascertain whether that Government is willing to make similar alteratious in its own foreign-enlistment act, and that the amendments, like the original statute, should, as it were, proceed pari passu in both countries.

I shall accordingly be ready to center at any time with you, and to listen to any suggestions which you may have to make by which the British foreign-enlistment act and the corresponding statute of the United States may be made more efficient for their purpose.

In reply to this overture, (which was received with equal courtesy and caution by the Government of the United States,) Mr. Adams was instructed not to make any suggestions whatever, but to state (according to Earl Russell's report of the conversation) that bis Government were ready to listen to any propositions Her Majesty's government had to make, but they did not see how their own law on this subject could be improved,” or (according to Mr. Adams's own report) that the Gov. ernment of the United States considered their own law as “ of very sutlicient rigor." Earl Russell thereupon said that the cabinet, under the advice of the lord chancellor, (Lord Westbury,) had come to the same conclusion with reference to the law of Great Britain,

so that no further proceedings need be taken at present on the subject.” Earl Russell's overture was not founded on any opinion of the insufficiency of the British law for the performance of the international obligations of Great Britain, but simply on the advice of the law.officers that cer: tain amendments might be possible which would increase the power of the executive government to deal with cases within the scope of that law. There could be 110 possibility, however, of carrying such amendments through Parliament unless similar amendments had been simultaneously made in the law of the United States, and the reply of the United States, throwing upon Great Britain the whole responsibility of making propositions in the matter, gave no assurance that those propositions, if made, would lead to any useful result. If anything had been needed to confirm this impression, it would be found in Mr. Seward's ausser, when informed of what had passed. Writing to Mr. Adams on the 2d of March, 1863, he says:

It remains for this Government only to say that it will be your duty to urge npon Her Majesty's government the desire and expectation of the President, that henceforward Her Majesty's government will take the necessary measures to enforce the execu: tion of the law as farthfully as this Government has esecuted the corresponding statutes og the United States. 3

Not content with instituting a comparison between the neutrality law of Great Britain and that of the United States, the American case has gone on to compare both with the municipal law foreign laws. of other states; which comparison it seeks, by some strange manipulation, to turn in favor of the United States, though, as we have seen, the laws of the two countries were, at the time in question, substantially the same.

l'nited States Appendix, vol. ii, p. 92. 2 British Appendix, vol. vi, No. 1, p. 48; United States Documeuts, vol. I, p. 663. 3 United States Documents, vol. i, p. 669.

Compirison with a

Law of Austria.

Having gone carefully through the laws of the leading maritime nations, I find none in which the equipping or arming of vessels for the use of a belligerent was, prior to the breaking out of the American civil war, prohibited, except under circumstances which would make it a violation of neutrality according to international law. After the breaking ont of the war, in one or two countries, as in France and Brazil, the law in this respect was put on the same footing as the law of Great Britain and America prior to the dispute. In some, as in Italy, it has been altered since. In these cases the altered law is referred to in the argument of the United States as though it had existed at the time of the war. In the laws of those states which had hitherto taken but little part

in maritime affairs, no law on the subject of equipping or

arming ships was perhaps to be expected. I only observe, therefore, as it were in passing, that Austria had no law relative to this subject.

In answer to an inquiry made on the part of Her Majesty's govern. ment, the Austrian minister for foreign affairs thus responds:

Apart from the principles which lie at the foundation of this declaration, (the declaration of Paris of 1856,) there exists, however, no law in Austria, nor any other order generally binding, which could be made to apply to violations of neutrality by Austrian subjects.

The imperial government have endeavored to supply this want in cases of war between other States, by promulgating in legal forms special regulations for the preservation of neutrality applicable only to the war in question. Thus, in the year 1954, in consequence of the war then existing, the ministerial ordonnance of May 23, 1351, was promulgated, of which copy is inclosed herewith.

In such special declarations the generally acknowledged principles of international law, as well as the known views of the belligerent powers on certain points, liave been taken into consideration, in order, as much as possible, to obviate any complaints of infrmgement of neutrality.

There does not exist, however, a law of this kind applicable to all future occasions, and more particularly there are no general laws in Austria prohibiting the constrne. tion, equipment, or manning of ships (in Austrain harbors) which are destined for belligerent powers, or are suspected of being so.'

There is nothing, therefore, to prevent the equipping or arming of ships for a belligerent by the laws of Austria. In like manner it appears, from the note furnished to Her Majesty's

representative at Berlin, that no law exists in Prussia pro

hibiting the building or sale of ships. The Swiss law on the subject of neutrality has been introduced in the

United States argument in terms of laudation ; but as in the

nature of things it can have nothing to do with maritime neutrality, I presume it has only been brought forward out of compliment to our Swiss colleague, and I need say nothing further ou the subject. I pass on to maritime nations. And first, as to France. It is certain

that there is no prohibition in the French codes against the

building or equipping of ships for a belligerent. The only provision relative to a breach of neutrality by a French subject is to be found in the eighty-fourth and eighty-fith articles of the code penal, which are in these terms:

ART. 94. Quiconque aura, par des actions hostiles non-appronvées par le gonrernement, exposé l'état à une déclaration de guerre, sera puni du bannissement; et, si la guerre s'en est suivie, de la déportation.

ART. 85. Quiconque aura-par des actes non approuvés par le gouvernement, exposé des Français à éprouver des représailles sera puni du bannissement.

Report of neutrality laws commission, p. 39, British appendix, vol. iii.
? Ibid., p. 65.

a

Law of Prussia.

Law of Switzerland

Law of France.

« iepriekšējāTurpināt »