« AnteriorContinuar »
have accomplished the task of completing its perusal. It may also, perhaps, be liable to the criticism of being, at times, somewhat rhetorical, and rather smart and pungent in some of its reflections on the United States, and her public men. It never, however, lowers the dignity of the occasion, or the position of the writer, by unworthy imputations. We were sorry to read, in the opinion of Mr. Adams, who gained so much respect in this country, and who knows us so well, the following sentence: 'And by this proceeding Her Majesty's Govern'ment appear, at least in my eyes, practically to have given • their formal assent to the principle in international law that
success SANCTIFIES A FRAUD' (p. 4363). The capitals are those of the writer, or of the · London Gazette,' not ours. Probably some too emphatic expressions such as this elicited the Chief Justice's retorts. In one part, however, of his observations we entirely sympathise : we mean in the welldeserved rebuke which he administers to the offensive and intolerable personalities of the American pleadings—invectives, which, if they had occurred in official despatches, must have led to a suspension of diplomatic relations, and which were, in our opinion, not more excusable because inserted in a forensic state paper, or delivered in an oral pleading. Sir Alexander Cockburn says-and his words will find an echo, if we mistake not, on both sides of the Atlantic :
Of the Cabinet which has been thus assailed, three distinguished members are no more.
But he who, at the difficult time in question, presided over the foreign relations of Great Britain, still lives among us in the fulness of years and honour. There have, of course, been many who, in the strife of party politics, have been opposed to Earl Russell ; there have been others who have differed from him in particular incidents of his political conduct; but never did it occur to political enemy-personal enemy he never could have had—to question for a moment the lofty sense of honour, the high and unimpeachable integrity, the truthfulness, the straightforwardness, which have characterised the whole of his long and illustrious career. When the history of Great Britain during the nineteenth century shall be written, not only will there be none among the statesmen who have adorned it, whose name will be associated with greater works in the onward path of political progress
than that of Earl Russell, but there will be none to whom, personally, an admiring posterity will look back with greater veneration and respect. That this distinguished man should feel deeply aggrieved by the unworthy attack thus made on the Government of which he was a leading member, and on himself personally, it is easy to understand: but there are attacks which recoil upon those who make them; and of this nature are aspersions on the honesty and sincerity of Earl Russell. I have called this an "unexpected" course, for assuredly neither
the British Government nor the British people were prepared to expect that, after Great Britain had not only expressed, openly and before the world, her “regret” that vessels should have left her shores which afterwards did damage to American commerce, but had voluntarily consented to make good that damage, if it could be shown that any want of sufficient care on the part of the British authorities had rendered the equipment and evasion of those vessels possible—on an occasion when, in the peaceful and amicable settlement of any claim the United States might have against Great Britain, the remembrance of past grievances or past resentments was to be for ever buried, and the many ties which should bind these two great nations together, drawn closer for the time to come-advantage should be taken to revive with acrimonious bitterness every angry recollection of the past, and, as it would seem, to pour forth the pent-up venom of national and personal hate. Deploring the course which has thus been taken, as one calculated to mar the work of peace on which we are engaged, I comfort myself with the conviction that a great nation, like the people of the United States, seeing in the present attitude of Great Britain a cordial and sincere desire ot' reconciliation and enduring friendship, animated itself by a kindred spirit, will not approve of the hostile and insulting tone thus offensively and unnecessarily adopted towards Great Britain, her statesmen, and her institutions, throughout the whole course of the case and argument presented on behalf of the United States.'
We have given these passages at full, because whatever opinions may be entertained of the advantages of international arbitration, or of the present remarkable example of it, it would become impossible for any nation which respected itself to engage in it, if it were to be made the vehicle of railing accusations and of national rancour, which no diplomatist would venture to address or exhibit to another. These things should have been rebuked by the Tribunal, and it should not have been left to the representative of Great Britain to vindicate the first elements of international propriety and courtesy.
Passing by, however, these minor criticisms, and addressing ourselves to the substance of this remarkable treatise, we cordially express the highest admiration of it. Whether as regards the discussion of legal principles or the analysis of the facts before him, it is lucid, vigorous, copious, and exhaustive. It is plain from its exordium that the Lord Chief Justice felt painfully the chains which the Rules of the Treaty imposed on him. He regrets that the whole question had not been left open to the tribunal to be decided on the true principles of international law and justice. The Rules, he says, and says very truly, were a great and generous concession ; and though • the effect of it might be a pecuniary sacrifice on the part of • Great Britain, it was cheerfully made,' and, he hopes, would
be appreciated. The United States, however, hardly seem to have appreciated it, for they professed to hold it to be no concession at all. But the main object which the Chief Justice seems to have in view in placing on record this elaborate exposition of his opinions was twofold—to vindicate the true principles of international law, and to vindicate the honour, good faith, and reputation of the country to which he belongs. We think he has accomplished the double task with singular power and complete success.
He deals with his subject in the following order :
1. The true principle of international law as to the building, equipping, and furnishing of vessels of war by a neutral for a belligerent, illustrating the subject by copious citations from works of authority.
2. The history and nature of the Foreign Enlistment Act. 3. The legal import of due diligence.'
4. The means at our disposal for the enforcement of the Act, compared with those of other nations.
5. Historical illustrations of the proceedings of other nations, especially the United States, when they were neutrals.
6. The evidence of the thorough earnestness and legality of the British Government, as evinced by their acts.
And after this elaborate and detailed disquisition he proceeds to deal with the escape of the vessels, the commissions granted by the Confederate Government, and the supplies furnished in British ports.
We have no intention of following him through this long and varied journey. The escape of the “ Alabama and her .
' companions is now in the regions of history, and need trouble
As far as the good faith of this country was concerned the demonstration is complete; and, judged by the standard of international law for which the Chief Justice contends, there never was a shadow or a pretence for the claims of the United States—not even, as we think, in the case of the 'Alabama' herself. But we pursue this part of the theme no farther, and only intend shortly to consider those matters which will require future adjustment—the general principles involved in the three Rules, the effect of belligerent commissions, and the lawfulness of supplies furnished to these vessels in British ports abroad. These are all questions which are still of great moment, and may be considered without the slightest reference to America.
Sir Alexander Cockburn commences by demonstratingwhich he does, as we think, conclusively- that the law of the Treaty was never recognised as international law before the
us no more.
Treaty. The view which he takes is in entire accordance with that which we indicated in our number for last April—that dealing in vessels of war is only one form of dealing in contraband of war; that no neutral Government is under any international obligation to prevent its own subjects from dealing in contraband of war ; that the only belligerent right in regard to contraband of war is that of capture at sea : and that the Foreign Enlistment Act was a purely municipal statute, in administering which we were under no international obligation, and was not in substance an international treaty. This theme he exhausts with such copious and thorough command of authority, and with so much fullness and research, as to baffle analysis or criticism. The views of all the publicists who have written or expressed opinions on this subject are digested into a complete repertory of jurisprudence. There is nothing left to be suggested in addition to his full and vigorous exposition. He treats very thoroughly of the opposite school of modern writers, of whom Hautefeuille and Blintschli are the leaders; but we think he demonstrates, beyond all cavil, the truth of the propositions to which we have referred.
On one point his reasoning is very conclusive and timely. In some of the discussions, both in Parliament and out of it, an idea has prevailed that the sale, by a neutral to a belligerent, of a vessel adapted for war, made the port of delivery a base of hostile operations, and thereby distinguished that particular traffic from the ordinary commerce in contraband. Sir Alexander Cockburn refutes this notion very thoroughly, and shows that by the law of nations the traffic in ships of war, in the ordinary case, was simply traffic in contraband. Indeed, the United States never maintained that the mere sale of a ship intended for warlike purposes had any other effect. They make the case of the Confederates a special one, and contend that as the Confederates had no base of maritime operations, the port from which the vessel departed must be considered a base of hostile operations; otherwise the vessel, they say, had no base; in other words, that the ship-builder might deal with the Federals, but might not deal with the Confederates.
There may be some show of reason in this view, and it has its force. But it could only be applied to a belligerent like the Southern States, hermetically sealed from the rest of the world. It is enough for our purpose that it can only apply to the special case; and that as a general rule the sale to a belligerent of a ship suited for war in the Mersey or the Clyde does not make the territory of Liverpool or Glasgow a base of
hostile operations, any more than sailcloth bought at Dundee, rifles purchased at Birmingham, or men recruited in Darmstadt would have the same effect in regard to these places. The Lord Chief Justice defines the term base of operations' with his usual precision :
"The term “ base of operations” is a military term, and has a well. known sense. It signifies a local position which serves as a point of departure and return in military operations, and with which a constant connexion and communication can be kept up, and which may be fallen back upon whenever necessary. In naval warfare it would mean something analogous-a port or water from which a fleet or ship of war might watch an enemy, and sally forth to attack him, with the possibility of falling back on the port or water in question for fresh supplies, a shelter, or a renewal of operations.' (P. 4269.)
The authorities the Chief Justice quotes entirely confirm the accuracy of his definition, and we are glad to dispel an impression which had at one time prevailed in quarters too acute in general for the reception of fallacies.
The general result of his dissertation on the international principle-which is a mine of learning, all ore, in which no one can dig in vain-is thus summarised :
But it is here, when we proceed to apply, practically, the test of due diligence to the conduct of the Government, that the anomaly of the present position, to which I adverted in the outset, makes itself sensibly felt.
• As I have shown upon abundant anthority, the equipping of a ship for sale to a belligerent, in the way of trade, was at the time in question no otience against the law of nations, or a violation of neutrality, though it was an offence against the municipal law of Great Britain. The Government of Her Majesty, though, like every other Government, it was bound to prevent any known violation of the law, was under no obligation to a belligerent to enforce the law for his benefit, and incurred no liability to such belligerent for not doing so, so long as the law was not enforced against the latter any more than against his enemy. Any hostile expedition permitted to leave the shores of Great Britain, which the Government by the exercise of reasonable diligence could have prevented, would have amounted to a breach of neutrality, for which it might have been held responsible. But for the mere equipping of a vessel, by ship-builders in the way of trade, though intended for a belligerent, the Government would not be responsible; and though every Government is no doubt bound to prevent infractions of the law, so far as it knows of them and can prevent them, still this general duty which it owes to its own country, is obviously a very different thing from the responsibility it incurs as representing the State, in relation to a foreign Power. In the one case, the maintenance of the law is left to the ordinary authorities, and to the individuals who have occasion to seek protection or redress from its operation; in the other, the action of the Governnient log iis immediate officers becomes necessary for its own