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protection. So doubt, as a matter of comity, and from a sense of justice, a Government would pay ready attention to the representatives of a belligerent Power complaining of an infraction of the municipal law in a matter in which the interests of the belligerent were affectedmore especially in a matter lying as it were on the contines of municipal and international law--and would call into action the preventive powers it possessed, to keep the law from being broken. But, under such circumstances, it might fairly leave to the representative of the belligerent to make out a case for the application of the law, just as it is left so to do to an ordinary individual who desires to put the law in motion in order to obtain redress on bis own behalf. Hence, no doubt, had arisen the practice, common to the Governments both of the Cnited States and Great Britain, of requiring the representative of a belligerent Power, invoking the aid of the Government, to produce evidence by which the action of the Executive, when brought to the test of judicial inquiry, can be justified and upheld.'
While entirely coinciding in the accuracy of these views, we feel some surprise that one illustration of the argument has been so uniformly omitted. In considering the effect given to the Foreign Enlistment Act by the Treaty of Washington, foreign enlistment itself is always left entirely out of view. It is singular that the very acts on the part of neutrals which gave birth and name to this statute seem to be entirely forgotten. Great Britain has ships to sell, but she has few men to spare.
Other nations stand in a position exactly the reverse. Is she, as a neutral, to be prohibited from traffic in ships, while the recruiting-sergeant is to traverse unmolested the whole neutral territory of Europe? The United States were as much in want of men as the Confederate States were in want of ships, and they procured them by contributions of men levied from the civilised world. Had the Confederates prospered and become a strong people, would their claims on those nations who had permitted enlistment of their subjects in the ranks of the North not have been quite as reasonable as those which were the theme of the deliberations of the Tribunal at Geneva ? Gay said of Aye’and. No:
"They parted with a thousand kisses,
And henceforth fight for pay, like Swisses.' It might have been startling to have been told, on that historic soil, that to permit the hiring of mercenaries was a breach of neutrality, and warranted reprisals ; yet this subject also must be regulated, and subjected to the same regimen of duty and due diligence which is applied to the building of ships.
But the far more important, and indeed the momentous, question for us is, where are we now to turn? Are we to proceed
to fulfil the further obligation of the Treaty, and to commend the three Rules, with the Genevan commentary on them, to other Powers for their acceptance, even although we should be persuaded by the Chief Justice that so construed their basis is erroneous ? Are we to invite the nations of the Continent to join with us in accepting a code of neutral obligation which binds them on the one hand to heavy burdens, without regard to their internal legislation, and on the other gives no rule or standard by which the nature and extent of the obligation can be measured ? To accredit the Genevan version of the three Rules to foreign Powers is manifestly out of the question. After all this wandering we think we must revert to first principles again and start from the proposition which Sir Alexander Cockburn has demonstrated, that traffic in ships of war is only traffic in contraband, which no neutral is internationally bound to prevent.
We believe we shall find no unreasonable haste on the part of America on this head in pressing the fulfilment of the clause of the Treaty, nor any difficulty in departing from it, should we desire to do so. Until
are at as to its meaning, of course it is impossible for us to recommend it to others. But we should imagine that America had no impatient desires on the subject. With the chance of neutrality in the next great war before her, she can have no wish to bind herself with these voluntary cords, now that her immediate object has been gained ; indeed, we doubt much if America is at all prepared to join us in any such enterprise. She has already prepared for herself with considerable skill two outlets for retreat, and for the evacuation of a very untenable fortress. In the first place, it would appear that her statesmen entirely agree with Sir Alexander Cockburn in regarding the sale of ships of war by a neutral State as a mere commercial transaction, which neutral States are under no international obligation to prevent, excepting in the case of blockade, a reservation which was all she required in the recent controversy. Such was the law contended for by Mr. Evarts before the Genevan Tribunal, and laid down by Mr. Adams in the letter to Lord Russell in 1863, from which we quoted. The American view, in short, is, that the international obligation under which we lay was an incident of the existing blockade, and leaves the general law on the footing on which the Chief Justice has placed it; and such, we may expect, will be the rule of their own conduct hereafter. Again, the American construction of the term “due diligence' is precisely what the
Arbitrators have adopted. Mr. Adams, in giving the grounds of his judgment, says: “In the struggle which took place in
America “due diligence” in regard to the commercial interests of one of the belligerents meant a very different thing from the same words applied to the other.' (P. 4406.) What the same words might mean in a war between this country and Russia or Germany, in which the United States were neutrals, remains as uncertain as if the Treaty had never been concluded. We have, therefore, no security whatever that the three Rules will assist us in any way in the future. We must look this state of matters steadily in the face, and consider from first principles the true position of neutral States. The Treaty and the Arbitration seem to have done nothing to aid the solution of this important general question.
In hazarding one or two general remarks on this subject, we can only suggest the direction in which, as it seems to us, the most reasonable and expedient solution is to be found. Amid the conflicting opinions to which we have referred, most of them stamped with high authority, dogmatism would be idle. The topic is surrounded with difficulties, both theoretical and practical. We can only indicate the considerations which seem most likely to lead to a stable and permanent settlement.
The first observation we make is, that it rests with Great Britain herself to decide the terms of her own neutrality. Without saying that she is strong enough to make the law on this subject for the world, she is quite strong enough to make it for herself. If she once decide, as the rule of her own conduct, what she will permit, or what she will avoid, as a neutral, future belligerents will be obliged to respect and submit to her resolution, whatever it may be, and to accept her neutrality on her own terms; and if these be once clearly announced, there would be the less risk of misunderstanding hereafter. The interests of neutrals, as well as the power of neutrals to protect and enforce them, has hitherto entered far too little into the International Code, chiefly because they have not been asserted by States having both power and right on their side. But this country is at present in a position to do lasting service to the cause of justice and of peace throughout the world, by proclaiming, as the intended rule of her conduct as a neutral, a code of law just to her own citizens, and yet mindful of the reasonable claims and expectations of belligerents.
In the second place, we should carefully consider, and come to a clear apprehension of, what is the true interest of this country, as regards the rights and demands of foreign belligerents in regard to neutral trade. Of course, the other side of the
shield must be looked at also; namely,our interest as belligerents. But, in the first instance, we must ascertain wherein our real interest as neutrals consists—not only because, as we trust, we are likely to be neutrals in the future more frequently than we have been in the past, but also because in this matter of contraband of war we have probably the largest stake in the world. Our country is an emporium of contraband of war: that is to say, our citizens manufacture and produce, as part of their ordinary commercial pursuits, in time of peace, as well as in that of war, those things which men use in warfare. We build ships, we raise coal, we manufacture iron, we make swords and bayonets, cannon and muskets, sailcloth and cordage, not from any
love or hatred of any other nation, or from a desire that one may prevail over the other, but entirely out of regard to our own interest as traders. It so happens that the materials of which these articles are made, and the skill and capital for pursuing their manufacture, are found in this country in combination, to a greater extent than in any other. It follows that any general restrictions on trading in these things must, in their direct effect, be proportionally more injurious to us than they can be to any other of the great Powers. Before, therefore, it can be our interest to increase or enlarge the restraints on dealing in such articles, by our own traders, we must see some equivalent advantage to our interests as neutrals; or else must have a proportionate prospective interest, in the event of our going to war. Now our only interest in submitting to such restrictions on our own staples, while we are neutrals, must be the danger of involving ourselves in the quarrels of belligerents. A notion seemed to pervade some of the discussions at Geneva that the rule by which a nicutral should be guided, was to treat the belligerent as he would wish the belligerent to treat him. But those who suggested such a canon of neutral policy forgot that there were two belligerents. Had we been at war we should have wished the North to refrain from selling ships to our enemy, if our enemy were blockaded by us; but we should have wished them to sell ships to us if we were ourselves blockaded. We could hardly so treat both Federal and Confederate as we should have wished to be treated if we changed places with either. The question is, do these restrictions on our trade diminish the risk we run of being involved in the foreign quarrel ? and if it does, is the benefit sufficient to compensate for the restrictions?
To the best of our judgment, the risk is at least equal either way; of the truth of which we have had the most signal example. We have not only spontaneously passed an Act for the purpose of restraining the commerce of our people, for the benefit of other nations who quarrel--but we have issued proclamations, and consented to be tormented and worried by eternal representations from one of the belligerents, about breaches of our own Act, for four consecutive years, and undertaken inquiries and prosecutions without end--for no benefit to ourselves, and all for that of our neighbour--and when all was done we not only were given no thanks, but were plunged into altercations sufficient to have produced half-adozen wars, and have been glad, as we fear we must admit, to purchase peace at the price of 3,000,0001. What worse could have befallen us had we done nothing, it is hard to see. The North would not have provoked a war with us while her struggle with the South lasted ; and we have a strong conviction that when it was over she would have considered well before risking such chances as she must have encountered by assailing us.
We are, therefore, greatly inclined to doubt whether any risk of complication is in truth avoided by these restrictive laws; or that any benefit to be derived in that direction is at all equal to the voluntary injury they inflict. On the contrary, for every restriction we impose, we give fresh handle for cavil, and more pretence for discontent and imputations. If belligerents knew that no favour of this kind would be shown them, they would at least not be disappointed; and favour it is, not neutrality, when we shut our shops because one customer wishes to purchase, and another is well supplied. But if, in addition to the restrictions placed on our trade we throw into the scale an international obligation of due diligence' to be constantly exerted by us, the standard of which is utterly uncertain, but for which other nations have an unlimited right to hold us accountable, our detriment is largely increased. To say nothing of the expense and annoyance of a perpetual system of espionage, not only on our own traders, but on both belligerents, hunting up emissaries, intercepting correspondence, not only at home, but in all our possessions over the world, such a system of liability would be more cumbrous and irksome to us than to any other nation. We have few means at hand for such a duty, and the careful constitutional limits which with us restrict the Executive, although they have proved insufficient to exempt us from liability under this Treaty, will place us at great disadvantage, and would certainly require a very large allowance of gain on the other side to make it tolerable.
Farther, we have only seen the beginning of the demands