tween other States with whom Great Britain might be at peace, and to inquire and report whether any and what changes ought to be made in such laws for the purpose of giving to them increased efficiency, and bringing them into full conformity with international obligations.i That Commission held twenty-four sittings, and finally reported that the old Foreign Enlistment Act of 1819 was capable of Report of that improvement, and might be made more efficient by the Commission. enactment of several provisions set forth in the report.2 Among other things the Commission recommended that it be [115] made a statutory offense to "fit out, arm, dispatch or cause to be dispatched, any ship, with intent or knowledge that the same shall or will be employed in the military or naval service of any foreign Power in any war then being waged by such Power against the subjects or property of any foreign belligerent Power with whom her Majesty shall not then be at war." It was also proposed to make it a statutory offense to "build or equip any ship with the intent that the same shall, after being fitted out and armed, either within or beyond Her Majesty's Dominions, be employed as aforesaid ;" and it was proposed that the Executive should be armed with summary powers similar to those conferred upon the President of the United States by the eighth section of the act of 1818. It was further proposed to enact that "in time of war no vessel employed in the military or naval service of any belligerent, which shall have been built, equipped, fitted out, armed, or dispatched contrary to the enactment, should be admitted to any port of Her Majesty's Dominions."5 The Tribunal of Arbitration will not fail to observe that these recommendations were made by a board composed of the most eminent judges, jurists, publicists, and statesmen of the Empire, who had been in [116] public life and had participated *in the direction of affairs in Great Britain during the whole period of the Southern rebellion; and that they were made under a commission which authorized these distinguished gentlemen to consider and report what changes ought be made in the laws of the Kingdom, for the purpose of giving to them increased efficiency, and bringing them into full conformity with the international obligations of England. The Tribunal of Arbitration will search the whole of that report, and of its various appendices, in vain, to find any indication that that distinguished body imagined, or thought, or believed that the measures which they recommended were not "in full conformity with international obligations." On the contrary, the Commissioners say that, so far as they can see, the adoption of the recommendations will bring the municipal law into full conformity with the international obligations. Viewing their acts in the light of their powers and of their instructions, the United States feel themselves justified in asking the Tribunal to assume that that eminent body regarded the acts which they proposed to prevent by legislation, as forbidden by International Law. 6 The report of the Commissioners was made in 1868, but was not acted upon until after the breaking out of the late war between The Foreign En Germany and France. On the 9th of August, 1870, listment Act of 1870. [117] Parliament *passed "An act to regulate the conduct of Her Majesty's subjects during the existence of hostilities between foreign States with which Her Majesty is at peace." This act, which may be found 1 Vol. IV, page 79. 4 Vol. IV, page 81. 2 Vol. IV, page 80. 3 Vol. IV, pages 80, 81. in Volume VII,1 embodies the recommendations of the commissioners which are cited above, except that which excludes a ship which has been illegally built or armed, &c., &c., from Her Majesty's ports. Judicial construc Soon after the enactment of this statute, a vessel called the "International," was proceeded against for an alleged violation of tion of that act. its provisions. The case came before Sir Robert J. Philli more, one of Her Majesty's Commissioners who signed the report in 1868. In rendering his decision on the 17th of January, 1871, he said: "This statute, passed during the last session, under which the authority of this court is now for the first time evoked, is, in my judgment, very important and very valuable; strengthening the hands of Her Majesty's Government, and enabling them to fulfill more easily than heretofore that particular class of international obligations which may arise out of the conduct of Her Majesty's subjects toward belligerent Foreign States, with whom Her Majesty is at peace." 2 *These eminent commissioners and this distinguished jurist [118] have chosen their words with the precision which might have been expected of them. They declare that, in the execution of the commission, they have only sought to bring the law of England into harmony with the law of nations. Their functions ceased when they recommended certain changes with that object in view. Parliament then took up the work and adopted their suggestions. Then, as if to prevent all misapprehension, one of the commissioners, acting as a judge, held that the act of 1870 is intended to bring the law of the realm into harmony with the international duties of the Sovereign. The United States confidently submit that the new provisions, inserted in the act of 1870, were intended, at least as against is a part of the com- the British Government, as a re-enactment of the law of mon law of England. nations, as understood by the United States to be applicable to the cases of the Alabama, and other ships of war constructed in England for the use of the insurgents. International law They conceive that Great Britain is committed to the doctrines therein stated, not merely by the articles of International Law expressed in its statutes, but also by the long-settled Common Law of England confirmed by acts of Parliament. *The act of 7 Anne, ch. 12, enacted in consequence of the viola- [119] tion of the law of nations by the arrest for debt of the Ambassador of the Czar, Peter the Great, in London, is prominent in the history of the legislation of Great Britain. 3 Lord Mansfield, commenting on this act in the case of Triquet vs. Buth, 3 Burrow's Reports, p. 148, says that this act was but declaratory. All that is new in this act is the clause which gives a summary jurisdiction for the punishment of the infraction of the law. He further remarks that the Ambassador, who had been arrested, could have been discharged on motion. This act of Parliament was passed as an apology from the nation. It was sent to the Czar, finely illuminated, by an Ambassador Extraordinary, who made the national excuses in an oration. "The act was not occasioned by any doubt whether the law of nations, particularly the part relative to public ministers, was not part of the law of England, and not intended to vary an iota from it." Lord Mansfield further says, in reference to the case of Brevot vs. Barbot, that 1 Vol. VII, page 1. 2 London Times, January 18, 1871. See also Admiralty and Ecclesiastical Reports, Vol. 3, page 332. See also Report of the Debate on the Foreign Enlistment Act in the House of Commons, in the London Times of August 2, 1870. 3 See Phillimore's International Law, vol. 2, ch. 8, section 194. Lord Talbot declared "that the law of nations, in its full extent, was part of the law of England;" and adds, "I remember, too, Lord Hard wick declared his opinion to the same effect, and denying that Lord [120] Chief Justice Holt ever had any doubt as to the law of nations being part of the law of England, upon the occasion of the arrest of the Russian Ambassador."1 To the same effect is the remark of Lord Tenterden, when he says "that the act of Anne is only declaratory of the common law. It must, therefore, be construed according to the common law, of which the law of nations must be deemed a part." 172 Blackstone states the doctrine in general terms as follows: "The law of nations is a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world, in order to decide all disputes, to regulate all ceremonies and civilities, and to insure the observance of justice and good faith, in that intercourse which must frequently occur between two or more independent States, and the individuals belonging to each. * * * * * * "In arbitrary States this law, wherever it contradicts, or is not provided for by the municipal law of the country, is enforced by the [121] Royal Power; but since in England no Royal Power *can intro duce a new law or suspend the execution of the old, therefore the law of nations (whenever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the common law of the land. And those acts of parliament which have from time to time been made to enforce this universal law, or to facilitate the execution of its decisions, are not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the Kingdom; without which it must cease to be a part of the civilized world.”3 In the presence of these authorities it cannot be doubted that the law of nations enters integrally into the common law of England, and that any enactment by Parliament on this point derives force only from its conformity with the law of nations, having no virtue beyond that, except in so far as such enactment may afford means for the better enforcement of that law within the realm of England. That eminent judge and jurist, Lord Stowell, even goes so far as to say that, while an act of Parliament can affirm the law of nations, it cannot contradict it or disaffirm it to any effect as respects foreign Governments.4 [122] *Lord Stowell's position is in perfect accordance with the ob servation of Lord Mansfield, in another case, viz: Heathfield vs. Chilton, that, "The privileges of public ministers and their retinue depend upon the law of nations, which is part of the common law of England. And the act of Parliament of 7 Anne, ch. 12, did not intend to alter, nor can alter the law of nations." Duties recognized lamation of Neu The next act of the British Government to which the United States invite the attention of the Tribunal, as showing to some extent that Government's sense of its duties toward the by the Queen's Proc United States, is the Proclamation of Neutrality of May 13, 1861, already alluded to. 1 See further 1 Black. Com., pp. 43, 354; 1 Woodson's Lectures, p. 31. 2 Novillo vs. Toogood, 1 Barnwell and Creswell's Reports, 562. trality. 3 Blackstone's Com., vol. 4, ch. 5. See also Lord Lyndhurst's opinion, ante, page 61. 4 The Louis, Dodson's Admiralty Reports, vol. 2, p. 210. 5 Heathfield vs. Chilton, 4 Burrows, p. 2016. This observation of Lord Mansfield is ited and adopted by Phillimore, vcl. 3, p. 541. It is not claimed that a belligerent has the right, by the custom of nations, to require a neutral to enforce in its favor an executive Proclamation of the neutral, addressed to its own citizens or subjects; but it is maintained that, as between Great Britain and the United States, there is a binding precedent for such a request to Great Britain. In 1793, during General Washington's administration, the representative of Great Britain in the United States pointed out to Mr. Jefferson, who was then Secretary of State, acts which were deemed by Her Britannic Majesty's Government to be "breaches of neutrality," [123] doue "in contravention of the President's Proclamation" of Neutrality, and he invited the United States to take steps for the repression of such acts, and for the restoration of captured prizes. It appears that the United States complied with these requests.1 Relying, therefore, upon this precedent, established against Great Britain, rather than upon a right under the laws of nations, which can be asserted or maintained against the United States or against other nations, the United States invite the attention of the Tribunal to the fact that two principles, in addition to those already deduced from the Foreign Enlistment Act of 1819, appear to be conceded by the Procla mation of May 13, 1861: 1. That it is the duty of a neutral to observe strict neutrality as to both belligerents during hostilities. Definition of neutrality. Neutrality is defined by Phillimore "to consist in two principal circumstances: 1. Entire abstinence from any participation in the war; 2. Impartiality of conduct toward both belligerents." "This abstinence and this impartiality must be combined in the clfaracter of a bona-fide neutral." Bluntschli defines it thus: La neutralité est la non-participation à la guerre. Lorsque l'état neutre soutient un des belligérants, il prend *part à la guerre, en faveur de celui qu'il soutient, et dès [124] lors il cesse d'être neutre. L'adversaire est autorisé à voir dans cette participation un acte d'hostilité. Et cela n'est pas seulement vrai quand l'état neutre livre lui-même des troupes ou des vaissoeux des guerre, mais aussi lorsqu'il prête à un des belligérants un appui médiat eu permettant, tandis qu'il pourrait l'empêcher, que, de son territoire neutre, on envoie des troupes ou des navires de guerre.' Hautefeuille says: "Cet état nouveau impose aux neutres des devoirs particuliers: ils doivent s'abstenir complètement de toute acte d'immixion aux hostilités et garder une stricte impartialité envers les deux belligérants. * L'impartialité consiste à traiter les deux belligérants de la même manière et avec une parfaite égalité dans tout ce qui concerne les relations d'état à état.” * * Lord Stowell says: "The high privileges of a neutral are forfeited by the abandonment of that perfect indifference between the contending parties, in which the essence of neutrality consists." Calvo collects or refers to the definitions given by the various writers on International Law, and expresses a preference for Hubner's: "La mas *aceptable es la de Hubner, por la claridad y precision [125] con que fija, no solo la situacion de las naciones pacificas, sino la extension que tiene sobre ellas el status belli.” 1 Vol. IV, pages 94-102. 23 Phillimore, Ch. IX. 3 Opinion impartiale sur la question de l'Alabama. Berlin, 1870, page 22. 4 Nécessité d'une loi maritime pour régler les rapports des neutres est des belligérants. Paris, 1862, page 7. 5 The Eliza Ann, (1 Dodson's Reports, 244.) 6 Calvo Derecho Internacional, tom. 2, page 151, § 608. 2. The proclamation also distinctly recognizes the principle that the duties of a neutral in time of war do not grow out of, and are not dependent upon, municipal laws. Offenders against the provisions of the act are therein expressly forewarned that such offenses will be "acts in derogation of their duty as subjects of a neutral sovereign in the said contest, or in violation or contravention of the law of nations in that behalf. British officials dur· The next acts of the British Government, indicating its sense of its duties as a neutral toward the United States, to which the Duties recognized attention of the Tribunal is invited, are the several instruc- by instructions tions issued during the contest, for the regulation of the ing the insurrection. official conduct of its naval officers and of its colonial authorities toward the belligerents.1 These various instructions, state or recognize the following principles and rules: 1. A belligerent may not use the harbors, ports, coasts, and waters of a neutral in aid of its warlike purposes, or as a station or place of resort for any warlike purpose, or for the purpose of obtaining any facilities of warlike equipment. [126] *2. Vessels of war of the belligerents may be required to depart from a neutral port within twenty-four hours after entrance, except in case of stress of weather, or requiring provisions or things for the crew, or repairs; in which case they should go to sea as soon as possible after the expiration of the twenty-four hours. 3. The furnishing of supplies to a belligerent vessel of war in a neutral port may be prohibited, except such as may be necessary for the subsistence of a crew, and for their immediate use. 4. A belligerent steam-vessel of war ought not to receive in a neutral port more coal than is necessary to take it to the nearest port of its own country, or to some nearer destination, and should not receive two supplies of coal from ports of the same neutral within less than three months of each other. Correspondence be ernments in 1793, 1794. The attention of the Tribunal is further invited to the official opinions expressed by the representative of Great Britain in the United States during the administration of President Wash- tween the two Govington upon the duties of a neutral toward a belligerent; and to the acts of the Government of the United States during that administration, preceding, and accompanying, and subsequent to those expressions of opinion; and to the treaty concluded between the United States and Great Britain in 1794. [127] *The first acts took place in the United States in 1793, a year before the passage of the first American Neutrality Law, when the United States had nothing but the law of nations and the sense of their duties as a neutral to guide them. The envoy from the new French Republic, M. Genet, arrived at Charleston, in the United States, early in April, 1793, with the purpose of making the ports and waters of the country the base of hostile operations against Great Britain. The steps which he took are fairly referred to by Lord Tenterden in the memorandum already cited.2 The Capital was then at Philadelphia, several hundred miles distant from Charleston, with few regular means of communication between the two towns. The Government of the United States was in its early infancy. Four years only had passed since it was originated, and it had not been tested whether the powers confided to it would prove sufficient 1.Vol. IV, page 175, et seq. 2 Vol. IV, page 93, et seq. |