the Counsel of the United States,) viz, that half the benefit of forfeitures is given to informers. (2.) The eighth section of the Act of 1818 is that which, in the present Argument, seems to be mainly relied on by the United States. "The American Act," says the Argument, (p. 29,)" 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 enlistments in the United States." In reality, however, the powers given to the President by that section are dependent upon conditions, which, if an exactly similar clause had been contained in the British Foreign-Enlistment Act, would have made them inapplicable to the case of the equipment in, and departure from, British territory, of an unarmed ship of war intended for the Confederates; and as, in any case of resistance to lawful civil authority in the execution of the British laws of Customs and Navigation, or of the Foreign-Enlistment Act, the seizure which Her Majesty's officers of her Customs and Navy are authorized to make may be supported by the use of adequate force, under the direction of those officers, at Her Majesty's discretion, such an enactment would have had the effect rather of limiting than of enlarging the powers now possessed for that purpose by the British Crown. This section authorizes the President, 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, as shall be judged necessary, in any one or more of the several cases there enumerated, viz: (a.) In every case in which a vessel shall be fitted out and armed, or attempted "to be fitted out and armed," (i. e., against the prohibitions of the third section.) (b.) "Or in which the force of any vessel of war, cruiser, or armed vessel, shall be increased or augmented, (i. e., against the prohibitions of the fifth section,) "by adding to the number of the guns of any such vessel which, at the time of her arrival in the waters of the United States, was in the service of a foreign Prince, &c., or by changing those on board of her for guns of a larger caliber, or by the addition thereto of any equipment solely applicable to war."" (c.) "Or in which any military expedition or enterprise shall be begun to be set on foot contrary to the provisions and prohibitions of this Act;"! (i. e., against the prohibitions of the sixth section, which makes it penal for any person "within the territory or jurisdiction of the United States" to "begin or set on foot or provide the means for any military expedition or enterprise to be carried on from thence against the territory or dominions of any foreign State," &c.) (d.) "And in every case of the capture of a ship or vessel within the jurisdiction or protection of the United States, as before defined;" (i. C., by the seventh section, which enables District Courts of the United States to "take cognizance of complaints, by whomsoever instituted, in cases of capture made within the waters of the United States, or within a marine league of the coasts thereof.") any Court (e.) "And in every case in which any process issuing out of of the United States shall be disobeyed or resisted by any person or The words "contrary to,” &c., apply, in the construction of the section, to cases (a,) (b,) and (c,) the particular provisions and prohibitions applicable to each case being those above stated. persons having the custody of any vessel of war, cruiser, or other armed vessel of any foreign Prince," &c. It will be seen that none of these cases except the first are material to the present inquiry, and that to constitute the first case the vessel must have been armed, or attempted to be armed, within the jurisdiction of the United States. The purposes for which, in any of these cases, the President is authorized by the section to employ the land or naval forces or the militia of the United States are the following: (a.) "For the purposes of 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;" (a purpose applicable only to such ships or vessels as are comprehended within cases (a,) (b,) (d,) and (e).) (b.) "And to the restoring the prize or prizes in cases in which restoration shall have been adjudged;" (a purpose applicable only to cases (d) and (e).) (c.) "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," &c.; (a purpose applicable only to case (c).) It is thus seen that all these powers of prevention given by section 8 to the President are limited, and not arbitrary, and that they would none of them have been applicable to prevent the departure from the United States of an unarmed vessel, not intended to be armed within American jurisdiction, built and equipped within the United States, and dispatched from thence for the use and service of a belligerent. Nor is there believed to be any trace in the annals of the law or history of the United States of their ever having been employed for such a purpose. But, further, this eighth clause of the Act of Congress of 1818 is a reenactment of the seventh clause of the Act of 1794, the purpose and effect of which was examined and authoritatively explained by the Supreme Court of the United States in the year 1818, in the case of "Gelston vs. Hoyt," (reported in the fourth volume of Judge Curtis's Reports, pages 211-231.) An action was brought against certain officers of the Customs of the United States for the wrongful seizure of a vessel, and they attempted (among other things) to justify themselves by pleading that in taking possession of and detaining the ship they had acted under the instructions of the President, given by virtue of the seventh section of the act of 1794. That defense was disallowed, on the grounds that the plea did not allege any forfeiture under the third section, nor justify the taking or detaining the ship for any supposed forfeiture, and did not show that the defendants belonged to the naval or military forces of the United States, or were employed in such capacity to take and detain the ship, in order to the execution of the prohibitions and penalties of the act. Mr. Justice Story, in giving the judgment of the Court, observed: 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 power should be allowed as a shield to the seizing-officer, in cases where that seizure might be 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 shows 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 law. In terms, the section is confined to the employment of military and naval 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 forces 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. In how many instances it has been found necessary, or thought proper, to call into exercise this power of the President of the United States, it would not be material for the present purpose to inquire. It seems enough to observe, that in order to call this power into exercise at all in any case of a vessel equipped or adapted for war within the United States, there must be a state of facts established or deemed capable of being proved in due course of law, constituting an infringement of the prohibitory and penal clauses of the Act of 1818, and producing a forfeiture of the vessel by reason of that infringement; and that, in any corresponding case under the British Foreign-Enlistment Act of 1819, the Queen of Great Britain possessed similar and not less effective powers, to fortify the ordinary administration of the law, in case of need, by the use of extraordinary force, as was exemplified by the employment of a force under the command of Captain Inglefield, at Birkenhead, in 1863, to prevent the forcible removal of the iron-clad rams from the Mersey. 3. The tenth section of the Act of Congress of 1818 requires security to be given by "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 thereof," against the employment of such ship or vessel "by such owners, to cruise or commit hostilities against any foreign Prince," &c. This clause is inapplicable to any ship not actually armed within the jurisdiction of the United States; and, even as to any vessel so armed, no security is required, unless it is owned by citizens of the United States; nor, even as to a ship so armed and so owned, is any security required against her employment to cruise or commit hostilities by any foreign Power, to whom it may be transferred after leaving the waters of the United States. 4. The eleventh section of the same Act authorizes and requires the collectors of United States Customs "to detain any vessel manifestly built for warlike purposes, and about to depart from 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, &c., until 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." The power thus given to detain ships "manifestly built for warlike purposes," when circumstances "render it probable that they are" intended to be employed "to cruise or commit hostilities upon the subjects, &c., of a foreign State," &c., is confined to the single case, in which such ships have a cargo, principally consisting of arms and munitions of war; and even in that case it ceases, upon security being given, in the same manner as under the tenth section, i. e., security against the employment of the ship by her then existing owners to cruise or commit hostilities against any foreign State, leaving her perfectly free to be so employed by any foreign owner to whom she may afterwards be transferred. Seward on this sub It is honorable to the candor of Mr. Bemis, an American writer, not partial certainly to Great Britain, (some of whose contro- 24 Testimonies of versial writings have been brought before the Arbitrators Mr. Bemis and Mr. as part of the evidence of the United States, in vol. iv of ject. their Appendix, pp. 12-32 and 37-46,) that he pointed out, in a work published in 1866, from which extracts will be found in Annex (B) to the British Counter Case, (pp. 149, 150,) the inferiority (not superiority) for preventive as well as for other purposes of the Act of Congress of 1818 (the only law then and now in force in the United States for the maintenance of their neutrality) as compared with the British ForeignEnlistment Act of 1819. Nor was there any reason to complain of the fairness of Mr. Seward, when (disregarding, as in his view practically unimportant, all those points of detail in respect of which these two Acts differed from each other) he described the laws made for this purpose in the United States on the 9th April, 1863, as "in all respects the same as those of Great Britain," and on the 11th of July, 1863, as exactly similar." (See Annex (A) to the British Argument or Summary, page 40.) But it is certainly astonishing, after these acknowledgments, (and in view of the facts above stated,) now to find these differences between the British and American Statutes insisted upon, in the Argument of the United States, as amounting to nothing short of the whole difference between a merely penal Statute and a law intended, and effective, for the purpose of prevention; and as constituting, on that account, a sufficient ground for inferring, a priori, a general want of due diligence on the part of Great Britain, with respect to all the matters covered by the present controversy. 66 of 25. Argument from the British For of 1870. Some reference must here be made to an argument, derived by the Counsel of the United States from the fact that a considerble change and amendment of the British law has since been the United States made, and that new preventive powers (of a kind not eign-Enlistment Act found, either in the Act of Congress of 1818 or in the British Act of 1819) have been conferred upon the Executive Government of Great Britain, by a recent Statute passed by the British Legislature in 1870. The Legislature of the United States has not yet thought it necessary or expedient to introduce any similar or corresponding provisions or powers into the law of that country; it cannot, therefore, be supposed that the Government of the United States deems such provisions or powers to be indispensable to enable a constitutional Government, the Executive of which is bound to act according to law, to fulfill, with due diligence, its international obligations. No one can seriously contend that because, after experience gained of the working of a particu lar law or administrative machinery of this nature, certain points may be found, on a deliberate examination, in which it appears capable of being improved, this is a proof that it was not, before these improvements, reasonably adequate for the fulfillment of any international obligations to which it may have been meant to be subservient. In all improvements of this kind, it is the object of wise legislation not to limit itself by, but in many respects to go beyond, the line of antecedent obligation; the domestic policy and security of the State which makes the law, and the reasonable wishes, as well as the strict rights of foreign Powers, are proper motives and elements in such legislation. No nation would ever voluntarily make such improvements in its laws, if it were supposed thereby to admit that it had previously failed to make such due provision for the performance of its public duties as other Powers might be entitled to require. 26. Illustrations of diligence, from the States. With respect to the light which is thrown upon these questions by American history, it is, in the first place, to be observed the doctrine of due that the violations of neutrality which the Government of history of the United President Washington took measures to prevent, did not include the mere building or sale of vessels adapted for war, for or to a belligerent, within the territory of the United States, or the sending abroad of such vessels. They consisted (in the words of Jeffer son) in "the practice of commissioning, equipping, or manning vessels in ports of the United States to cruise on any of the belligerent parties."1 Next it will be seen from that history that the Government of the United States, having made (as it considered) just and reasonable provision by laws for the fulfillment of its international obligations, always, both before and after 1817-18, referred to those laws, and to the evidence and procedure required by them, as the proper measure of the diligence which it ought to use when foreign Governments complained that ships had been or were being fitted out or dispatched from ports of the United States for the war service of their enemies or revolted subjects. Of the truth of this statement, examples will be found in the letters of Mr. Mallory to Don Antonio Villalobos, (16 December, 1816,) Mr. Rush to Don Luis de Onis, (March 28, 1817,) Mr. Fisk to Mr. Stoughton, (September 17, 1817,) Mr. Adams to Don Luis de Onis, (August 24, 1818,) Mr. Adams to the Chevalier de Serra, (March 14, 1818; October 23, 1818; September 30, 1820; and April 30, 1822;) all of which are in the third volume of the Appendix to the British Case, (pages 100, 106, 120, 129, 150, 157, 158, 160;) also in the letters of District Attorney Glenn to the Spanish Consul Chacon, (September 4, 1816,) and to Secretary Monroe, (February 25, 1817,) and of Secretary Rush to Mr. Mallory and Mr. McCulloch, (March 28, 1817,) which are among the documents, accompanying the Counter-Case of the United States (Part II, pages 40, 53–56, 61, and 62;) and in those of Attorney-General Hoar to District Attorney Smith, (March 18, 1869,) and to United States Marshal Barlow, (May 10, 1869,) among the documents accompanying the Counter Case of the United States, (Part III, pages 743 and 745-747;), and in the Circular of Attorney-General Hoar to the District Attorneys, (March 23, 1869,) and in the letter of District Attorney Pierrepont to Attorney-General Hoar, (May 17, 1869;) which are in the "Cuban Correspondence, 1866-1871," accompanying the Counter Case of the United States, (pages 29 and 59.) VII.-Objections of the United States to the Administrative System of Great Britain, and to the evidence required for the enforcement of the Law. 27. Arguments of the United States from suggested de fects in the adminis British law, and from by the British Gov trative machinery of the evidence required It appears, however, to be suggested that it was necessary, for the exercise of due diligence on the part of Her Majesty's Gorernment, that they should have organized some system of espionage, or other extraordinary means of detecting and proving the illegal equipment of vessels, during the late civil War; that it was inconsistent with due diligence to treat evidence of illegal acts or designs, producible in a British Court of Justice, as generally necessary to constitute a "reasonable ground for believing," that an illegal equipment, which ought to be prevented, had taken place or was being attempted; and that in all such cases the officers of the British Government ought to have obtained for them ernment. 1 British App., vol. v, p. 242. |