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On the 10th March, 1838, a temporary Act of Congress was passed to provide for more efficacious action in repressing these outrages than was provided by the Act of 1818.
Nevertheless, on the 21st November, 1838, President Van Buren found it necessary to issue another Proclamation, in which he said that, in disregard of the solemn warning heretofore given to them by the Proclamations issued by the Executive of the General Government, and by some of the Governors of the States, citizens of the United States had combined to disturb the peace of a neighboring and friendly nation; and a "hostile invasion" had "been made by the citizens of the United States in conjunction with Canadians and others," who "are now in arms against the authorities of Canada, in perfect disregard of their own obligations as American citizens, and of the obligations of the Government of their country to foreign nations."
In August, 1849, President Taylor issued a Proclamation, stating that there was "reason to believe that an armed expedition" was "about to be fitted out in the United States with an intention to invade Cuba ;" and letters were written on the subject to the District Attorneys in Louisiana and at Philadelphia, Baltimore, and Boston. (Appendix to American Counter Case, pages 646–648.)
On the 7th of May, 1850, Lopez, nevertheless, left Orleans with five hundred men; landed at Cardenas, and, after occupying the town, fled on the approach of the Spanish troops, and returned to the United States.
It appears, from the Appendix to the American Counter Case, that orders were given for his arrest on the 25th of May, 1850, but the result is not mentioned. (Pages 666, 667.)
On the 27th May, 1850, he was arrested, but discharged; and although the Grand Jury brought in a true bill against him on the 21st July, the prosecution was abandoned.
On the 3d August, 1850, he started on a second expedition with four hundred men, and was executed in Cuba on the 11th September. (British Counter Case, pages 36, 37. See also Appendix to American Counter Case, pages 676-686.)
In October, 1853, an expedition against Mexico issued under Walker from San Francisco, and seized the town of La Paz. In May, 1855, a second expedition issued from the same city, under the same adventurer, against Central America. This expedition landed at Realejo, and Walker continued in Central America until May, 1857, when he was conveyed from Rivas in the United States ship of war Saint Mary's. He then made preparations in the United States for a third expedition; and these renewed preparations occasioned the circular of September 18, 1857, urging the District Attorneys and Marshals to use "due diligence" to enforce the Act of 1818. (British Counter Case, page 38.)
In spite of this, Walker again eluded the law on the 11th September, 1857, and sailed from Mobile with three hundred and fifty men. After occupying Fort Castillo in Central America, he was intercepted by Commodore Paulding and brought to the United States. The American Argument mentions this officer as one of those who have been employed "to maintain the domestic order and foreign peace of the Government," (page 70;) presumably on this occasion; but it will be seen, from the Appendix to the American Counter Case, that his conduct was severely censured by the President at the time, (page 612.)
In December, 1858, another expedition started from Mobile in the Susan, but was frustrated by the vessel being wrecked.
In November, 1859, a further expedition was attempted in the Fashion.
In June, 1860, Walker made his last expedition from the United States, and was shot at Truxillo. (British Counter Case, pages 37-40. See also Appendix to American Counter Case, pages 515-518, 612-627, 632-643, 707-709.)
It may be interesting to mention that a correspondence, respecting claims between the Republic of Nicaragua and the United States, has recently been published in the official Gazette of that Republic, in which the Government of Nicaragua desired that, in a proposed adjustment of claims by a Mixed Commission, the claims of Nicaragua for injuries and losses sustained by these "filibustering" expeditions should be taken into consideration. The Government, however, of the United States declined all responsibility, on the ground that they had fulfilled all that could be required of them, either by the laws of the United States or by international law, and declared these claims to be inadmissible.
The British Counter Case gives an account of the open preparations for an attack on Canada continued during the years 1865–266. The first raid took place from Buffalo and Saint Alban's in June, 1866.
The second raid was from Malone and Saint Alban's, in May, 1870. The third raid was on the Pembina frontier, in October, 1871.
Expeditions proceeded from the United States, in aid of the Cuban insurgents, in the Grapeshot and Peritt, in May, 1869; and from New Orleans in the Cespedes, or Lilian, in October, 1869. (The latter was stopped at Nassau.)
Another expedition, in the Hornet or Cuba, (the vessel having been previously libeled in the Admiralty Court and bonded in 1870,) landed in Cuba in January, 1871. (British Counter Case, page 45.)
The foregoing narrative is necessarily brief and imperfect; but it shows, besides the systematic privateering practiced, by subjects of the United States, against Spain and Portugal in 1816-28, (when upward of fifty-four privateers are mentioned as having been armed and dispatched from American ports,) two expeditions against Cuba under Lopez; six expeditions under Walker; three Fenian raids; and three expedi tions in aid of the Cuban insurgents. The latter, according to the reports in the American press, would appear to be still continued.
IX.--General Conclusion: the failure to prevent does not always prove a want of "due diligence."
The general result, to which we have been led as well by reason and principle as by experience, is this: that occasional (it may
37. The general re
proves, that even be frequent) failures to prevent acts contrary to law,
vent may happen, and injurious to a friendly State, may nevertheless be
without want of due
CIUSHA for which
diligence, from entirely consistent with a serious intention and bona fide endeavor, on the part of the Government whose subjects be held responsible. commit such acts within its jurisdiction, to prevent them, and with the use of due diligence for that purpose; that, without timely information and evidence of a legal kind, sufficient and proper to con stitute a "reasonable ground of belief," no obligation to use any such diligence arises, and that the Government of a civilized nation cannot be held wanting in due diligence if, having made reasonable provision by law for the prevention of illegal acts of this nature on the part of its citizens, it proceeds to deal with all such cases in a legal course, according to its accustomed methods of civil administration. This is, in fact, the "diligence," and the only diligence which is, in such cases, generally "due" from an independent State to a foreign Government; and from this it follows that accidental and unintentional difficulties or delays,
or even slips and errors, such as are liable to result, in the conduct of public affairs, from the nature of the subordinate instruments by which, and the circumstances under which, civil Government is necessarily carried on, and against which no human foresight can always absolutely provide, ought not in themselves to be regarded as instances or proofs of a want of "due diligence," where good faith and reasonable activity on the part of the Government itself has not been wanting. Least of all can the Government of a free country be held wanting in due diligence, on the ground of errors of judgment, into which a Judge of a Court of Law, in the exercise of a legal jurisdiction properly invoked, may have fallen (as when the Florida was acquitted at Nassau) in the decision of a particular case.
"The United States agree with Her Majesty's Government when it says, as it does in its Counter Case, that it should not be, and they hope it is not, in the power of Her Majesty's Government to instruct a judge, whether in the United Kingdom or in a colony or dependence of the Crown, how to decide a particular case or question. No judge in Her Majesty's dominions should submit to be so instructed; no community. however small, should tolerate it; and no minister, however powerful, should ever think of attempting it." (Argument of the United States, p. 121.)
This being so, if the Government had information and evidence which made it their duty to detain such a ship as the Florida, and to endeavor to prosecute her to condemnation, and if they actually did so, and offered for that purpose proper evidence, they used all the diligence which was due from them. Over the judgment, whether right or erroneous, they had no control; and for it, if erroneous, they have no responsibility.1
But the counsel of the United States say that—
"The fforts of the British Case and Counter Case to ascribe to, or apportion among, the various departments of national authority, legislative, judicial, and executive, principal or subordinate, the true measure of obligation and responsibility, and of fault or failure, in the premises, as among themselves, seem wholly valueless. If the sum of the obligations of Great Britain to the United States was not performed, the nation was in fault, wherever, in the functions of the State or their exercise, the failure in duty arose." (Argument, p. 147.)
The question, whether "the sum of the obligations of Great Britain to the United States" was or was not performed, (which is the point at issue,) seems to be here assumed. A petitio principii cannot, of course, be an answer to arguments intended to show that the sum of those national obligations was, in fact, performed. The United States affirm that in the various cases in which they themselves failed to prevent, within their own territory, equipments and expeditions hostile to other States, the sum of their own national obligations was performed; and yet they seem to deny to the Government of Great Britain the benefit of the same equitable principles of judgment.
X.-Of the burden of proof, according to the Treaty.
They go further: they seek to invert the whole burden of proof in the present controversy:
38. Attempt of the United States to change generally the onus probandi in
The foundation of the obligation of Great Britain to use "due diligence to prevent" certain acts and occurrences within its jurisdiction, as men- the present controtioned in the three Rules, is, that those acts and occurrences within its jurisdic
The judgment of acquittal, when once pronounced by the Court of Admiralty in favor of the vessel, was conclusive, as a judgment in rem, preventing the possibility of her being afterward again seized as forfeited for a breach of the British Foreign-Enlistment Act, except on the ground of some new violation of the law, subsequent to that judgThis point of law was expressly determined by the Supreme Court of the United States in the case of Gelston rs. Hoyt, already mentioned. The effect of judgments in rem by courts of admiralty is everywhere recognized by international law.
tion are offenses against international law, and, being injurious to the United States, fur nished just occasion for resentment on their part, and for reparation and indemnity by Great Britain, unless these offensive acts and occurrences shall be affirmatively shown to have proceeded from conduct and causes for which the Government of Great Britaiu is not responsible. But by the law of nations the State is responsible for all offenses committed against international law arising within its jurisdiction, by which a foreign State suffers injury, unless the former can clear itself of responsibility by demonstrating its freedom from fault in the premises. (Page 154.)
And again, at page 154:
The nature of the presumptive relation which the State bears to the offenses and injuries imputed and proved necessarily throws upon it the burden of the exculpatory proof demanded: that is to say, the proof of due diligence on its part to prevent the offenses which, in fact and in spite of its efforts, have been committed within its jurisdiction, and have wrought the injuries complained of.
39. In so
In the face of the sixth article of the Treaty, by which Her Majesty expressly declines to assent to the three Rules as a statethey transgress the ment of principles of international law which were in force rules of the Treaty. when these claims arose, but agrees that the Arbitrators may apply these rules to the decision of the claims, upon the footing of an undertaking by Great Britain to act upon their principles-it is here assumed that all such acts or occurrences within British jurisdiction as are mentioned in the Treaty are to be dealt with by the Arbitrators as offenses against international law; notwithstanding the proofs, given in the British Counter Case and the annex (A) thereto, and referred to at the commencement of this paper, that international law never did require a neutral Government to prohibit and prevent the manufacture, sale, and dispatch of unarmed ships of war, by its citizens within its territory, for a belligerent.
In the face of the three Rules themselves, which affirm the obligation of due diligence to prevent, only when there are "reasonable grounds to believe" that some prohibited act has been or is about to be done, the United States decline the burden of establishing, in each or any case, the existence of this preliminary and indispensable condition, reasonable ground for belief; and they ask that this should be taken for granted in every case until it is disproved.
40. The law of na
To justify this disregard of the primary condition of the rules, they appeal to a supposed law of nations, which is said universally tiens does not justify to throw the onus of demonstrating its own freedom from "fault in the premises" upon every State whose citizens commit any offense against international law, injurious to a foreign State within its jurisdiction; which principle, as was shown in the early part of this paper, has never been extended to cases (like the present) when the acts in question have been done by individuals or by small numbers of citizens. The United States do not admit themselves to be responsible for all the equipments and hostile expeditions of their citi zens against foreign States which they have failed to prevent, under the propositions that "it is presumed that a Sovereign knows what his subjects openly and frequently commit;" that, "as to his power of hindering the evil, this likewise is also presumed unless the want of it be clearly proved." But, if those propositions would not be applicable against the United States, why are they to be applied against Great Britain, to cases much further removed in their nature and circumstances from the terms of the propositions?
It happens that there is a decision of weight, of which the United States long ago had the benefit in a former controversy with Great Britain, under circumstances not very dissimilar in principle, which is directly opposed to this attempt ou their part now to alter the burden of proof. The United
41. The decision in
the case of the Eliza
beth by the Commis sioners under Treaty of 1794 is against it.
States come before the Arbitrators under an agreement of the Queen of Great Britain, by which Her Majesty authorizes the Arbitrators to assume that she had undertaken, when the present claims arose, to act upon the principles set forth in the three Rules, though not admitting them to have been then in force as rules of international law. In 1798, Great Britain came before the Commissioners of Claims under the Treaty of 1794, with an actual undertaking by the United States to use all the means in their power to restore all British prizes brought into ports of the United States, after a certain date, by any vessel illegally armed within their jurisdiction, and with an acknowledgment of their consequent obligation to make compensation for such, if any, of those prizes as they might not have used all the means in their power to restore. The undertaking of Great Britain, now to be assumed by the Arbitrators, is conditional upon the existence of "reasonable grounds for belief" of certain facts by the British Government in the case of each of the vessels for which Great Britain is sought to be made responsible. The undertaking of the United States, in 1794, was also dependent upon certain conditions of fact. What was the decision of the Commissioners in the case of the Elizabeth? (British Counter Case, pp. 29, 30, and British Appendix, vol. v, p. 322 :)
"From this examination of the letter, which is given to us for a rule, (Mr. Jefferson to Mr. Hammond, 5th September, 1793,) it results that it was the opinion of the President, therein expressed, that it was incumbent on the United States to make restitution of, or compensation for, all such vessels and property belonging to British subjects as should have been, first, captured between the dates of June 5 and August 7 within the line of jurisdictional protection of the United States, or even on the high seas; if, secondly, such captured vessel and property were brought into the ports of the United States; and, thirdly, provided that, in cases of capture on the high seas, this responsibility should be limited to captures made by vessels armed within their ports; and, fourthly, that the obligation of compensation should extend only to captures made before the 7th August, in which the United States had confessedly foreborne to use all the means in their power to procure restitution; and that, with respect to cases of captures made under the first, second, and third circumstances above enumerated, but brought in after the 7th August, the President had determined that all the means in the power of the United States should be used for their restitution, and that compensation would be equally incumbent on the United States in such of these cases (if any such should at any future time occur) where, the United States having decreed restitution, and the captors having opposed or refused to comply with or submit to such decree, the United States should forbear to carry the same into effect by force.
"Such was the promise. In what manner was that promise to be carried into effect? It was not absolute to restore by the hand of power, in all cases where complaint should be made.
“No, the promise was conditional. We will restore in all those cases of complaint where it shall be established by sufficient testimony that the facts are true which form the basis of our promise—that is, that the property claimed belongs to British subjects; that it was taken either within the line of jurisdictional protection, or, if on the high seas, then by some vessel illegally armed in our ports; and that the property so taken has been brought within our ports. By whom were these facts to be proved? According to every principle of reason, justice, or equity, it belongs to him who claims the benefit of a promise to prove that he is the person in whose favor, or under the circumstances in which the promise was intended to operate."
XI.-Special questions remaining to be considered.
These are the arguments, upon the subject of the diligence generally due by Great Britain to the United States, with reference 42. Special ques to the subjects to which the three Rules of the Treaty of tions remaining to be Washington relate, and the principles according to which that diligence is to be proved or disproved, which it has been desired by Her Britannic Majesty's Counsel to submit to the Arbitrators. There remain some other special questions, which require separate examina