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Rule that prevents our considering its proper application to the case of a vessel which, for the purpose of the present argument, it must be conceded ought to be arrested under it, and detained in port if the "commission" does not interpose an obstacle.
of a commission.
Extent of the right of exterritoriality given to ships of war.
We have laid down at pages from 152 to 154 in our Argument, what we consider the rules of law in regard to the effect of the The rules of law "commission" of a sovereign nation, or of a belligerent not respecting the effect recognized as a sovereign, in the circumstances involved in this inquiry. They are very simple. I find nothing in the argument of my learned friend, careful and intelligent as it is, that disturbs these rules as rules of law. The public ship of a nation, received into the waters or ports of another nation, is, by the practice of nations, as a concession to the sovereign's dignity, exempt from the jurisdiction of the courts and all judicial process of the nation whose waters it visits. This is a concession, mutual, reciprocal between nations having this kind of intercourse, and resting upon the best and surest principles of international comity. But there is no concession of extra-territoriality to the effect or extent that the sovereign visited is predominated over by the sovereign receiving hospitality to its public vessels. The principle simply is, that the treatment of the vessel rests upon considerations between the nations as sovereign, and in their political capacities, as matter to be dealt with directly between them, under reciprocal responsibility for offense on either side, and under the duty of preserving relations of peace and good-will if you please, but nevertheless to be controlled by reasons of state.
Any construction of the rule that would allow the visiting vessel to impose its own sovereignty upon the sovereign visited, would be to push the rule to an extreme that would defeat its purpose. It is the equality of sovereigns that requires that the process and the jurisdiction of courts should not be extended to public vessels.
But all other qualifications as to how the sovereign visited shall deal with public vessels rest in the discretion of the sovereign. If offense is committed by such vessels, or any duty arises in respect to them, he, at his discretion and under international responsibility, makes it the subject of remonstrance, makes it the subject of resentment, makes it the subject of reprisal, or makes it the subject of an immediate exercise of force if the circumstances seem to exact it.
What, then, is the tenor of the authorities, in respect to a public vessel not of a sovereign, but of a belligerent, who has not been recognized as a sovereign? The courts of the country, when the question arises as a judicial one, turn to the political authority, and ask how that has determined the question of the public character of such vessels; and if that question (which is a political one) has been determined in recognition of the belligerency, then the vessel of the belligerent is treated as exempt from judicial process and from the judisdiction of the courts. But that vessel remains subject to the control, subject to the dominion of the sovereign whose ports it has visited, and it remains there under the character of a limited recognition, and not in the public character of a representative of recognized sovereignty.
We understand the motives by which belligerency is recognized while sovereignty is refused. They are the motives of humanity; they are the motives of fair play; they are the motives of neutral recognition of the actual features of the strife of violence that is in progress. But it is in vain to recognize belligerency and deny sovereignty, if you are going to attract one by one all the traits of sovereignty, in the relations with
a power merely recognized as belligerent and to whom sovereignty has been denied.
Recognition of bel
nition of sovereignty.
What is the difference of predicament? Why, the neutral nation, when it has occasion to take offense or exercise its rights ligerency not a recog. With reference to a belligerent vessel not representing a sovereign, finds no sovereign behind that vessel to which it can appeal, to which it can remonstrate, by which through diplomacy, by which through reprisals, by which in resentments, it can make itself felt, its dominion respected, and its authority obeyed. It then deals with these belligerent vessels not unjustly, not capriciously, for injustice and caprice are wrong toward whomsoever they are exercised, but, nevertheless, upon the responsibility that its dealing must reach the conduct, and that the vessel and its conduct are the only existing power and force to which it can apply itself.
I apprehend that there is no authority from any book that disturbs in the least this proposition, or carries the respect to belligerent vessels beyond the exemption from jurisdiction of courts and judicial process. The rule of law being of this nature, the question, then, of how a neutral shall deal with one of these cruisers that owes its existence to a violation of its neutral rights, and then presents itself for hospitality in a port of the neutral, is a question for the neutral to determine according to its duty to itself, in respect to its violated neutrality and its duty to the sovereign belligerent, who will lay to its charge the consequences and the responsibility for this offending belligerent.
Now, I find in the propositions of the eminent Counsel a clear recog nition of these principles of power on the part of the sovereign, and of right on the part of the sovereign, requiring only that the power should be exercised suitably and under circumstances which will prevent it from working oppression or unnecessary injury. That makes it a question, therefore, as to the dealing of the sovereign for which the law of nations applies no absolute rule. It then becomes a question for the Tribunal whether (under these circumstances of cruisers that owe their origin or their power to commit these injuries to their violation of neutrality) Great Britain is responsible to the injured sovereign, the United States, for this breach of neutrality, for this unlawful birth, for this unlawful support of these offending cruisers. As to what the duty of a neutral nation is in these circumstances and in these relations, when the offending cruiser is again placed within its power, I find really no objection made to the peremptory course we insist upon, except that seizing such a vessel, without previous notice, would be impolite, would be a violation of comity, would be a violation of the decorous practice of nations, and would be so far a wrong.
Well, let us not discuss these questions in the abstract merely; let us Application of the apply the inquiry to the actual conduct of Great Britain in the actual circumstances of the career of these cruisers. Great Britain claimed exemption from liability to the United States by saying that, when these cruisers had, confessedly, in fact escaped in violation of neutrality, and confessedly were on the seas propagating those enormous injuries to the property and commerce of a friendly nation, it had promptly given notice that no one of them should ever after enter its ports, and that, if it did enter its ports, it would be seized and detained, then this charge that the conduct of Great Britain toward these cruisers in their subsequent visits to its ports was such as to make it responsible for their original escape or for their subsequent career, would be met by this palliation or this defense. But no such case arises upon the proofs. You have then, on the one hand, a clear duty
toward the offended belligerent, and on the other only the supposed obligation of courtesy or comity toward the offending belligerent. This courtesy, this comity, it is conceded, can be terminated at any time at the will of the neutral sovereign. But this comity or this courtesy has not been withdrawn by any notice, or by any act of Great Britain during the entire career of these vessels.
We say then, in the first place, that there is no actual situation which calls for a consideration of this palliative defense, because the circumstances do not raise it for consideration. On the contrary, the facts as recorded show the most absolute indifference, on the part of Great Britain, to the protracted continuance of the ravages of the Alabama and of the Florida, whose escape is admitted to be a scandal and a reproach to Great Britain, until the very end of the war.
And, yet, a subtraction of comity, a withdrawal of courtesy, was all that was necessary to have determined their careers.
But, further, let us look a little carefully at this idea that a cruiser, illegally at sea by violation of the neutrality of the nation which has given it birth, is in a condition, on its first visit to the ports of the offended neutral, after the commission of the offense to claim the allowance of courtesy or comity. Can it claim courtesy or comity, by reason of anything that has proceeded from the neutral nation to encourage that expectation? On the contrary, so far from its being a cruiser that has a right to be upon the sea, and to be a claimant of hospitality, it is a cruiser, on the principles of international law, (by reason of its guilty origin, and of the necessary consequences of this guilt to be visited upon the offended neutral,) for whose hostile ravages the British Government is responsible. What courtesy, then, does that Government owe to a belligerent cruiser that thus practiced fraud and violence up its neutrality and exposed it to this odious responsibility? Why does the offending cruiser need notice that it will receive the treatment appropriate to its misconduct and to the interests and duty of the offended neutral? It is certainly aware of the defects of its origin, of the injury done to the neutral, and of the responsibility entailed upon the neutral for the injury to the other belligerent. We apprehend that this objection of courtesy to the guilty cruiser that is set up as the only obstacle to the exercise of an admitted power, that this objection which maintains that a power just in itself, if executed without notice, thereby becomes an imposition and a fraud upon the offender because no denial of hospitality has been previously announced, is an objection which leaves the ravages of such a cruiser entirely at the responsibility of the neutral which has failed to intercept it.
It is said in the special argument of the learned Counsel, that no authority can be found for this exercise of direct sovereignty on the part of an offended neutral toward a cruiser of either a recognized or an unrecognized sovereignty. But this after all comes only to this, that such an exercise of direct control over a cruiser, on the part of an offended neutral, without notice, is not according to the common course of hospitality for public vessels whether of a recognized sovereign or of a recognized belligerent. As to the right to exercise direct authority on the part of the displeased neutral to secure itself against insult or intrusion on the part of a cruiser that has once offended its neutrality, there is no doubt.
The argument that this direct control may be exercised by the displeased neutral without the intervention of notice, when the gravity and nature of the offense against neutrality on the part of the belligerent justify this measure of resentment and resistance, needs no in
stance and no authority for its support. In its nature, it is a question wholly dependent upon circumstances.
Our proposition is, that all of these cruisers drew their origin out of the violated neutrality of Great Britain, exposing that nation to accountability to the United States for their hostilities. Now, to say that a nation thus situated is required by any principles of comity to extend a notice before exercising control over the offenders brought within its power, seems to us to make justice and right, in the gravest responsibilities, yield to mere ceremonial politeness.
Acts done in vio
To meet, however, this claim on our part, it is insisted, in this special argument, that the equipment and outfit of a cruiser in a neutral port, if it goes out unarmed (though capable of becoming an instrument of offensive or defensive war by the mere addition of an armament) may be an illegal act as an offense against municipal law, but is not a violation of neutrality in the sense of being a hostile act, and does not place the offending cruiser in the position of having violated neutrality. That is but a recurrence to the subtle doctrine that the obligations of Great Britain in respect to the first Rule of the Treaty are not, by the terms of the Treaty, made international obligations, for the observance of which she is responsible under the law of nations, and for the permissive violation of which she is liable, as having allowed, in the sense of the law of nations, a hostile act to be perpetrated on her territory. This distinction between a merely illegal act and a hostile act, which is a violation of neutrality, is made of course, and depends lation of neutrality Wholly, upon the distinction of the evasion of an unarmed ship of war being prohibited only by municipal law and not by the law of nations, while the evasion of an armed ship is prohibited by the law of nations. This is a renewal of the debate between the two nations as to what the rule of the law of nations in this respect was. But this debate was finally closed by the Treaty. And, confessedly, on every principle of reason, the moment you stamp an act as a violation of neutrality, you include it in the list of acts which by the law of nations are deemed hostile acts. There is no act that the law of nations prohibits within the neutral jurisdiction that is not in the nature of a hostile act, that is not in the nature of an act of war, that is not in the nature of an application by the offending belligerent of the neutral territory to the purposes of his war against the other belligerent. The law of nations prohibits it, the law of nations punishes it, the law of nations exacts indemnity for it, only because it is a hostile act.
are hostile acts.
Now, suppose it were debatable before the Tribunal whether the emission of a war-ship without the addition of her armament, was a violation of the law of nations, on the same reason, and only on that reason, it would be debatable whether it were a hostile act. If it were a hostile act, it was a violation of the law of nations; if it were not a violation of the law of nations, it was not so, only because it was not a hostile act. When, therefore, the Rules of the Treaty settle that debate in favor of the construction claimed by the United States in its antecedent history and conduct, and determine that such an act is a violation of the law of nations, they determine that it is a hostile act. There is no escape from the general proposition that the law of nations condemns nothing done in a neutral territory unless it is done in the nature of a hostile act. And when you debate the question whether any given act within neutral jurisdiction is or is not forbidden by the law of nations, you debate the question whether it is a hostile act or not. Now, it is said that this outfit without the addition of an armament is not a hostile act under the law of nations, antecedent to this Treaty.
That is immaterial within the premises of the controversy before this Tribunal.
It is a hostile act against Great Britain, which Great Britain—— Sir ALEXANDER COCKBURN. "Do I understand you, Mr. Evarts, to say that such an act is a hostile act against Great Britain ?"
Mr. EVARTS. Yes, a hostile violation of the neutrality of Great Britain, which, if not repelled with due diligence, makes Great Britain responsible for it as a hostile act within its territory against the United States.
This argument of the eminent Counsel concedes that if an armament is added to a vessel within the neutral territory it is a hostile act within that territory, it is a hostile expedition set forth from that territory. It is therefore a violation of the law of nations, and if due diligence is not used to prevent it, it is an act for which Great Britain is responsible. If due diligence to prevent it be or be not used, it is an offense against the neutral nation by the belligerent which has consummated the act.
The neutral whose violated is under no
to the violator.
A neutral nation, against the rights of which such an act has been committed, to wit, the illegally fitting out a war-ship without armament, (condemned by the law of nations as settled neutrality has been by this Treaty,) is under no obligation whatever of courtesy obligation of comity or comity to that cruiser. If, under such circumstances, Great Britain prefers courtesy and comity to the offending cruiser and its sponsors, rather than justice and duty to the United States, she does it upon motives which satisfy her to continue her responsibility for that cruiser rather than terminate it. Great Britain has no authority to exercise comity and courtesy to these cruisers at the expense of the offended belligerent, the United States, whatever her motives may be. Undoubtedly the authorities conducting the rebellion would not have looked with equal favor upon Great Britain if she had terminated the career of these cruisers by seizing them or excluding them from her ports. That is a question between Great Britain and the belligerent that has violated her neutrality. Having the powers, having the right, the question of courtesy in giving notice was to be determined at the cost of Great Britain and not at the expense of the United States. But it ceases to be a question of courtesy when the notice has not been given at all, and when the choice has thus been made that these cruisers shall be permitted to continue their career unchecked.
show that the con
struction in neutral territories of ship
Now on this question, whether the building of a vessel of this kind without the addition of armament is proscribed by the law of nations, and proscribed as a hostile act and as a violation of neutral territory, (outside of the Rules of the Treaty,) which is so much debated in this special argument, I ask attention to a few citations, most of which have been already referred to in the American Case.
Hautefeuille, as cited upon page 170, says:
intended to carry on
war against a belligerent is forbidden by
the law of nations,
Le fait de construire un bâtiment de guerre pour le comte d'un belligérant ou de l'armer dans les états neutres est une violation du territoire. * Il
peut egalement réclamer le désarmement du bâtiment illégalement armé sur son territoire et même le détenir, s'il entre dans quelque lieu soumis à sa souveraineté jusqu'à ce qu'il ait été désarmé.
Ortolan, as quoted on page 182 of the same Case, passes upon this situation, which we are now discussing, as follows:
Nous nous rattacherons pour résoudre en droit des gens les difficultés que presente cette nouvelle situation, à un principe universellement établi, qui se formule en ce peu de mots "inviolabilité du territoire neutre." Cet inviolabilité est un droit pour l'état neutre, dont le territoire ne doit pas être atteint par les faits de guerre, mais elle