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ing all the materials from her ports and planning thus to combine them outside.
Sir ALEXANDER COCKBURN. "If that had been shown."
Mr. EVARTS. The proofs do show it, and that the doctrine was that it was lawful and should not be interfered with.
I disclaim any desire or purpose of arguing upon the facts of particular vessels. I am merely laying down principles applicable to supposed facts. If the principles were conceded I would have no occasion to deal with questions of fact at all.
The learned Chief Justice has very satisfactorily, certainly to us, presently expressed certain legal opinions on this subject; but I must say that they were not entertained by the Government of Great Britain and did not control its action.
I think that the proofs before the Tribunal can be easily referred to to confirm the position I have taken as to the legal doctrine held in England in reference to this subject of the base of operations. In contradiction of that doctrine we now insist, as our Government all through the war insisted, this is not dealing in contraband of war; it is using neutral territory as a base of operations. Whether there was or should be no responsibility for it, because it was not known or could not be prevented, is an entirely different question. But I undertake to say, as matter of fact, that the doctrine of the English law during all those proceedings was that such projects and their execution as a contributory concurrence with the outfit of the principal cruisers for naval operations (such cases as those of the Laurel, the Alar, the Agrippina, the Bahama, and similar vessels) were lawful, and could not and should not be prevented.
Sir ALEXANDER COCKBURN. "I would be very much obliged if you will refer me to some authority for that."
Mr. EVARTS. I will. One of the arbitrators, (Mr. Adams,) from his knowledge of the course of the correspondence, knows that I do not deceive myself in that respect. It is this contributory furnishing of armament and munitions and men which rendered the principal cruisers efficient instruments of all the mischief, and without which their evasions from port were of little consequence, and without the expectation of which they never would have been planned.
I now refer to a paper that will show that I have been right in my proposition as to the construction of English law as held during the occurrence of these transactions.
In vol. iii of American Appendix, (p. 53,) in a report to the Board of Trade by the Commissioners of Customs, occurs this passage:
CUSTOM HOUSE, September 25, 1862.
Your lordships having, by Mr. Arbuthnot's letter of the 16th instant, transmitted to us, with reference to Mr. Hamilton's letter of the 2d ultimo, the inclosed communica tion from the Foreign Office, with copies of a further letter and its inclosures from the United States Minister at this Court, respecting the supply of cannon and munitions of war to the gun-boat No. 290, recently built at Liverpool, and now in the service of the so-called Confederate States of America; and your lordships having desired that we would take such steps as might seem to be required in view of the facts therein represented, and report the result to your lordships, we have now to report:
That, assuming the statement set forth in the affidavit of Reddin, (who sailed from Liverpool in the vessel,) which accompanied Mr. Adams's letter to Earl Russell, to be correct, the furnishing of arms, &c., to the gun-boat does not appear to have taken place in any part of the United Kingdom or of Her Majesty's dominions, but in or near Angra Bay, part of the Azores, part of the Portuguese dominions. No offense, therefore, cognizable by the laws of this country, appears to have been committed by the parties engaged in the transaction alluded to in the affidavit.
From Lord Russell's communication of this Report to the American
Minister, it will be seen that the accepted opinion of the Government was, that such operations could not be interfered with, and therefore would not be interfered with. That may be a correct view of the Foreign-Enlistment Act of Great Britain, and hence the importance of reducing the obligations of a neutral nation to prevent violations of international law to some settled meaning.
This was done by convention between the High Contracting Parties, and appears in the Rules of the Treaty. Under these Rules is to be maintained the inculpation which we bring against Great Britain, and which I have now discussed, because the subject is treated in the special argument to which I am replying. The instances of neutral default announced under the second Rule are made penal by the law of nations. They are proscribed by the second Rule. They are not protected as dealings in contraband of war. They are not protected under the right of asylum. They are uses of neutral ports and waters as bases of naval operations, and if not prohibited by the Foreign-Enlistment Act, and if the British Executive Government could not and would not prevent them, and that was the limit of their duty under their Foreign-Enlistment Act, still we come here for judgment, whether a nation is not responsible that deals thus in the contribution of military supplies, that suffers ship after ship to go on these errands, makes no effort to stop them, but, on the contrary, announces, as the result of the deliberation of the Law-Officers, to the subordinate officials, to the Minister of the United States, to all the world, that these things are not prohibited by the law of Great Britain, and cannot be prohibited by the Executive Government, and therefore cannot and will not be stopped. That this was the doctrine of the English Government will be seen from a letter dated the 2d of April, 1863, of Lord Russell, found, in part, in vol. ii, American Appendix, p. 404; and, in part, in vol. i, ibid., p. 590:
But the question really is, has there been any act done in England both contrary to the obligations of neutrality as recognized by Great Britain and the United States, and capable of being made the subject of a criminal prosecution? I can only repeat that, in the opinion of Her Majesty's Government, no such act is specified in the papers which you have submitted to me.
I, however, willingly assure you that, in view of the statements contained in the intercepted correspondence, Her Majesty's Government have renewed the instructions already given to the custom-house authorities of the several British ports where ships of war may be constructed, and by the Secretary of State for the Home Department to various authorities with whom he is in communication, to endeavor to discover and obtain legal evidence of any violation of the Foreign-Enlistment Act, with a view to the strict enforcement of that statute whenever it can really be shown to be infringed.
It seems clear, on the principle enunciated in these authorities, that, except on the ground of any proved violation of the Foreign-Enlistment Act, Her Majesty's Government cannot interfere with commercial dealings between British subjects and the sostyled Confederate States, whether the subject of those dealings be money or contraband goods, or even ships adapted for warlike purposes.
These were instances in which complaints were made of these transactions, and in which it was answered that the British Government charged itself with no duty of due diligence, with no duty of remonstrance, with no duty of prevention or denunciation, but simply with municipal prosecutions for crimes against the Foreign-Enlistment Act.
What I have said of the Shenandoah, distinguished her from the Florida, and the Alabama, and the Georgia, only in the fact that, from the beginning to the end of the Shenandoah's career, she had no port of any kind, and had no base of any kind, except the ports of the single nation of Great Britain. But as to the Florida and the Alabama, one
(the Alabama) was supplied by a tug, or steamer, that took out her armament to Angra Bay, the place of her first resort; the other (the Florida) was supplied by a vessel sent out to Nassau to meet her, carrying all her armament and munitions of war, and which she took out in tow, transshipping her freight of war-material outside the line of neutral waters.
That is called dealing in contraband, not proscribed by the law of nations, not proscribed by any municipal law, and not involving any duty of Great Britain to intercept, to discourage or denounce it. That is confounding substance with form. But let me use the language of an Attorney-General of England, employed in the Parliamentary discussions which attended the enactment of the Foreign-Enlistment Act of
From this debate in Parliament, it will be seen what the principal lawadviser of the Crown then thought of carrying on war by "commercial transactions :"
Such an enactment [he said] was required by every principle of justice; for when the State says, "We will have nothing to do with the war waged between two separate powers," and the subjects in opposition to it say, "We will, however, interfere in it,” surely the House would see the necessity of enacting some penal statutes to prevent them from doing so; unless, indeed, it was to be contended that the State, and the subjects who composed that State, might take distinct and opposite sides in the quarrel. He should now allude to the petitions which had that evening been presented to the House against the bill; and here he could not but observe, that they had either totally misunderstood or else totally misrepresented its intended object. They had stated that it was calculated to check the commercial transactions and to injure the commercial interests of this country. If by the words "commercial interests and commercial transactions" were meant "warlike adventures," he allowed that it would; but if it were intended to argue that it would diminish a fair and legal and pacific commerce, he must enter his protest against any such doctrines. Now, he maintained, that as war was actually carried on against Spain by what the petitioners called "commercial transACtions," it was the duty of the House to check and injure them as speedily as possible.-(Note B, American Argument, p. 231; Fr. tr. Appendice, p. 488.)
War against the United States, maritime war, was carried on under cover of what was called right of asylum and commercial transactions in contraband of war. We are now under the law of nations, by virtue of this second Rule, which says that the use of "ports and waters as the base of naval operations, or for the purpose of the renewal or aug. mentation of military supplies or arms or the recruitment of men," shall not be allowed, and if the facts of such dealing shall be found, and the proof of due diligence to prevent them shall not appear in the proofs, under that second Rule all four of these cruisers must be condemned by the Tribunal.
I do not pass, nor venture to pass, in the present argument, upon the question whether there has been in this matter a lack of due diligence. In the discussion of my learned friend every one of these instances is regarded as a case not within the second Rule, and as a simple dealing in contraband of war.
Sir ROUNDELL PALMER. "I must be permitted to say that I have not felt myself at liberty to go into a discussion of individual cases."
Mr. EVARTS. The vessels are treated in the argument of the learned Counsel.
Sir ROUNDELL PALMER. "There may be passages in reference to some of the principal topics which have been mentioned, but I have avoided entering upon any elaborate consideration of each particular vessel. There is no distinct enumeration of the vessels."
Mr. EVARTS. There is, so distinct as this it is expressly stated that under the law neither the Georgia, nor the Shenandoah, nor the subsidiary vessels that carried their armaments to the Georgia and Shenan
doah and to the Florida and Alabama, had, in so doing, committed a breach of neutrality.
I am arguing now under the second Rule. I have not felt that I was transcending the proper limits of this debate, because, in answer to the special argument of the eminent Counsel, I have argued in this way. My own view as to the extension of the argument of the learned Counsel in his discussion of what is called "due diligence," as a doctrine of the law of nations, would not have inclined me to expect so large a field of discussion as he covered. But, as I have admitted in my introductory remarks, the question of due diligence connects itself with the measure of duty and the manner in which it was performed, and I felt no difficulty in thinking that the line could not be very distinctly drawn.
I have undertaken to argue this question under a state of facts, which shows that a whole naval project is supplied, from the first outfit of the cruiser to the final end of the cruise, by means of this sort of connection with neutral ports and waters as a base of naval operations; and I have insisted that such naval operations are not excluded from the proscription of the second Rule, by what is claimed in the argument of the learned Counsel as the doctrine of contraband of war and the doctrine of asylum.
At the Conference of the Tribunal, held on the 6th day of August, Mr. Evarts continued as follows:
Statement of the this point.
I was upon the point of the doctrine of the British Government, and its action under that doctrine, as bearing upon the outfit of the contributory provisions of armament, munitions, and British argument on men, set forth in such vessels as the Bahama, the Alar, and Laurel. The correspondence is full of evidence that I was correct in my statement of the doctrine of the British Government, and of its action from beginning to end being controlled by that doctrine; and all the remonstrances of the United States were met by the answer that the law of nations, the Foreign-Enlistment Act, the duty of neutrality, had nothing whatever to do with that subject, as it was simply dealing in contraband of war. The importance of this view, of course, and its immense influence in producing the present controversy between the two nations, are obvious. The whole mischief was wrought by the co-operating force of the two legal propositions: (1.) That the unarmed cruiser was not itself a weapon of war, an instrument of war, and, therefore, was not to be intercepted as committing a violation of the law of nations; and, (2.) That the contributory provision by means of her supply-ships, of her armament, munitions, and men, to make her a complete instrument of naval hostilities, was also not a violation of the law of nations, but simply a commercial dealing in contraband. It was only under those combined doctrines that the cruiser ever came to be in the position of an instrument of offensive and defensive war, and to be able to assume the "commission" prepared for her, and which was thenceforth to protect her from interference on the doctrine of comity to sovereignty.
So, too, it will be found, when we come to consider the observations of the eminent Counsel on the subject of due diligence, to which I shall have occasion soon to reply, that the question whether these were hostile acts, under the law of nations, was the turning point in the doctrine of the Government of Great Britain, and of its action, as to whether it would intercept these enterprises by the exercise of executive power, as
a neutral government would intercept anything in the nature of a hostile act under the law of nations. The doctrine was that these were not hostile acts separately, and that no hostile act arose unless these separate contributions were combined in the ports of Great Britain; that there was no footing otherwise for the obligation of the law of nations to establish itself upon; that there was no remissness of duty on the part of the neutral in respect of them; and finally that these operations were not violations of the Foreign-Enlistment Act. All this is shown by the whole correspondence, and by the decisions of the municipal courts of England, in regard to the only question passed upon at all, that of unarmed vessels, so far as they ever passed even upon that question.
It has seemed to be intimated by observations which the learned Counsel has done me the honor to make during my present consideration of this topic, that my argument has transcended the proper limit of reply to the special argument which the eminent Counsel himself has made on the same topic. A reference to the text of that argument will, I think, set this question at rest.
In the fifteenth section of the first chapter of his argument, he does us the honor to quote certain observations in our principal Argument to which he proposes to reply. He quotes, at page 17 of his argument, as follows:
(2.) The next great failure of Great Britain "to use due diligence to prevent" the violation of its neutrality, in the matters within the jurisdiction of the Tribunal, is shown in its entire omission to exert the direct executive authority, lodged in the Royal Prerogative, to intercept the preparations and outfits of the offending vessels, and the contributory provisions, of armament, munitions and men, which were emitted from various ports of the United Kingdom. We do not find in the British Case or Counter Case, any serious contention, but that such powers as pertain to the Prerogative, in the maintenance of international relations, and are exercised as such by other great powers, would have prevented the escape of every one of the offending vessels emitted from British ports, and precluded the subsidiary aids of warlike equipment and supplies which set them forth, and kept them on foot, for the maritime hostilities which they maintained.1
The comment of the learned Counsel upon this passage is found on the same page (17) of his argument, as follows:
With respect to the second passage, it is to be observed, that it not only imputes as a want of due diligence, the abstinence from the use of arbitrary power to supply a supposed deficiency of legal powers, but it assumes that the United States had a right, by international law, to request Great Britain to prevent the exportation from her territory of what it describes as "contributory provisions," arms, munitions, and “subsidiary aids of warlike equipment and supplies," though such elements of armament were uncombined, and were not destined to be combined, within British jurisdiction, but were exported from that territory under the conditions of ordinary exports of articles contraband of war. For such a pretension no warrant can be found, either in international law, or in any municipal law of Great Britain, or in any one of the Three Rules contained in the sixth Article of the Treaty of Washington.
I respectfully submit, therefore, that in the observations I have had the honor to make upon this subject, I can hardly be said to have exceeded the due limits of an argument in reply. I fail to find, in what the eminent Counsel here advances in behalf of his Government, any answer to my assertion that, during the whole course of the war, (a period when he, as Solicitor-General or as Attorney-General of England, was one of the law-advisers of the Government,) the action of Great Britain was governed by the doctrine which I have stated. This was
An error has occurred in the French translation of this passage of the American Argument. In the fifteenth and sixteenth lines of page 343, the words "l'armement de navires hostiles et les fournitures de vivres," should read, "l'equipment de navires hostiles, et les fournitures subsidiaires."