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publicly announced and it was so understood by the rebel agents, by the interests involved in these maritime hostilities, by the United States Minister, by the officials of the British Government, by everybody who had to act, or ask for action, in the premises.
The first instance arising was of the vessel that carried out the armament and munitions for the Alabama, and the answer was as I read from the report of the Commissioners of Customs to the Board of Trade. This official paper stated that the Commissioners found nothing in that affair that touched the obligations of Great Britain. This was communicated to Mr. Adams, and that, thenceforth, was the doctrine and action of the Government of Great Britain.
The view of an eminent publicist on this point, as a question of international law, may be seen from an extract found at page 177 of the Case of the United States. M. Rolin-Jacquemyns says:
Il nous semble que l'adoption d'une pareille proposition équivaudrait à l'inclination d'un moyen facile d'éluder la règle qui déclare incompatible avec la neutralité d'an pays l'organisation, sur son territoire d'expéditions militaires au service d'un des belligérants. Il suffira, s'il s'agit d'une entreprise maritime, de faire partir en deux ou trois fois les élements qui la constituent; d'abord le vaisseau, puis les hommes, puis les armes, et si tous ces éléments ne se rejoignent que hors des eaux de la puissance neutre qui les a laissés partir, la neutralité sera intacte. Nous pensons que cette interprétation de la loi internationale n'est ni raisonable, ni équitable.
It will be, then, for the Tribunal to decide what the law of nations is on this subject. If the Tribunal shall assent to the principles which I have insisted upon, and shall find them to be embraced within the provisions of the three Rules of this Treaty, and that the facts in the case require the application of these principles, it stands admitted that Great Britain has not used and has refused to use any means whatever for the interruption of these contributory provisions of armament and munitions to the offending cruisers.
It is not for me to dispute the ruling of the eminent lawyers of Great Britain upon their Foreign-Enlistment Act; but, for the life of me, I cannot see why the Alar, and the Alabama, and the Laurel, when they sailed from the ports of England with no cargo whatever except the armament and munitions of war of one of these cruisers, and with no errand and no employment except that of the Rebel Government, through its agents, to transport these armaments and munitions to the cruisers which awaited them, were not "transports" in the service of one of the belligerents within the meaning of the Foreign-Enlistment Act of Great Britain. That, however, is a question of municipal law. It is with international law that we are dealing now and here. The whole argument, to escape the consequences which international law visits upon the neutral for its infractions, has been that whatever was blameworthy was so only as an infraction of the municipal law of Great Britain. And when you come to transactions of the kind I am now discussing, as they were not deemed violations of the Foreign-Enlistment Act nor of international law, and as the powers of the Government by force to intercept, though the exercise of prerogative or otherwise did not come into play, the argument is that there were no consequences whatever to result from these transactions. They were merely considered as commercial transactions in contraband of war.
ers was forbidden
But the moment it is held that these things were forbidden by the law of nations, then of course it is no answer to say, you The arming and cannot indict anybody for them under the law of Great equipping the cruis Britain. Nor does the law of nations, having laid down a by the law of nationa. duty, and established its violation as a crime, furnish no means of redressing the injury or of correcting or punishing the evil. What course
does it sanction when neutral territory is violated by taking prizes within it? When the prize comes within the jurisdiction of the neutral, he is authorized to take it from the offending belligerent by force and release it. What course does it sanction when a cruiser has been armed within neutral territory? When the vessel comes within the jurisdiction of the neutral he is authorized to disarm it.
Now, our proposition is that these cruisers, thus deriving their force for war by these outfits of tenders with their armament
They should there
armed when they came again within
fore have been dis- and munitions and men, when brought within the British jurisdiction, should have been disarmed because they had British ports. been armed, in the sense of the law of nations, by using as a base of their maritime hostilities, or their maritime fitting for hostilities, the ports and waters of this neutral state.
Why, what would be thought of a cruiser of the United States lying off the port of Liverpool, or the port of Ushant in France, and awaiting there the arrival of a tender coming from Liverpool, or from Southampton, by pre-arrangement, with an augmentation of her battery and the supply of her fighting-crew? Would it, because the vessel had not entered the port of Southampton or the port of Liverpool, be less a violation of the law of nations which prohibited the augmentation of the force of a fighting-vessel of any belligerent from the contributions of the ports of the neutral?
The fourth chapter of this special argument is occupied, as I have already suggested, with the consideration of the true interpretation of the rules of the Treaty, under general canons of criticism, and under the light which should be thrown upon their interpretation by the doctrines and practices of nations. I respectfully submit, however, that the only really useful instruction that should be sought, or can be applied, in aid of your interpretation of these rules, if their interpretation needs any aid, is to be drawn from the situation of the parties and the elements of the controversy between them, for the settlement and composition of which these rules were framed; and this Tribunal was created to investigate the facts and to apply the rules to them in its award.
The construction of the rules of the Treaty.
The whole ground of this controversy is expressed in the firmest and most distinct manner by the statesmen on both sides who had charge of the negotiations between the two countries, and who could not misnnderstand what were the situation and the field of debate for applica tion to which the high contracting parties framed these rules. And what were they? Why, primarily, it was this very question of the va rious forms of contributory aid from the neutral ports and waters of Great Britain by which the Confederate navy had been made, by which it was armed, by which it was supplied, by which it was kept on foot, by which, without any base within the belligerent territory, it maintained a maritime war.
Anterior to the negotiation which produced the Treaty, there is this public declaration made by Mr. Gladstone, and cited on page 215 of the Case of the United States, "There is no doubt that Jefferson Davis and other leaders of the South have made an army; they are making, it appears, a navy."
There is the speech of Lord Russell on the 26th of April, 1864, also cited on the same page:
It has been usual for a power carrying on war upon the seas to possess ports of its own in which vessels are built, equipped, and fitted, and from which they issue, to which they bring their prizes, and in which those prizes, when brought before a court, are either condemned or restored. But it so happens that in this conflict the Confed
erate States have no ports except those of the Mersey and of the Clyde, from which they fit out ships to cruise against the Federals; and having no ports to which to bring their prizes, they are obliged to burn them on the high seas.
There is, furthermore, the declaration of Mr. Fish, made as Secretary of State, in his celebrated dispatch of the 25th of September, 1869, in which he distinctly proposes to the British Government, in regard to the claim of the United States in this controversy, that the rebel counsels have made Great Britain "the arsenal, the navy-yard, and the treasury of the insurgent Confederates."
That was the controversy between the two countries, for the solution of which the Rules of this Treaty and the deliberations of this Tribunal were to be called into action; and they are intended to cover, and do cover, all the forms in which this use of Great Britain for the means and the opportunities of keeping on foot these maritime hostilities was practiced. The first rule covers all questions of the outfit of the cruisers themselves; the second rule covers all the means by which the neutral ports and waters of Great Britain were used as bases for the rebel maritime operations of these cruisers, and for the provision, the renewal, or the augmentation of their force of armament, munitions, and men. Both nations so agreed. The eminent Counsel for the British Government, in the special argument to which I am now replying, also agrees that the second rule, under which the present discussion arises, is conformed to the pre-existing law of nations.
We find, however, in this chapter of the special argument, another introduction of the retroactive effect, as it is called, of these Rules as a reason why their interpretation should be different from what might otherwise be insisted upon. This is but a re-appearance of what I have already exposed as a vice in the argument, viz, that these Rules, in respect to the very subject for which they were framed, do not mean the same thing as they are to mean hereafter, when new situations arise for their application. Special methods of criticism, artificial limits of application are resorted to to disparage or distort them as binding and authoritive rules in regard to the past conduct of Great Britain. Why, you might as well tear the Treaty in pieces as to introduce and insist upon any proposition, whether of interpretation or of application, which results in the demand that the very controversy for which they were framed is not really to be governed by the Rules of the Treaty.
The concluding observations of this chapter, that the invitation to other powers to adopt these Rules as binding upon them, contained in the Treaty, should discourage a forced and exaggerated construction of them, I assent to; not so much upon the motive suggested as upon the principle that a forced and exaggerated construction should not be resorted to, upon either side, upon any motive whatever.
Review of Sir R. Palmer's criticism
I now come to the more general chapter in the argument of the learned Counsel, the first chapter, which presents under forty-three sections a very extensive and very comprehensive, and cer- upon the Argument tainly a very able, criticism upon the main Argument of the of the United States, United States upon "due diligence," and upon the duties in regard to which due diligence was required, and in regard to the means for the performance of those duties, and the application of this due diligence possessed by Great Britain. Certainly these form a very material portion of the Argument of the United States; and that Argument, as I have said, has been subjected to a very extensive criticism. Referring the Tribunal to our Argument itself as furnishing, at least, what we suppose to be a clear and intelligible view of our propositions of the grounds upon which they rest, of the reasoning which supports them,
of the authorities which sustain them, of their applicability, and of the result which they lead to the inculpation of Great Britain in the matters now under judgment-we shall yet think it right to pass under review a few of the general topics which are considered in this discussion of “due diligence."
The sections from seven to sixteen, (the earlier sections having been The prerogative of already considered,) are occupied with a discussion of what are supposed to be the views of the American Argument on the subject of prerogative or executive power, as distinguished from the ordinary administration of authority through the instrumentality of courts of justice and their procedure. Although we may not pretend to have as accurate views of constitutional questions pertaining to the nation of Great Britain, or to the general principles of her common law, or of the effect of her statutory regulations, and of her judicial decisions as the eminent Counsel of Her Britannic Majesty, yet I think it will be found that the criticisms upon our Argument in these respects are not, by any means, sound. It is, of course, a matter of the least possible consequence to us, in any position which we occupy, either as a nation before this Tribunal or as lawyers in our Argument, whether or not the sum of the obligations of Great Britain in this behalf under the law of nations was referred for its execution to this or that authority under its constitution, or to this or that official action under its administration. One object of our Argument has been to show that, if the sum of these obligations was not performed, it was a matter of but little importance to us or to this Tribunal, where, in the distribution of administrative duty, or where, in the constitutional disposition of authority, the defect, either of power or in the due exercise of power, was found to be the guilty cause of the result. Yet, strangely enough, when, in a certain section of our Argument, that is laid down as one proposition, we are accused by the learned Counsel of a petitio principii, of begging the question, that the sum of her obligations was not performed by Great Britain.
With regard to prerogative, the learned Counsel seems to think that the existence of the supposed executive powers under the British Constitution, and which our Argument has assigned to the prerogative of the Crown, savors of arbitrary or despotic power. We have no occasion to go into the history of the prerogative of the British Crown, or to consider through what modifications it has reached its present condition. When a free nation like Great Britain assigns certain functions to be executed by the Crown, there does not seem to be any danger to its liberties from that distribution of authority, when we remember that Parliament has full power to arrange, modify, or curtail the prerogative at its pleasure, and when every instrument of the Crown, in the exercise of the prerogative, is subject to impeachment for its abuse.
The prerogative is trusted under the British Constitution with all the international intercourse of peace and war, with all the duties and responsibil ities of changing peace to war, or war to peace, and also in regard to all the international obligations and responsibilities which grow out of a declared or actual situation of neutrality when hostilities are pending between other nations. Of that general proposition there seems to be no dispute. But it is alleged that there is a strange confusion of ideas in our minds and in our Argument, in not drawing the distinction be tween what is thus properly ascribable to extra-territoriality or ad extra administration, what deals with outward relations and what has to do with persons and property within the kingdom. This prerogative, it is insisted, gives no power over persons and property within the kingdom
of Great Britain, and it is further insisted that the Foreign-Enlistment Act was the whole measure of the authority of the Government, and the whole measure, therefore, of its duty, within the kingdom. It is said the Government had no power by prerogative to make that a crime in the kingdom which is not a crime by the law, or of punishing a crime in any other manner than through the courts of justice. This of course is sound, as well as familiar, law. But the interesting question is, whether the nation is supplied with adequate legislation, if that is to furnish the only means for the exercise of international duty. If it is not so supplied, that is a fault as between the two nations; if it is so supplied, and the powers are not properly exercised, that is equally a fault as between the two nations. The course of the American Argument is to show that, either on the one or the other of the horns of this dilemma, the actual conduct of the British Government must be impaled.
We are instructed in this special Argument as to what, in the opinion of the eminent Counsel, belongs to prerogative, and what to judicial action under the statute; but we find no limitation of what is in the power of Parliament, or in the power of administration, if adequate parliamentary provision be made for its exercise. But all this course of Argument, ingenious, subtle, and intricate as it is, finally brings the eminent Counsel around to this point, that by the common law of England within the realm, there is power in the Crown to use all the executive authority of the nation, civil and military, to prevent a hostile act towards another nation within that territory. That is but another name for prerogative, there is no statute on that subject, and no writ from any Court can issue to accomplish that object.
If this is undoubtedly part of the common law of England, as the learned Counsel states, the argument here turns upon nothing else but the old controversy between us, whether these acts were in the nature of hostile acts, under the condemnation of the law of nations as such, that ought to have been intercepted by the exercise of prerogative, or by the power of the Crown at common law, whichever you choose to call it. The object of all the discussion of the learned Counsel is continually to bring it back to the point that within the kingdom of Great Britain, the Foreign-Enlistment Act was the sole authority for action and prevention, and if these vessels were reasonably proceeded against, under the requirements of administrative duty in enforcing the ForeignEnlistment Act, as against persons and property for confiscation or for punishment, that was all that was necessary or proper.
Sir ALEXANDER COCKBURN. "Am I to understand you as a lawyer to say that it was competent for the authorities at the port whence such a vessel escaped to order out troops and command them to fire?"
Mr. EVARTS. That will depend upon the question whether that was the only way to compel her to an observance.
Sir ALEXANDER COCKBURN. "I put the question to you in the concrete."
Mr. EVARTS. That would draw me to another subject, viz, a discussion of the facts. But I will say that it depends upon whether the act she is engaged in committing comes within the category of hostile acts.
Sir ALEXANDER COCKBURN. "But taking this case, and laying aside the question of due diligence. The vessel is going out of the Mersey. Do you say as a lawyer that she should be fired upon ?"
Mr. EVARTS. Under proper circumstances, yes.
Sir ALEXANDER COCKBURN. "But I put the circumstances."
Mr. EVARTS. You must give me the attending circumstances that