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show such an act of force is necessary to secure the execution of the public authority. You do not put in the element that that is the only way to bring such a vessel to. If you add that element, then I say yes.
Sir ALEXANDER COCKBURN. "She is going out of the port. They know she is trying to escape from the port. Do you, I again ask-do you, as a lawyer, say that it would be competent for the authorities without a warrant, simply because this is a violation of the law, to on that vessel ?"
Mr. EVARTS. Certainly, after the usual preliminaries of hailing her, and firing across her bows, to bring her to. Finally, if she insists on proceeding on her way, and thus raises the issue of escape from the Government, or forcible arrest by the Government, you are to fire into her. It becomes a question whether the Government is to surrender to the ship, or the ship to the Government. Of course, the lawfulness of this action depends upon the question whether the act committed is, under the law of nations, a violation of the neutrality of the territory, and a hostile act, as it is conceded throughout this argument, the evasion of an armed ship would be.
In section sixteen of this argument you will find the statement of the learned Counsel on this subject of the executive powers of the British Government in this behalf:
It is impossible too pointedly to deny the truth of this assumption, or too pointedly to state that, if any military or naval expeditions, or any other acts or operations of war, against the United States, in the true and proper sense of these words, had been attempted within British territory, it would not have been necessary for the British Government, either to suspend the habeas-corpus act, or to rely on the Foreign-Enlistment Act, in order to enable it to intercept and prevent by force such expeditions, or such acts or operations of war. The whole civil police, and the whole naval and military forces of the British Crown, would have been lawfully available to the Executive Government, by the common law of the realm, for the prevention of such proceedings.
This is the law of England as understood by the eminent Counsel who has presented this argument. Given the facts that make the evasion from the port of Liverpool of the vessel proposed a violation of the law of nations-because it is a hostile act against the United States, and exposes Great Britain to responsibility for the violation of neu trality-then, the situation has arisen, in the failure of civil means, the failure of remonstrance, of arrest and of bringing to, for firing into the vessel. For certainly, if we have authority to stop, we are not to have that authority met and frustrated by the persistence of violent resist ance to it.
It certainly makes very little difference to us whether this authority of the executive to use all its forces for the actual prevention of the occur rence of these hostile transactions within the realm is lodged in what he calls the common law of Great Britain, or is found, as we suppose, in the prerogative of the Crown. Nor do I understand this argument, throughout, to quarrel with the proposition that an armed ship that should undertake to proceed out of the port of Liverpool would be exposed to the exercise of that power; and, of course, if the proper cir cumstances arose, even to the extent to which it has been pushed in answer to the questions put to me by one of the members of the Tribunal. For, if the Queen is to use all her power to prevent a hostile act, and if an armed vessel is, in its evasion of a port, committing a hostile act, that power can be exerted to the point of firing into such
vessel, if necessary, as well as of merely exerting the slightest touch, if that proves sufficient to accomplish the object.1
Sections seventeen to twenty-five are occupied with a discussion concerning the preventive powers and punitive powers under the Preventive and legislation of Great Britain as compared with that of the nitive powers of each United States. While there is here a denial that the British Government ever put itself upon a necessary confinement to the punitive powers of that Act, or that that Act contains no preventive power, or that it contains not so much as the Act of the United States, still, after all, I find no progress made beyond this: that the preventive powers, thus relied upon and thus asserted, as having origin under, and by virtue of, the act, are confined to the prevention that springs out of the ability to punish, or out of the mode in which the power to punish is exercised.
Nor will the text of the Foreign Enlistment Act furnish any evidence that it provides any power for the prevention by law of the evasion of such a vessel, except in the form of prosecution for confiscation, which is one of the modes of punishment. And when this Foreign Enlistment Act was passed in 1819, it was thus left unaccompanied by any executive power of interception and prevention, for the reason, as shown in the debates, that this interceptive and preventive power resided in the prerogative of the Crown, and could be exercised by it. This will be seen from the debates which we have appended in Note B to our Argument.
In comparing that law with the preceding act passed in 1818 by the American Government, the debates in Parliament gave as the reason for the lodgment of this preventive power in the Executive of the United States, by the act of Congress, and for its not being necessary to lodge a similar preventive power in the British Crown, that there was no prerogative in America, while there was in Great Britain.
To be sure, when one of the punishments provided by law is a proceeding in rem for confiscation of the vessel, if you serve your process at a time and under circumstances to prevent a departure of the vessel on its illegal errand, you do effect a detention. But that is all. The trouble with that detention is, that it is only a detention of process, to
1 It would seem to be quite in accordance with the ordinary course of Governments in dealing with armed (or merchant) ships, that refuse obedience to a peaceful summons of sovereignty to submit to its authority, to enforce that summons by firing into the contumacious ship.
In "Phillimore," vol. iii, pp. 231-4, will be found the orders of the British Government in the matter of the "Terceira Expedition," and an account of their execution. Captain Walpole "fired two shots, to bring them to, but they continued their course. The vessel, on board of which was Saldanha, although now within point blank range of the Ranger's guns, seemed determined to push in at all hazards. To prevent him from effecting his object, Captain Walpole was under the necessity of firing a shot at the vessel, which killed one man and wounded another." (P. 232.)
The eighth article of the Brazilian Circular of June 23, 1863, provides for the necessary exhibition of force, as follows:
"8. Finally, force shall be used (and in the absence or insufficiency of this, a solemn and earnest protest shall be made) against a belligerent who, on being notified and warned, does not desist from the violation of the neutrality of the Empire. Forts and vessels of war shall be ordered to fire on a belligerent, who shall," &c. (7 Am. App., p. 113.)
Indeed, there is no alternative, unless the solution of the difficulty laid down by Doggberry is preferred:
"DOGBERRY. You are to bid any man stand in the prince's name.
"WATCH. How if he will not stand?
"DOGBERRY. Why, then, take no note of him, but let him go; and presently call the rest of the watch together, and thank God you are rid of a knave."
[SHAKESPEARE, Much Ado about Nothing, Act iii, Sc. 3.
bring to issue and to trial a question of private right, a confiscation of the ship, which is to be governed by all the rules of law and evidence, which are attendant upon the exercise of authority by the Crown, in taking away the property of the subject.
It never was of any practical importance to the United States, whether the British Government confiscated a ship or imprisoned the malefactors, except so far as this might indicate the feelings and sympathy of that nation. All we wished was, that the Government should prevent these vessels from going out. It was not a question with us, whether they punished this or that man, or insisted upon this or that confiscation, provided the interception of the cruisers was ef fected. When, therefore, we claimed under the Foreign Enlistment Act or otherwise, that these vessels should be seized and detained, one of the forms of punitive recourse under that act would have operated a detention, if applied at the proper time and under the proper circumstances. Confiscation had its place whenever the vessel was in the power of the Government; but it was only by interception of the enterprise that we were to be benefited. That interception, by some means or other, we had a right to; and if your law, if your constitution, had so arranged matters that it could not be had, except upon the ordinary process, the ordinary motives, the ordinary evidence, and the ordinary duty by which confiscation of private property was obtained, and that provision was not adequate to our rights, then our argument is that your law needed improvement.
But it is said that nothing in the conduct of Great Britain, of practical importance to the United States, turned upon the question whether the British law, the Foreign Enlistment Act, was applicable only to an armed vessel, or was applicable to a vessel that should go out merely prepared to take its armament. How is it that nothing turned upon that question? It is so said because, as the learned Counsel contends, the Government adopted the construction that the statute did embrace the case of a vessel unarmed. But take the case of the Alabama, or the Florida, for an illustration, and see how this pretension is justified by the facts. What occasioned the debates of administrative officers! What raised the difficulties and doubts of custom-house and other officials, except that the vessel was not armed, when, as regards both of these vessels, the Executive Government had given orders that they should be watched? Watched! watched, indeed! as they were until they went out. They were put under the eye of a watching supervision, to have it known whether an armament went on board, in order that then they might be reported, and, it may be, intercepted. The whole administrative question of the practical application of authority by the British Government, in our aid, for the interception of these vessels, turned upon the circumstance of whether the vessel was armed or was not armed. Under the administration of that question, they went out without armaments, not wishing to be stopped, and, by pre-arrangement, took their armaments from tenders that subsequently brought them, which, also, could not be stopped.
Certain observations of Baron Bramwell are quoted by the learned Counsel in this connection, which are useful to us as illustrating the turning point in the question as to armed and unarmed vessels. They are to this effect, and exhibit the British doctrine:
A vessel fitted to receive her armament and armed, is a vessel that should be stopped under an international duty. This amounts to an act of proximate hostility which a neutral is bound to arrest. Baron Bramwell held that the emission of a vessel armed is, un
doubtedly, a hostile expedition within the meaning of the law of nations. But a vessel fitted to receive her armament in the neutral port, and sent out of that port by the belligerent only in that condition, he held is not an enterprise in violation of the law of nations, and is not a hostile expedition in the sense of that law. By consequence, Baron Bramwell argued, nothing in such an enterprise of a belligerent from a neutral port calls for the exercise of authority on the part of the neutral, either by law or by executive interference, and, until the armament gets on board, there is nothing to bring the case within the province of international proscription and of international responsibility. It was then, he argues, only a question for Great Britain whether the provisions of the Foreign Enlistment Act can touch such a vessel, and the only question for the British Government was as towards the United States, have they done their duty to themselves in the enforcement of the municipal law, which involves a question of international responsibility to the United States? We insist, therefore, that so far from nothing practical turning upon this distinction, all the doubts and difficulties turn upon it, especially in connection with the ancillary proposition that these vessels could be provided, by means of their tenders, with armaments, without any accountability for the complete hostile expedition.1
It is said that we can draw no argument as to the deficiency of their old Act, from the improved provisions of the new Act of 1870. Why not? When we say that your Act of 1819 was not adequate to the sitnation, and that, if you had no prerogative to supply its defects, you should have supplied them by Act of Parliament-that you should have furnished by legislation the means for the performance of a duty which required you to prevent the commission of the acts which we complain of it is certainly competent for us to resort to the fact that, when our war was over, from thenceforth, movements were made toward the amendment of your law, and that, when the late war on the continent of Europe opened, your new Act was immediately passed containing all the present provisions of practical executive interception of such illegal enterprises-it is, I say, competent for us to refer to all this as a strong as well as fair argument, to show that, even in the opinion of the British Parliament, the old Act was not adequate to the performance of the international duties of Great Britain the United States.
The failure of Great
investigation or pro
Sections 27 to 30 of the special argument are occupied with a discussion of that part of our Argument which alleges, as want of due diligence, the entire failure of Great Britain to have an Britain to originate active, effective, and spontaneous investigation, scrutiny, ceedings, report, and interceptive prevention of enterprises of this kind. Well, the comments upon this are of two kinds: first, concerning the question, under a somewhat prolonged discussion of facts, whether the Government did or did not do this, that, or the other thing; and, then, con
1 Mr. Théodore Ortolan, in a late edition of his "Diplomatie de la mer," tome ii, says: "Nous nous rattacherons, pour résoudre en droit des gens les difficultés que présente cette nouvelle situation, à un principe universellement établi, qui se formule en ce peu de mots: 'Inviolabilité du territoire neutre.' Cette inviolabilité est un droit pour l'état neutre, dont le territoire ne doit pas être atteint par les faits de guerre, mais elle impose, aussi, à ce même état neutre, une étroite obligation, celle de ne pas permettre, celle d'empêcher, activement au besoin, l'emploi de ce territoire par l'une des parties, ou au profit de l'une des parties belligérantes, dans un but hostile à l'autre partie.”Case of the U. S., p. 182.
2 It does not seem profitable to go into a minute examination of the proofs before the Tribunal to establish the propositions of our Argument specially controverted in sections 29 and 30 of the present argument of the eminent Counsel. Although the letter of Earl Russell, quoted by the learned Counsel, does, incidentally, refer to certain
cerning the more general question, as to whether the Rules of this Treaty call upon this Tribunal to inquire into any such deficiency of diligence which was not applicable to the case of a vessel respecting which the British Government "had reasonable ground to believe" that a violation of the law was meditated.
Our answer to this latter question is, that the Rules together, in their true construction, require the application of due diligence
The "due dili
required by (particularly under the special emphasis of the third Rule) gence to prevent a to prevent" the occurrence of any of the infractions of the
the Rules is a dili
law of nations proscribed by the Rules.
There are two propositions in these Rules. Certain things are assigned as violations of the law of nations, and as involving a duty on the part of a neutral Government to prevent them; and besides in and toward preventing them, it is its duty to use due diligence. In regard to every class of alleged infractions of these Rules, there comes to be an inquiry, first, whether, in the circumstances and facts which are assigned, the alleged infractions are a violation of any of the duties under the law of nations as prescribed by those Rules. If not, they are dismissed from your consideration. But if they are so found, then these Rules, by their own vigor, become applicable to the situation, and then comes the inquiry whether Great Britain did, in fact, use due diligence to prevent the proscribed infractions. It is under the sections now under review that the learned Counsel suggests whether it is supposed that this general requirement of the use of due diligence by Great Britain is intended to cover the cases of vessels like the Shenandoah and the Georgia, (which it is alleged the British Government had no reasonable ground to believe were meditating or preparing an evasion of the laws or a violation of the duties of Great Britain,) or the cases of these tenders that supplied the Georgia and the Shenandoah and the Florida and the Alabama with their armaments and munitions of war-it is under these sections that this discussion arises. The answer on our part to this suggestion is, that the general means of diligence to keep the Government informed of facts and enable it to judge whether there was "reasonable ground to believe" in any given case, and thus enable it to be prepared to intercept the illegal enterprise, are required in cases that the Rules proscribe as infractions of neutrality.
I will agree that under the first clause of the first Rule the duty is applied to a vessel concerning which the Government "shall have reasonable ground to believe," &c. Under the second clause of the first Rule, this phrase is omitted, and the question of "reasonable ground to believe" forms only an element in the more general question of "due diligence." Under the second Rule also, the whole subject of the use of the neutral ports and waters as a base of naval operations is open; and, if there has been a defect of diligence in providing the officers of Great Britain with the means of knowledge and the means of action, to prevent such use of its ports and waters as a base of operations, why, then, Great Britain is at fault in not having used due diligence to prevent such use of its ports and waters. That is our argument; and it seems to us it is a sound argument. It is very strange if it is not, and if the duty of a government to use due diligence to prevent its ports
instructions having been given to subordinate officials, yet we look in vain, through the proofs of the British Government, for the text or date or circulation of these instructions. As for the rest, we find nothing in the instances cited, in which specific information happened to be given in regard to this or that vessel or enterprise, which contravenes our general propositions of fact, in this behalf, or the influence of want of due diligence on the part of the British Government, which we have drawn from those facts.