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rates; and, while the British Government acted in the matter of enlistments as if the act passed during the war with Russia was supreme over all the sovereign rights of other governments, so it now assumes that an act of Parliament is supreme over all the neutral rights of other governments.
On the former occasion Great Britain came in conflict with the neutrality laws of the United States and Prussia. In each of these countries, she assumed to carry into effect a domestic act of Parliament of her own, without asking the consent of the local government. In each of them, her agents were indicted and convicted of violation of the municipal law of the land. And in the United States, where the British minister was personally compromised in these unlawful acts with various British consuls, in disregard of their diplomatic or semi-diplomatic quality, it became painfully necessary for the American Government to withdraw the exequaturs of the consuls, and to deliver his passport to Mr. Crampton.2
We trust the Tribunal, on the perusal of those documents, will be satisfied of the sincerity and good faith with which the American Government executed its municipal laws, and discharged its neutral duties, on this, the only occasion, since the revolutionary action of France, in which any foreign government has undertaken to perpetrate such acts in the United States.
Qualis ab incepto talis ad finem. With consistency unwavering, and at whatever hazard of domestic or foreign inconvenience, even if it were friendly powers like France and Great Britain with which we were thus brought into contention, the United States have steadily adhered to the principles of international neutrality; and we may well, therefore, demand the observance of those principles, or reparation for their non observance, on the part of Great Britain.
X. We repeat a previous remark, that we are not disposed to follow the example set us in the British Case and Counter Case, as Great Britain as a we might well do, by entering into examination and arraign
The course of
belligerent towards Beutrals.
ment of the course pursued by Great Britain at various times on the subject of neutrality in her controversies with other governments. It is not agreeable to a friend to be compelled to say,
"All his faults observed,
Set in a note-book, learned and conned by note,
This the British Case does, wantonly, offensively. If the United States were to scan with like evil eye every occasion in which Great Britain might seem to have neglected her duty as a neutral, or to have violated the rights of neutrals, we might produce a fearful list of charges; and such examination would be more pertinent to the present issue, and bring into view matters more pregnant of instruction, than those as to which the conduct of the United States is called in question here by the British Government.
Orders in council.
We content ourselves, in this relation, with a brief reference to twoor three great controversies of special interest to the American Government, where the British Government has manifested its views of the duties of neutrality, and of the manner of dealing with alleged breaches. thereof by the neutral.
1. The celebrated orders in council, issued by the British government in retaliation of the Berlin and Milan decrees of the first Napoleon, involved intense assertion of neutral obliga
Phillimore, 1st ed., pref., p. 11; Chitty's Practice, pref., p. 5, note.
See the documents on this subject in the Appendix to the American Counter Case..
tion; and that in the form of acts of force as against the United States, which responded to these wrongful measures by an act of Congress forbidding all commercial intercourse between our citizens and either of the belligerents. This act, says Phillimore, "ranks high in the history of nations. It conveyed a just and dignified rebuke both to France and England, and it was worthy of the country which has contributed such valuable materials to the edifice of international law." 2
Course toward France during the American Revolu
2. The discussion between Great Britain on the one hand, and France on the other, in the first year of the American Revolution, produced three papers on the subject of neutral obligation, of the greatest importance in the diplomatic history of mod- tion. ern times, and which contain many observations pertinent to the present. controversy, namely, the "Exposé des motifs de la conduite du Roi de France relativement à l'Angleterre, 1779;" the responsive" Mémoire justificatif," published by the court of London, the authorship of which is attributed to the historian Gibbon; and the "Observations de la Cour de Versailles sur le Mémoire justificatif de la Cour de Londres."3
3. Meanwhile, controversy was pending between Great Britain and the Netherlands similar to that with France. The British Gov- Course toward ernment complained that the Government of the United the Netherlands. Provinces had not exercised due diligence to prevent their subjects from furnishing arms and other supplies to the Americans; and that abuse of the right of asylum in the ports of the Netherlands had been suffered the advantage of the Americans and the prejudice of Great Britain.
Especially is it interesting to see, in this controversy with the Netherlands, that Great Britain complained incessantly of occurrences in the Dutch colonies of Saint Eustatius, Saint Christopher, Curaçao, and Surinam, charged as breaches of neutrality, although acts by no means so serious as those, of a similar nature, which the United States here charge against Great Britain, in regard to the Bahamas, Bermuda, and other British possessions in the West Indies.
The Government of the United Provinces, unlike France, had no thought or purpose of departing from neutrality. It defended the acts, inculpated as breaches of neutrality, by the same arguments, in reference to commerce, and to the right of asylum, as Lord Russell employed in discussion with Mr. Adams. But the British Government regarded all those acts as acts of neutral negligence or of belligerent complicity on the part of the United Provinces, and as a sufficient cause of war, and thus forced the Netherlands into an armed alliance with the United States.1
But the prudent and sagacious statesmen, who have administered the foreign affairs of the United States in the present controversy, have preferred a patient perseverance of insistance in the right direction, so as to cause arbitration to be substituted for the more dread issue, to which, in like circumstances, men of less wisdom conducted Great Britain.
X. The Counsel of the United States desire to say in conclusion of this part of the Argument, that we have, by the imperative General obligations exigencies of the present controversy, been compelled to of neutrals. compare and contrast the manner in which the duties of neutrality have been performed at different epochs by the United States and by Great Britain, and especially to insist on the delinquency of the British Gov
1 Manning, Law of Nations, vol. iii, ch. 10; Phillimore, vol. iii, p. 412.
2 Vol. iii, p. 250.
3 See these documents at large in Martens, Causes célèbres, tome iii, cause 2de.
See the history of this controversy in Martens, Causes célèbres, tome ii, cause 10me.
ernment, in this respect, relatively to the American Government. We could not otherwise discharge the special duty devolved upon us in be half of the United States.
We concede the embarrassments which a state of war throws upon neutral nations, by reason of the conflict which it involves between the interests of the latter and those of the belligerent state or states.1
The right of neutrality, we concede and admit, is co-extensive with the right to declare war and to make peace. All these rights are included in the simple right of national independence and sovereignty.
Recognizing, then, the right of neutrality as equally sacred with the right to make war, we insist that the duty of neutrality corresponds to the right, although to the prejudice of one or the other belligerent; and in so far as the right of neutrality obstructs belligerent operations, the neutral State may nevertheless stand on its neutrality, even combatively. But such neutral must stand there in an attitude of absolute impartiality that is of course.3
And such impartiality implies as well impartiality of inaction as im partiality of action.
Neutrality, as defined by Klüber, is the condition of a neutral people, who, in the case of war, render succor to neither of the belligerent parties.5
As defined by Hübner, neutrality consists in complete inaction relatively to the war, and in exact and perfect impartiality, manifested by means of acts with regard to the belligerents, in everything which has relation to the war, and to the means, direct and indirect, of carrying it on.6
Azuni defines neutrality to be the continuation of the state of peace on the part of a power, which, on war arising between two or more nations, abstains absolutely from taking any part therein; and this last definition has the approval of one of the most conspicuous of the modern jurists of Italy.
But in whatever sense neutrality is to be defined, and howsoever it originates, certain it is, that such neutrality must be one of absolute good faith it must not degenerate into war in disguise.
Accepting, as we do, the comprehensive definition of neutrality given by Fioré, we need not scruple to cite the appreciation, which that intelligent author expresses, of the historical attitude of the United States in the relation.
"In spite," says Fioré, "of the efforts of Holland and Scandinavia. the cause of neutrals found no real support until there arose a powerful State to maintain their common rights. It was not, in truth, before the constitution of the potent neutral State of the United States of America. which was followed by the league of the armed neutrality in the seas of Europe, that the right of neutrals, having solid support to stand on began to develop itself progressively, until that right reached its assured
1 See Casanova, Del Diritto Internazionale, vol. ii, lez. 21.
2 Klüber. Droit des Gens, § 279; Galiani, Dei Doveri dei Principi, pt. i, c. 3; Hautefeuille, Droits et Devoirs des Nations neutres, tom. i, p. 376.
3 Martens, Droit des Gens, éd. Vergé, tome ii, p. 292 et seq.; Heffter, Droit international, p. 276 et seq.; Cauchy, Droit maritime, passim.
4 Massé, Le Droit commercial dans ses Rapports avec le Droit des Gens, tomo i, p. 165. 5 Droit des Gens, chap. ii, § 279.
De la Saisie des Bâtiments neutres, tome i, part 1, chap. ii.
7 Diritto Marittimo dell' Europa, cap. i, art. 3.
See the complete and exhaustive discussion of this question in Calvo, Derecho internacional, Teorico y Practico, de Europa y America, tome ii, pp. 150, 403. See, also, Gessner, Droit des Neutres sur Mer, passim.
triumph, in resolving, by principles of justice, the multifarious questions, which had agitated past ages."
We need not stop to inquire against what power it was that these efforts for the development and establishment of neutral rights were directed by the neutral powers which acted in concert to that great end.2
The Counsel of the United States may be permitted, in view of the express or implied charges of the British Case and Counter Case, to regard with satisfaction, if not with pride, the part thus accorded to their country, in the maintenance of neutral rights, and the discharge of neutral duties alike, by the impartial voice of Europe.3
1 Fioré, Nouveau Droit international public suivant les besoins de la civilisation moderne, tome ii, p. 388.
See Cauchy, Droit Maritime, tome i, préf.; Cussy, Phases, &c., préf.
3 Among the matters which the British Case or Counter Case introduces to attention are several which are too insignificant for notice in the text, but which may need a word of commentary.
John Laird, ex-partner and father of "John Laird, Sons & Co.," ap- John Laird as a pears making statements against the United States.
The Lairds, it should seem, would better hide their heads. And it would seem that Great Britain, who, largely by their means, has been involved in acts which profoundly, and perhaps permanently, disturb her relations with the United States, had had quite enough of such persons.
As witnesses, they are worthless. Laird, senior, dishonored himself by deceptive statements in the House of Commons with respect to the operations of Laird, Sons & Co. The time when he could win applause there by boastful hostility to the United States has passed. Neither Lord Palmerston, if living, nor Lord Russell, if in the House of Commons, nor Mr. Gladstone himself, could look with complacency to-day on the ship-building firm which so zealously served the confederates, to the injury alike of Great Britain and of the United States.
1. John Laird says that a man-of-war was built in the United States for Russia, and delivered to her during her late war with Great Britain. Proof, a newspaper statement in the Times. Laird and the Times are both mistaken. The case of the Maury, mentioned by Sir Roundell Palmer, shows that at this period British officers in America, while engaged in violating the American foreign enlistment act themselves, were watchful to prevent its violation by Russia.
Laird communicated to Lord Tenterden, December 12, 1871, copies of letters between Laird, Sons & Co. and Mr. H., an American, who corresponded with the former on the subject of building a ship or ships for the United States. The correspondence shows that Mr. H. was a mere speculator on his own account, wholly without any authority from the Secretary of the Navy of the United States. "Our Department of Naval Affairs," as he ignorantly calls it, and our "Minister of the Navy," which expressions alone ought to have satisfied the Lairds that they were being victimized by some ingenious New Yorker. Mr. H. abusively referred to the Secretary of the Navy to promote his own private interests or those of the Lairds.
John Laird, in the zeal of his sympathy with the rebellion, made the same statement in the House of Commous long ago, and was flatly contradicted by Mr. Welles, the American Secretary of the Navy.
The superserviceable Mr. H. had no commission from the American Government. He began to treat orally with the Lairds, early in 1861, before the arrival of Mr. Adams in England. No officer of the United States appears to have countenanced Mr. H., but the Navy Department, according to Mr. Welles, was importuned by more than one person in behalf of Mr. Laird. If Mr. H. was the agent of anybody, it was of the Lairds.
The British Government must be in desperate straits for defense, when it condescends to resuscitate the stale calumnies of "un homme taré," like John Laird, and to put them into its Case.
2. In this connection we dispose of another of the smaller items of accusation of the United States.
It is charged in the British Case that we purchased arms in England. Was it not lawful to do so, according to the accepted law of nations?
Purchase of arms.
This charge is another illustration of the injustice of that act of the British Government which assumed to put the United States and their rebels on a footing of international equality in the markets of Great Britain.
Not thus have the United States deported themselves toward Spain in the matter of Cuba.
V.-STATEMENT OF SOME GENERAL FACTS PERTINENT TO THE INQUIRY, AND APPLICABLE TO EACH CRUISER.
The United States in their Case, which was delivered to the Tribunal of Arbitration on the 15th day of December last, presented
Resume of facts
stated in the Ameri- evidence to establish the following facts:
can Case to estab
Ish unfriendly ani- 1. That before the outbreak of the insurrection in the
mus of British gov
ernment and people. United States, Her Majesty's Government invited the Government of the French Emperor to act jointly with the British Government in the anticipated rising of the insurgents.
2. That before an armed collision had taken place, Her Majesty's Government determined to recognize the insurgents as belligerents, whenever the insurrection should break out.
3. That, in accordance with the previous invitation to the French Government, Her Majesty's Government announced its decision so to recognize the insurgents, and invited France to do the same, as soon as it heard of the outbreak of the insurrection, and before it had official information of the steps which the Government of the United States proposed to take for the suppression of the same.
4. That after the announcement of this decision was made, and before the Queen's Proclamation was issued in accordance therewith, the attention of Her Majesty's Government was called in both houses of Parliament to results which it was supposed would follow the recognition of the insurgents as belligerents, viz, that they would be entitled to carry on war on the ocean, and to issue letters-of-marque.
5. That, simultaneously with the invitation to the French Government to join in the recognition of the insurgents as belligerents, that Government was invited to join Her Majesty's Government in an effort to obtain from the insurgents certain advantages to British and French commerce, on the condition, held out in advance, that the right of the insurgents to issue letters-of-marque should not be questioned.
6. That these steps were taken clandestinely, without the knowledge of the United States; and that the desired advantages were obtained, and the right of the insurgents to issue letters-of-marque was recognized.
7. That these unfriendly acts, committed before or soon after the outbreak of the insurrection, were supplemented by other unfriendly acts injurious to the United States and partial toward the insurgents.
8. That they were also supplemented by public speeches made by various members of Her Majesty's Government, at various times, throughout the war, showing that the speakers had personal sympathies with the insurgents, and had active desires that they should succeed in their attempts to defeat the forces of the United States.
The United States further insisted in their Case that the facts which they had so established showed an unfriendly feeling toward them, which might naturally lead to, and would account for, a want of diligence bordering upon willful negligence.
The British re
Her Majesty's Government has met this part of the Case sponse no denial. of the United States by the following averments:
To the second chapter of the American Case, which imputes to the British govern