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IX.---ARGUMENT OF SIR ROUNDELL PALMER ON THE SPECIAL QUESTION AS TO THE LEGAL EFFECT OF THE ENTRANCE OF THE FLORIDA INTO THE PORT OF MOBILE, ON THE RESPONSIBILITY, IF ANY, OF GREAT BRITAIN FOR THAT SHIP.
It is important to consider the principle applicable to the special case of the Florida, after she had entered the Confederate port of Mobile, and there remained several months and enlisted a new crew, before cruising or committing hostilities against the shipping of the United Staies. If the antecedent circumstances, applicable to this vessel, are such as (in the view of the Tribunal) to justify the conclusion that any want of due diligence, in respect to her, can be imputed to Great Britain, the ques. tion arises, whether such want of due diligence involves, as its legiti. mate consequence, responsibility for her acts, in the view of the fact that she never cruised or committed any acts of hostility against the United States until after she had been for a long interval of time in a Confed. erate port, and had thence issued as a duly commissioned Confederate cruiser, and in an altered condition as to her capacity for war.
The facts which occurred as to this vessel are really not distinguishable, in principle, from the case of a ship of war transported from a neutral to a belligerent country by a breach of blockade, manned and made capable of cruising for the first time in the belligerent country, and afterward actually cruising from tbence. It is certain that the crew which was hired to sail with the Florida from Englaud to Nassau, was not hired, and did not serve, for any purpose of war; it is equally cer. tain that no sufficient crew for such purpose was obtained by her in the Bahamas, or elsewbere within any British possession. She did not enter the port of Mobile simply in transitu, or as a point of immediate departure for a subsequent cruise, for which the necessary preparation had been already made within British territory; but she remained there more than four months, from the 4th of September, 1863, to the 15th of January, 1864. She there engaged the crew which enabled her to go to sea, and to commit hostilities against the shipping of the United States.
On what principle would such a case as this have been dealt with by international law, if the question bad not been one of national responsibility, sought to be cast upon Great Britain, but had arisen under the well-established rules applicable to neutral citizens concerned in breaches of blockade, and in the conveyance of contraband of war to an enemy ? If the direct agents in conveying the Florida into Mobile (supposing she had been brought in by and under the charge of another British ship) would not have been under any continuing responsibility by international law, after leaving her there and returning to their own country, how can it be said tbat such a continuing responsibility ought to attach upon the nation from whose territory she was sent out, merely for want of the use of due diligence to prevent that transaction ? Professor
i United States App., vol. vi, pp. 307, 331. > Ibid., p. 334. 3 Brit. App., vol. i, pp. 117, 120-122.
Bluntschli, in his paper on the Alabama question, (“ Revue de droit international," 1870,) says, (page 473 :)
Il ne faut d'ailleurs pas perdre de vue que tous ces effets désastreux sont en premier lieu imputables, non pas au gouvernement anglais, mais aux croisenrs eux-mêmes. Personne n'accusera le gouvernement anglais d'avoir donné mission de détruire les navires de commerce américains ou d'avoir, par ses agissements, entravé on endommagé la marine américaine. Ce que l'on peut lui reprocher à bon droit, en supposant que les faits cités plus haut doivent être considérés comme avoués ou prou vés, ce n'est pas un fait, mais une omission contre le droit. Sa fante ne consiste pas à avoir équipé et appareillé les corsaires, mais à n'avoir pas empêché leur armement et leur sortie de son territoire neutre. Mais cette faute n'a qu'un rapport indirect, et nullement un rapport direct, avec les déprédations réellement commises par les corsaires.'
In the case of a breach of blockade the offense is deemed by international law to be “ deposited,” and the ottense of the neutral vessel to be terminated when she bas once completed her return voyage. “The penalty,” says Chancellor Kent, “never travels on with the vessel further than to the end of the return voyage; and, if she is taken in any part of that voyage, she is taken in delicto.” (Commentaries, vol. I, p. 151.) As to contraband, the law is thus stated in Wheaton's " Elements," (Law. rence's Edition, p. 809 :)
The general rule as to contraband articles, as laid down by Sir W. Scott, is, that the articles must be taken in delicto, in the actual prosecution of the voyage to an enemy's port. Under the present understanding of the law of nations you cannot generally take the proceeds in the return voyage. From the moment of quitting port on a hostile destination, indeed, the offense is complete, and it is not necessary to wait till the goods are actually endeavoring to enter the enemy's port; but beyond that, if the goods are not taken in delicto, and in the actual prosecution of such a voyage, the penalty is not now generally held to attach.
Mr. Wheaton adds, by way of qualification, that “the same learned judge applied a different rule in other cases of contraband, carried from Europe to the East Indies, with false papers and false destination, intended to conceal the real object of the expedition, where the return cargo, the proceeds of the outward cargo taken on the return voyage, was held liable to condemnation.” These were the cases of the Rosalie and Betty and the Nancy; as to which, in a note, the learned author says:
The soundness of these last decisions may be well qnestioned ; for, in order to sus. tain tbe penalty, there must be, on principle, a delictum at the moment of seizure. To subject the property to confiscation while the offense uo longer continues, would be to extend it indefinitely, not only to the return voyage, but to all future cargoes of the vessel, which would thus never be purified from the contagion communicated by the contraband articles.
If the analogy of these cases is followed, and what nearer analogs can be suggested !) Great Britain cannot be held responsible for the cruises of the Florida after her departure from Mobile in January, 1864.
The case of tbe Gran Para (reported in the seventh volume of Mr. Wheaton's Decisions in the Supreme Court of the United States, p. 471): is certainly not an authority for any contrary principle or conclusion. The question there was not whether any authority of the United States should seize or detain the ship Irresistible, (then in the war service of General Artigas as chief of the so-called "Oriental Republic,") which was held to have been illegally fitted out in a port of the United States, in violation of the neutrality law of that country-much less whether the United States ought to be held responsible for any of her captures upon the high seas-but solely, whether the cruise on which she had taken a prize, (the Gran Para,) which was actually brought into a port
The italics in this quotation are in the original text of M. Blüntschli.
of the United States, was so disconnected from her original illegal outfit, by the fact of her having been at Buenos Ayres during the interval, as to make it proper for the Courts of the United States to refuse to exercise jurisdiction for the purpose of restoring that prize to her original Portuguese owner? Upon the whole circumstances of the case tbis question was determined in the negative. The material facts being that the Irresistible was built at Baltimore, in all respects, for purposes of war; that she there enlisted a crew of about fifty men, and took in a sufficient armament for the purpose of the cruise in which she was afterwards engaged; that she went to Buenos Ayres, staid there only a few weeks, went through the form of discharging, but immediately afterwards re-enlisted, substantially, the same crew; obtained no new outfit or armament; took a commission from the Government of Buenos Ayres to cruise against Spain, but sent back that commission on the very next day after leaving the port, when the officer in command produced a wholly different commission from General Artigas, as chief of the “Oriental Republic, under which he proceeded actually to cruise. It was with reference to this state of circumstances, (so different from the facts relative to the Florida at Mobile,) that Chief Justice Marshall held that this was a colorable, and not a real termination of the original cruise.
The principle, (he said) is now finally settled, that prizes made by vessels which have violated the Acts of Congress that have been enacted for the preservatiou of the neutrality of the United States, if brought within their territory, shall be restored. The question therefore is, does this case come within the principle !
This Court has nerer decided that the ofj'ense adheres to the ressel, whatever changes may have taken place, and cannot be deposited at the termination of the cruise in preparing for which it was committed; and, as the Irresistible made no prize on her passage from Baltimore to the River La Plata, it is contended that the offense was deposited there, and that the Court cannot connect her subsequent cruise with the transactions at Baltimore.
If this were to be admitted in such a case as this, the laws for the preservation of our neutrality would be completely eluded, so far as this enforcement depends on the restitution of prizes made in violation of them. Vessels completely fitted in our ports for military operations need only sail to a belligerent port, and there, after obtaining a commission, go through the ceremony of discharging and re-enlisting their crew, to become perfectly legitimate cruisers, purified from every taint contracted at the place where all their real force and capacity for annoyance was acquired. This wonld indeed be a fraudulent nentrality, disgraceful to our own Governinent, and of which no nation wonld be the dupe. It is impossible for a moinent to disguise the facts, that the arms and ammunition taken on board the Irresistible at Baltimore were taken for the purpose of being used on a cruise, and that the men there enlisted, thongh engaged in form as for a commercial voyage, were not so engaged in fact.
It is submitted that there is nothing whatever, in the view thus taken by Chief Justice Marshall, which can have any tendency to establish the responsibility of Great Britain for captures of the Florida, made after she left Mobile, and never brought into any British port. The simple ground of the decision was that which the Chief Justice announced at the beginning of his judgment :
The principle is now firmly settled, that prizes made by vessels which have violated the Acts of Cougress that have been enacted for the preservation of the neutrality of the United States, it bronght within their territory, shall be restored. The only question, therefore, is, does this case come within the principle ?
And it was held to be within that principle, not because the offense was one which could never be “deposited,” but because the “ depositation” relied upon in that case was not real but only pretended.
That case, in fact, fell short of deciding so much even as this: that if a prize, taken by the Florida after her departure from Mobile, bad been brought into a British port, and if the same rule as to the restitution of prizes, which is the settled and known law of the United States, had also been the settled and knowu law of Great Britain, such a prize ought to have been restored to her original owners. This is the utmost extent to which the authority of the case of the Gran Para could ever be supposed to go. But the circumstances are, in all esseutial points, so widely dissimilar, as to make it no authority, even for that limited purpose.
If, in such a case as that of the Florida, the neutral State were held liable for the captures made by her in her first cruise, after leaving Mobile, it seems unavoidably to follow (and this appears to be the conclu. sion actually insisted on by the United States) that there must be unlimited liability for all her subsequent cruises, and that the offense could never be “deposited.”
But this is not only not a just inference from, it is in fact contradictory to, the doctrive to which Chief Justice Marshall bas always been understood in the United States to have given the sanction of his authority in the Gran Para case. Part of the Rubric, or marginal note, prefised by the reporter to that case, is in these words : "A bona fide termination of the cruise, for which the illegal armament was here obtained, puts an end to the disability growing out of our neutrality laws which does not attach indefinitely."
The Florida could not have cruised without a proper crew; it was in a port of her own country that she first obtained such a crew, and so acquired the capacity of cruising. The equipment, which she bad received before reaching Mobile, was therefore only partial and incomplete. Even assuming that she obtained this equipment under circumstances which involved some failure in the use of proper diligence on the part of Great Britain, on what principle can Great Britain be charged with all her subsequent captures? Would not such a principle involve the Jiability of a neutral State to be charged with all captures made by a vessel which had obtained, within its territory, through some want of due diligence on the part of its authorities, any kind or degree whatever of equipment, or augmentation of warlike force, however impossible it might be to prove that such equipment or augmentation of force was the proximate cause of any of her captures, and in however large a degree other causes may have evidently contributed to her means of offense? If what was done to the Florida at Mobile had been done in a Spanish port, by the permission or culpable neglect of the authorities; it, after lying for four months in a Spanish port, she had there, for the first time, obtained a fighting crew, and had been dispatched from thence to prey upon American commerce, would it still have been contended that Great Britain, and not Spain, was liable? Or would it have been contended that both Great Britain and Spain were liable, under such circumstances, and that the liability of both was indefinite and unlimited till the conclusion of the war? Will the Tribunal give its sanction to such doctrines as these, not only without any aid from authority, but in opposition to all the light which is derivable from the reason and analogy of the doctrines of international jurisprudence, and of the jurisprudence of the United States themselves, in other cases, which ought to be governed by similar principles ?
The legitimate inference, from the analogy of the law as to breach of contraband, is, that any responsibility which Great Britain may bare been under as the neutral State from which the Florida was introduced into Mobile, came to its natural end when (having previously committed no act of war) she was once at home in that port, and became bona fide incorporated, within their own territory, into the naval force of the Con. federate States. The legitimate inference from the doctrine of Chief Justice Marshall, in the case of the Gran Para, is, that having been once
bona fide received into Mobile, as her proper port, and having been there manned, and dispatched from thence for her subsequent cruise, an effectual line of separation was drawn, for all legal and international purposes, between everything which had occurred before she entered into that port and everything which occurred afterward; and that (no hostile cruising against the United States having taken place during the interval between her leaving Liverpool and her entrance into Mobile) Great Britain had no just cause for afterward refusing to her the ordinary immunities and privileges of a duly-commissioned ship of war of a belligerent Power, and certainly was not under any obligation toward the United States to do so, even if a different rule would have been applicable to such a ship as the Alabama, which was not dispatched for her cruise from any Confederate port.
As between Great Britain and the Florida the case stood thus. Her acquittal at Nassau was conclusive, as a judgment in rem, so as to make it unjustifiable and impossible for any British authority afterward to revive agaiust her the causes of complaint which had occurred before that acquittal; and her subsequent reception of an armament at Green Cay, not being accompanied or preceded by the enlistment of any crew sufficient for hostilities, and not being followed by any warlike operations before her entrance into Mobile, though it was an infringement of British municipal law, was not such an offense by genera linternational law as to call for or justify war or reprisals against the Confederate States, nor such as to adhere to the ship through all subsequent circumstances. The responsibility of Great Britain to the United States, in respect of this ship, could not exceed the responsibility of the Confederate States, in respect of the same ship, to Great Britain.