STATEMENT ON INTERNATIONAL RIGHTS AND DUTIES; ON THE POWERS WHICH WERE POSSESSED BY HER BRITANNIC MAJESTY'S GOVERNMENT OF PREVENTING UNLAWFUL EQUIPMENTS, AND THE MANNER AND CIRCUMSTANCES IN AND UNDER WHICH THESE POWERS WERE EXERCISED DURING THE WAR.

PART 111. Intro

With a view to enable the tribunal to form a just appreciation of the circumstances under which certain vessels were productory statement. cured from ports in Great Britain by the government of the Confederate States, it will be proper to state, in the first place, some general propositions, applicable to the subject, which are believed by Her Britannic Majesty's government to be in accordance with interna tional law and practice; secondly, to explain the means of prevention which were at the command of Her Majesty's government; and, thirdly, to describe in some detail the manner in which those means of preven tion were exercised during the war.

GENERAL PROPOSITIONS.

Her Britannic Majesty's government believes the following proposi tions to be in accordance with the principles of international law and the practice of nations:

1. A neutral government is bound to exercise due diligence, to the intent that no place within its territory be made use of by either bellig erent as a base or point of departure for a military or naval expedition, or for hostilities by land or sea.

2. A neutral government is not, by force of the above-mentioned obligation or otherwise, bound to prevent or restrain the sale within its territory, to a belligerent, of articles contraband of war, or the manufacture within its territory of such articles to the order of a belligerent, or the delivery thereof within its territory to a belligerent purchaser, or the exportation of such articles from its-territory for sale to, or for the use of, a belligerent.

3. Nor is a neutral government bound, by force of the above-mentioned obligation or otherwise, to prohibit or prevent vessels of war in the service of a belligerent from entering or remaining in its ports or waters, or from purchasing provisions, coal, or other supplies, or undergoing repairs therein; provided that the same facilities be accorded to both belligerents indifferently; and provided also that such vessels be not permitted to augment their military force, or increase or renew their supplies of arms or munitions of war, or of men, within the neutral territory

4. The unlawful equipment, or augmentation of force, of a belligerent vessel witbin neutral waters being an offense against the neutral power, it is the right of the neutral power to release prizes taken by means or

by the aid of such equipment or augmentation of force, if found within its jurisdiction.

5. It has been the practice of maritime powers, when at war, to treat as contraband of war vessels specially adapted for warlike use and found at sea under a neutral flag in course of transportation to a place possessed or occupied by a belligerent. Such vessels have been held liable to capture and condemnation as contraband, on proof in each case that the destination of the ship was an enemy's port, and provided there were reasonable grounds for believing that she was intended to be sold or delivered to or for the use of the enemy.

6. Public ships of war in the service of a belligerent, entering the ports or waters of a neutral are, by the practice of nations, exempt from the jurisdiction of a neutral power. To withdraw or refuse to recognize this exemption without previous notice, or without such notice to exert, or attempt to exert, jurisdiction over any such vessel, would be a violation of a common understanding, which all nations are bound by good faith to respect.

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7. A vessel becomes a public ship of war by being armed and commissioned, that is to say, formally invested by order or under the authority of a government with the character of a ship employed in its naval service and forming part of its marine for purposes of war. There are no general rules which prescribe how, where, or in what form the commissioning must be effected, so as to impress on the vessel the character of a public ship of war. What is essential is that the appointment of a designated officer to the charge and command of a ship likewise designated be made by the government, or the proper department of it, or under authority delegated by the government or department, and that the charge and command of the ship be taken by the officer so appointed. Customarily a ship is held to be commissioned when a commissioned officer appointed to her has gone on board of her and hoisted the colors appropriated to the military marine. A neutral power may indeed refuse to admit into its own ports or waters as a public ship of war any belligerent vessel not commissioned in a specified form or manner, as it may impose on such admission any other conditions at its pleasure, provided the refusal be applied to both belligerents indifferently; but this should not be done without reasonable notice.

8. The act of commissioning, by which a ship is invested with the character of a public ship of war, is, for that purpose, valid and conclusive, notwithstanding that the ship may have been at the time registered in a foreign country as a ship of that country, or may have been liable to process at the suit of a private claimant, or to arrest or forfeiture under the law of a foreign state. The commissioning power, by commissioning her, incorporates her into its naval force; and by the same act which withdraws her from the operation of ordinary legal process assumes the responsibility for all existing claims which could otherwise have been enforced against her.

9. Due diligence on the part of a sovereign government signifies that measure of care which the government is under an international obligation to use for a given purpose. This measure, where it has not been defined by international usage or agreement, is to be deduced from the nature of the obligation itself, and from those considerations of justice, equity, and general expediency on which the law of nations is founded. 10. The measure of care which a government is bound to use in order to prevent within its jurisdiction certain classes of acts, from which harm might accrue to foreign states or their citizens, must

always (unless specifically determined by usage or agreement) be dependent, more or less, on the surrounding circumstances, and cannot be defined with precision in the form of a general rule. It would commonly, however, be unreasonable and impracticable to require that it should exceed that which the governments of civilized states are accustomed to employ in matters concerning their own security or that of their own citizens. That even this measure of obligation has not been recognized in practice might be clearly shown by reference to the laws in force in the principal countries of Europe and America. It would be enough, indeed, to refer to the history of some of these countries during recent periods, for proof that great and enlightened states have not deemed themselves bound to exert the same vigilance and employ the same meaus of repression, when enterprises prepared within their own territories endangered the safety of neighboring states, as they would probably have exerted and employed had their own security been similarly imperiled.

11. In every country where the executive is subject to the laws, foreign states have a right to expect―

(a.) That the laws be such as in the exercise of ordinary foresight might reasonably be deemed adequate for the repression of all acts which the government is under an international obligation to repress; (b.) That, so far as may be necessary for this purpose, the laws be enforced and the legal powers of the government exercised.

But foreign states have not a right to require, where such laws exist, that the executive should overstep them in a particular case, in order to prevent harm to foreign states or their citizens; nor that, in order to prevent harm to foreign states or their citizens, the executive should act against the persons or property of individuals, unless upon evidence which would justify it in so acting if the interests to be protected were its own or those of its own citizens. Nor are the laws or the mode of judicial or administrative procedure which exist in one country to be applied as constituting a rule or standard of comparison for any other country. Thus, the rules which exist in Great Britain as to the admission and probative force of various kinds of testimony, the evidence necessary to be produced in certain cases, the questions proper to be

tried by a jury, the functions of the executive in regard to the [25] prevention and prosecution of offenses, may differ, as the organi

zation of the magistrature and the distribution of authority among central and local officers also differ, from those which exist in France, Germany, or Italy. Each of these countries has a right, as well in matters which concern foreign states or their citizens, as in other matters, to administer and enforce its own laws in its own forum, and according to its own rules and modes of procedure; and foreign states cannot justly complain of this, unless it can be clearly shown that these rules and modes of procedure conflict in any particular with natural justice, or, in other words, with principles commonly acknowledged by civilized nations to be of universal obligation.

In connection with the foregoing propositions are to be taken the three rules stated in Article VI of the treaty, and accepted by Her Britannic Majesty's government in the manner expressed in that article.

NEUTRALITY LAWS-LAW OF THE UNITED STATES.

The case of a vessel which is dispatched from a neutral port to or for the use of a belligerent, after having been prepared within the neutral territory for warlike use, is one which may be regarded from different

points of view, and may fall within the operation of different principles. The ship herself may be regarded merely as an implement or engine of war, sold or manufactured to order within neutral territory, and afterward transported therefrom, and the whole transaction as falling within the scope of the principles applicable to the sale, manufacture, shipment, and transportation of articles contraband of war; or, on the other hand, the preparation and dispatch of the ship may be viewed as being really and in effect the preparation and commencement of a hostile expedition. The circumstances of each case can alone determine from which of these two points of view it may most fitly be regarded, and to which class the transaction ought to be assigned. But the difficulty of drawing a clear, precise, and intelligible line between these two classes of transactions has always been considerable in theory, and still greater in practice; and it was enhanced to the utmost during the civil war by the ingenuity and audacity of American citizens, who were engaged in carrying on hostilities against the Government of the United States, and were desirous of availing themselves for this purpose of the ship-building and manufacturing resources of Great Britain. This will sufficiently appear from the narrative which follows; and it will be seen also how serious and incessant were the trouble and embarrassment which these enterprises occasioned to Her Majesty's government. It is by the many dif ficulties encountered and by the experience acquired during the war that Her Majesty's government was finally led to the conclusion that it was expedient not only to enlarge the scope of its municipal law in relation to this subject beyond what has hitherto been deemed necessary in any other country, but, further, to accept for itself, and propose to other powers, rules of international obligation somewhat more stringent and comprehensive than are to be found in earlier expositions of the law of nations.

The acts of which the Government of the United States is understood to complain belong to a class which have not commonly been made an object of prohibitory legislation. In few countries, or in none, according to the information received by Her Britannic Majesty's government, did the law directly prohibit such acts, or make any definite provision for preventing them, at the time when this war began, except in the United States and Great Britain. Laws are not made till the necessity for them has arisen. In the United States the necessity arose at a very early period in the history of that commonwealth, and has again repeatedly presented itself at various times. The first maritime war in which the United States held the position of a neutral power was that which commenced in 1793, when the French Republic declared war against Great Britain and against the United Provinces of the Netherlands. Within three months after the declaration of war several privateers had been procured, equipped, armed, and commissioned in ports of the United States to cruise under the French flag against the commerce of Great Britain, with which the United States were at peace. They were not only fitted out in American ports, but were owned, officered, and manned, in large proportion, by American citizens. The measures adopted by the Executive of the United States to restrain these enterprises proved inadequate; they were renewed from time to time, and the persons who took part in them were not punished; and on the 5th June, 1794, an act of Congress entitled "An act in addition to the act for the punishment of certain crimes against the United States" was passed for amending the law in this respect. This act was a temporary one, to continue in force for two years, and thenceforth until the end of the then next session of Congress. Its provisions were re-enacted on the 2d March, 1797,

and were made perpetual by an act of Congress passed on the 24th April, 1800. It was not completely effectual. From the published [26] reports of cases decided in the American *courts it appears that depredations on British commerce were again and again committed by French privateers, subsequently fitted out and armed for war in ports of the United States.

În March, 1806, an expedition against Spain (with which the United States were at peace) was fitted out in New York by one Miranda, a native of Peru, who had served in the French republican army under Dumouriez. This expedition, which consisted of an armed vessel, carrying 18 guns, and two schooners, sailed for its destination. Orders were issued for arresting it, but they were too late. Persons who participated in it were afterward prosecuted, but were acquitted by the jury before whom they were tried.

In the year 1810 war broke out between Spain and her American colonies, and in 1816 Portugal engaged in the war on the side of Spain. The United States remained neutral. It appears from the correspondence which subsequently passed between the Government of the United States and the governments of Spain and Portugal, as well as from the published reports of cases decided in the courts of the United States, that a considerable number of privateers were, at various times during the war, but chiefly in the earlier part of it, fitted out, manned, and armed in ports of the United States for the purpose of cruising against the commerce of Spain and against that of Portugal, and that large numbers of Spanish and Portuguese ships were captured by these privateers. In the dispatches of the Portuguese minister at Washington not fewer than twenty-six of such privateers are mentioned as having been fitted out and armed at a single American port; and fifty ships belonging to Portuguese citizens are stated to have been captured between the years 1816 and 1819, inclusive. It was further stated that the privateers were, for the most part, not only fitted out, but owned and commanded, by citizens of the United States. The facts alleged do not appear to have been disputed by the Government of the United States. In answer to the first representation of the Portuguese minister, in which he indicated ten ships which had armed, or were believed to be then arming, at Baltimore, Mr. Monroe, then Secretary of State, wrote as follows:

The United States Secretary of State to the Portuguese minister at Washington.

WASHINGTON, December 27, 1816. SIR: I have had the honor to receive your letter of the 20th instant, complaining of certain equipments of armed vessels from Baltimore, and of instructions given to the commander of one of those vessels to attack conditionally the vessels of your sovereign, the King of Portugal and Brazil. You are aware that these vessels are equipped without any authority from this Government, and on pretexts very different from those which you assign. You are also aware that the existing laws do not authorize the President to interfere in such cases, and it is your object to obtain such amendment of them as may be sufficient for the purpose.

I have communicated your letter to the President, and have now the honor to transmit to you a copy of a message which he has addressed to Congress on the subject, with a view to obtain such an extension by law of the executive power as will be necessary to preserve the strict neutrality of the United States in the existing war between Spain and the Spanish colonies, and effectually to guard against the danger in regard to the vessels of your sovereign which you have anticipated.

As soon as a law may be passed on this subject, I shall have the honor of communicating it to you, and I avail myself of this opportunity of assuring you of the great interest which the President takes in cultivating the most kindly relations with your sovereign, his subjects, and dominions.

I have, &c.,

(Signed)

Chevalier J. CORREA DE SERRA.

JAMES MONROE.