Those notices were more extensive and precise last year. The government undertook to prevent the equipment of war vessels for the belligerents in her ports. A copy of the Official Gazette, March 20, 1866, containing those notices, is hereto annexed. Articles 84 and 85 of the penal code may be used as coercive measures to prevent violations of neutrality. For example, they might serve to prosecute those attempting to equip or sell vessels of war in our port for the benefit of belligerents. The vessels could then be seized on evidence, and their departure be thus prevented.1 Mr. Van Zuylen's language is inaccurate. He obviously intended to express that the Netherlands have no laws known by the name of laws of neutrality, or codified as such. He seems not to have thought that mere penal provisions deserved the name, although he refers to penal provisions, which, as he says, are ancillary, in that sense, to the exercise of the executive power of the government, this being the proper, and indeed the only effectual, agency for the protection of its sovereignty against invasive or evasive acts on the part of belligerents. The efficiency with which executive power is applied to such subjects in the Netherlands is fully manifested by the pertinent circulars of that government.2 (i) We find similar laws existing in Russia; in Prussia, which had occasion once to apply those laws to the acts of British Russia and Prus agents in Prussia; in Denmark, and in Sweden.3 sia, Denmark and Sweden. (j) The documents, which exhibit the legislation and political action of Denmark in this relation, are particularly interesting, because they so clearly show how the penal or punitive laws were merely and simply supplemental to the preventive action of the Government. 6. On review, therefore, of the legislation and political action of Great Britain, as compared with that of all other Governments, we arrive at the following conclusions: Comparative review. (a) The institutions of Italy, Brazil, Switzerland, France, Spain, Portugal, the Netherlands, and all other Governments of Europe indeed, except Great Britain, expressly assume, as do the institutions of the United States, that volunteer and unauthorized military and naval expeditions, undertaken in a neutral country, are to be restrained, because tending to involve such country in war with the country aggrieved. Infringements of the law are punished mainly for that reason, including the protection of the national sovereignty. (b) Hence, in all those countries, except Great Britain, the punitive law is a secondary fact; the primary fact being the preventive action of the Government. (c) The United States perfectly understood this, the true relation of things, and while they indicted persons and arrested ships, they did not, when occasion required action, rely on such merely punitive, or at most auxiliary, means, but called into play the armed forces of land and sea to support the Executive in summary acts of prevention by force for the maintenance not only of the sovereignty but of the neutrality of the Government. (d) Neither Lord Russell, in his correspondence with Mr. Adams, nor the framers of the British Case, appear to have had any clear conception of these higher relations of the subject, although distinctly and explicitly stated in the best works of international law of Great Britain herself. (e) Great Britain alone pretends that punitive law is the measure of neutral duties: all other Governments, including the United States, pre 1 Documents annexed to the American Case, vol. iv, p. 155. 2 Documents annexed to the American Counter Case, Supplement, p. 56. vent peril to the national peace through means of prerogative force, lodged, by implied or express constitutional law, in the hands of the Executive. VIII. We are now prepared to judge whether, in the incidents of the present controversy, the conduct of other governments was, Conclusions. as the British government pretends in answer to the reclamations of the United States, the same as that of Great Britain, and whether Great Britain did all which they did in discharge of international obligations toward the United States. It is obvious to see that, upon her premises of political action, it was impossible that Great Britain should discharge those duties as they were discharged by other governments. In point of fact she did not. (a) Other governments not only prevented the armament of cruisers, but also forbade their construction. For example, France, the Netherlands, Denmark. σ (b) Other governments imposed just limits on asylum, and punished its abuse. For example, Brazil, France, Spain, Portugal. (c) No other government allowed armed cruisers to sail from her ports to prey on the commerce of the United States. She alone furnished the Alabamas and the Floridas, which, by the capture of our merchantmen, gave to the United States cause of national reclamation. (d) In no other government was the wrong committed of allowing itself, as Lord Russell unequivocally admits, to be subjected to the shame of being the established seat of the military and naval supplies of the Confederates. The history of the United States as a neutral a part of the IX. Both in the Case and Counter Case of the British government there is elaborate arraignment of the government of the United States, in respect to the manner in which, at various British pleadings. periods of their public history, they have discharged their neutral obligations toward other governments. Its relevancy denied. We dispute the right of the British government to discuss any such matter before this Tribunal. Great Britain is here accused, not only of violation of neutrality, but of permitting or suffering the active complicity of her subjects with the rebels of the United States. It is no answer to this charge to say that, at some time past, the American Government was, or may have been, delinquent toward some other government. Such an answer is not compatible with reason or justice, but is contrary to both. Nothing is, or can be, on trial before this tribunal, but the conduct of Great Britain. That,. and that alone, is submitted by the treaty of Washington. To summon the United States to enter into discussion of its acts toward other governments, which is in effect now done by the British Government, is to call on the Tribunal to pass judgment on imputed acts of the United States which are wholly outside of the questions to be submitted by the two governments, according to the tenor of the Treaty. The British Case and Counter Case, it is true, introduce these matters professedly as bearing on the inquiry of what is due diligence, by examination of what has been the conduct of the United States under circumstances of alleged similarity to those involved in the present controversy. But these matters are not the less discussed by the British Government in the manner and spirit of counter accusation. And, even as to the specific relation in which the subject is professedly introduced by the British Government, it is not the less utterly irrelevant, valueless as argument, and incapable in any respect of instructing the conscience. of this Tribunal. The two governments have submitted the question of the conduct of Great Britain at a precise period of time and in a specific relation, that of the late domestic rebellion in the United States. That is the definite subject to be investigated and judged by the Tribunal, upon the proofs presented by the two governments. As incidental to this particular. subject, is the Tribunal to take up and examine twenty other controversies, each wholly independent of that and of one another, and to determine seriatim each one of them, in order to know how to determine the particular controversy submitted by the Treaty? That would be preposterous as reason, and impossible to be done, as act. The counsel of the United States must refuse to consent to have drawn in judgment here the past or present relations of their government to France, Spain, Portugal, Mexico, or even Great Britain herself. Nevertheless, being thus challenged by the British Government, we presume to say that the history of the foreign relations of the United States, in this respect, if it have any pertinency to the present controversy, has such pertinency to the effect of confirming the theories of public law on which the present reclamations of the United States here stand, as maintained in this Argument. The Tribunal cannot fail to observe, in the first place, that while Great Britain constantly asserts that her duties of neutrality are defined by an act of Parliament, and that her government has no means or power to maintain neutrality, except by the agencies of an act of Parliament, yet during her entire national life, for a period of nearly eight hundred years, she did not possess any such act of Parliament, and, of course, during all that period she neither could nor did discharge her duties of neutrality towards other governments. It would be an unwelcome task to the counsel of the United States, as they well might, to proceed to imitate the British case, and recount all the occasions, even in more modern times, in which it might be charged that by acts of aggressive intervention, by sea and by land, Great Britain has manifested her slight consideration of the proper rights of the other states of Europe, more especially in the class of maritime questions, and of domestic disturbances existing in other states. Are not the works of jurisprudence of all nations full of inculpations of these acts on the part of Great Britain? Has not every maritime state of Europe, one after the other, been forced in self-defense, in these relations, into war with Great Britain ?1 And yet it would be much more pertinent to the present issue thus to scrutinize the political conduct of Great Britain with reference to other governments, than it is to scrutinize that of the United States. Now, then, while, until the year 1819, Great Britain had no municipal law for the preservation of neutrality, and while she steadily disavows the possibility of using any other means, the United States, on the contrary, almost at the very moment of entering into the family of nations, asserted, and have continued to assert, the right and the duty of every government to act as such politically, and by exercise of supreme executive force to watch over, guard, and maintain its neutrality between contending belligerents. While England professes, as her view of public law, that constitutional governments must of necessity allow themselves to drift continually into war by reason of having no other means to keep peace except an act of Parliament, and that confessedly insufficient, the United States, on the other hand, have as constantly maintained, and do now maintain, that it is the duty of all governments, in I See Canchy, ubi supra; Lucchesi Palli, Droit Public et Maritime, p. 55, et seq.; Cussy, Phases, etc., préf. cluding especially constitutional governments, to discharge their neutral duties in obedience to rules of right, independent of and superior to all possible acts of Parliament. In consonance with which doctrine it is that every President of the United States, from President Washington to President Grant, inclusive, has never failed to apply due diligence, voluntarily, sponte sua,-in the vigilant discharge of his own official duty, not in mere complaisance to foreign suggestion,-by him. self or by other officers of the Government, to prevent all unlawful enterprises of recruitment or equipment in the United States. In proof of these assertions, we proceed briefly to touch on such incidents of the past history of the United States as are (however illegitimately) brought into question here by the British Case and Counter Case. (a) In regard to our first controversy with Great Britain in this Neutrality toward respect, in the time of President Washington, we need do Great Britain during nothing more than cite testimony of Englishmen themton's administration. selves, to the honor and good faith of the American Government. President In the first place, Lord Tenterden, in the documents appended to the British Case, admits the good faith and the efficiency of President Washington. Secondly, Mr. Canning, certainly one of the greatest ministers of Great Britain, on occasion of opposing the repeal of the British foreignenlistment act, said: "If I wished," Mr. Canning said, "for a guide in a system of neutrality, I should take that laid down by America in the days of the presidency of Washington and the secretaryship of Jefferson. In 1793 complaints were made to the American Government that French ships were allowed to fit out and arm in American ports for the purpose of attacking British vessels, in direct opposition to the laws of neutrality. Immediately upon this representation, the American Government held that such a fitting out was contrary to the laws of neutrality; and orders were issued prohibiting the arming of any French vessels in American ports. At New York a French vessel, fitting out, was seized, delivered over to the tribunal, and condemned. Upon that occasion the American Government held that such fitting out of French ships in American ports, for the purpose of cruising against English vessels, was incompatible with the sovereignty of the United States, and tended to interrupt the peace and good understanding which subsisted between that country and Great Britain.1 "Here, sir, (he added,) I contend is the principle upon which we ought to act." 2 Finally, in the midst of the occurrences now in controversy between the two governments, Sir Roundell Palmer spoke as follows in the House of Commons: "As long ago as 1793, we emphatically insisted that the American Government should not supply France, with whom we were then engaged in hostilities, with vessels of war. We required them to detain those vessels, and Washington did detain them, before any foreign-enlistment act was passed. Washington not only detained the vessels at our instance, but he proposed and carried in Congress the American foreignenlistment act, as his enemies then said, at our dictation. Precisely the same attacks which are now directed against Her Majesty's Government in this House were then directed against Washington in Congress. There were members of Congress who said that he was truckling to England and allowing the English embassador to dictate to 1 1 Appendix to British Case, vol. iii, Supplement, p. 22. 2 Hansard's Parliamentary Debates, N. S., vol. viii, p. 1019. Canning's Speeches, vol. v, p. 50. him; they lamented the humiliation of their country and declared that the stars and stripes had been dragged in the dust. But that great man despised the imputation of cowardice; he was strong enough not to fear to be thought afraid, and in spite of clamor-for there will always be violent and excitable men in all popular assemblies,Washington pursued the course which he knew to be just, and at the same time best calculated for the interest and welfare of his own country. He passed the foreignenlistment act, and a treaty was subsequently entered into, stipulating, among other things, for the restoration of prizes captured by vessels that were fitted out in American ports." The counsel of the United States are for themselves content with their own convictions on this point, but they conceive that the testimony of Mr. Canning, Sir Roundell Palmer, and Lord Tenterden may fitly serve to satisfy this high Tribunal. (b). The British Case impliedly blames the United States Expedition of Mion account of the expedition of Miranda. randa. Francisco Miranda, born in the Spanish-American province of Venezuela, had served in the army of France under commission of the National Convention, but was suspended from command, and banished for misconduct at the battle of Nerwinde. He became besotted with the idea of being the predestined regenerator of his native country, without other capacity or resources than his own extravagant self-conceit. He by some means made himself acceptable to Mr. Pitt, who encouraged him in the idea of getting up an expedition for the invasion of Venezuela.3 Political considerations standing in the way of his doing this in England, he went to the United States, thinking to find there a convenient point of departure. But President Adams steadily repelled his advances, and rendered abortive all his attempts to get up the proposed expedition. Some years afterward, still favored by Great Britain," he again appeared in the United States with the same purposes. 4 He had much of the plausibility, and all the impudence, of that class of cosmopolitan exiles and adventurers. By the exhibition of deceptive letters written by himself to President Jefferson and Secretary Madisonletters, on their face, of mere courtesy-he contrived to impose on credulous persons and obtain aid in New York; for in this case, as in all like cases, fraud and falsehood lie at the bottom of such unlawful enterprises. Thus he was enabled to organize an expedition and get to sea without knowledge of the Government.6 On the way to Caracas he stopped at the English islands of Barbadoes and Trinidad, where he was treated with the utmost consideration by the British officers, civil and military, and where he received from Admiral Cochran, in command of the British West Indies, a written contract of alliance and copartnership under date of June 9, 1806, by the tenor of which Great Britain adopted the expedition of Miranda, and furnished it with additional supplies and vessels." The expedition landed at Vela de Coro, but failed of success by reason of the deplorable incapacity of Miranda; and he, dishonored by the manifest proofs of the falsehood by which he had imposed upon the 1 Hansard's Debates, vol. clxxiii, p. 955. 2 See History of Don Francisco de Miranda's attempt to effect a revolution in South America. 3 See Antepara's Documents, Historical and Explanatory, p. 13. 4 The Works of John Adams, by Charles Francis Adams, vol. i, pages 523, 531; vol. viii, pages 569, 581, 600; vol. x, p. 134. 5 Dodsley Annual Register for 1807. 6 History of Miranda's Expedition, as above, passim. 7 See this extraordinary contract in Antepara's Documents, Historical and Explanatory, &c., p. 213. |