II. THE CONTROVERSY SUBMITTED TO ARBITRATION.

The arbitrators al

acquainted

The counsel of the United States, in propounding to this august tribunal the cause in controversy between that nation and Great Britain, which its deliberations are to explore and its ready with the general naaward to determine, have no occasion to feel that the cele- ture of the facts. brated publicists who represent the friendly nations which take part in this great arbitration are less instructed, already, in the general character and history of the public transactions which are to form the ground-work of the argument, than the eminent public servants of the contending parties, who are joined with them in the composition of the tribunal.

If the publicity and prominence of these events, so recent in the memory, did not themselves preclude any such suggestion, the ample record supplied by the documents presented to the tribunal by the two governments has put the arbitration in full possession of all facts, and their evidence, which, in the judgment of any one, can be thought relevant to the discussion of the principal and collateral issues, to which the judgment of the tribunal will need to be applied. In pursuing, therefore, our immediate purpose of attracting the attention of the tribunal to the elements of the controversy arising between the two nations, upon the actual events which gave it birth, and as it has been shaped for the investigation and determination of the tribunal by the contending parties in the treaty by which its jurisdiction is created, we shall have occasion to consider no matters which are either obscure or disputable, and none which may not be drawn with the same confidence from the documents laid before the tribunal by Great Britain, as from those presented by the United States.

In suppressing au

armed insurrection exercised belligerent ed insurgents from

the United States

powers, and preventcarrying on maritime

resources.

I. When the great social and political interests developed by the institution of slavery, as it existed in the United States, carried the popular agitations beyond the bounds of obedience to the laws and loyalty to the Government of the United States, as set forth in Part II of the Case of Great Britain and Part II of the Case of the United States, it was not long before a great population occupying a large territory was drawn into an armed insurrection, and, as a next step, pushed into a military rebellion against the authority of the Government. The strength and menace of the attempted revolt soon grew to such proportions that the Government had recourse, in dealing with these rebellious hostilities urged against it, to its undoubted right of superadding to its peaceful authority of sovereignty the exercise of belligerent powers. It met the military array of the rebellion with the loyal forces of the nation, and used all the means for its suppression which the wealth, the courage, and the patriotism of the people placed at its disposal. Itself a great maritime power, both in naval strength and commercial prosperity, the resources of the rebellion included neither. The Government, by prompt, adequate, and successful exhibition of its naval strength, shut up the whole sea-board of the territory in rebellion by a blockade, and was proceeding to cut it off from all opportunity of es

tablishing foreign commerce, or maintaining maritime hostilities, from its own resources.

unquestioned. Other

the conflict.

II. The principles of the law of nations recognize this necessity which The right to do this the vigor and magnitude of rebel hostilities may impose. nations no parties to upon the government of a nation, and attribute to a resort to its belligerent powers, in such case, no consequences affecting the attitude toward each other of the parties to these hostilities. Other nations are, manifestly, no parties to the conflict, and cannot become such parties, unless by choice, which is intervention, or by the enlargement of the theater of hostilities, or their actual course, forcing upon their notice such questions as specifically arise for solution. The effect of intervention is unequivocal. If attempted in aid of the belligerent sovereign, but without his request, it is officious, and may be unwelcome. If in aid of the rebels, against the sovereign, it is an espousal of their cause, and an act of war belligerent sovereign. In such a case, no situation of neutral

Abstinence of intervention by another power is not "neutrality."

against the

ity arises.

It is a maintenance of previonsly existug relations.

But, if a nation abstains from intervention in the conflict between a sovereign nation and its rebels, it is inaccurate to treat this abstinence as neutrality. It is simply an unbroken maintenance of the international relations which subsisted between the two powers before the domestic peace of one of them suffered disturbance. It would shock the moral sense of civilization to speak of the United States as standing neutral between Great Britain and the Sepoy rebellion in India, or of Great Britain as standing neutral between the commune of Paris and the government of France.

Other powers have

to decide in such case

only whether they ercise of belligerent

powers by the sov

But, when the actual hostilities in which a government is engaged, in the suppression of a rebellion, encroach upon the established relations between it and friendly powers, the latter have presented to them the question whether they will, each for itself, acquiesce in the exercise of belligerent powers, as sought to be made effective against the rebels, at the cost of inteference with the peaceful rights of commerce and intercourse which subsisted before the nation was brought into this stress by its domestic rebellion.

Preign.

Non-acquiescence

- intervention.

But this question, under the rules governing the subject in the modern law of nations, can have but one answer. The nation which has superadded belligerent rights to those of sovereignty, is entitled so to do, and resistance by other nations to the fair conse quences of such rights upon their interests, is a violation of the law of nations, and an unjust intervention in the domestic conflict.

Questions arising

limits of the sover

In regard to the hostilities prosecuted against the sovereign by the rebel, if they should pass beyond the bounds of intestine beyond territorial war and obtrude themselves upon the notice of other sovereign should be decid- eign powers, the actual occurrences which raise the question ed as they arise. of their treatment by such powers may be trusted, also, to solve it. If the rebels should exhibit their strength by a blockade of any of the ports of the nation, or should keep the seas with cruisers, and assert the right of search, of capture, and of prize condemnation, against the ships or cargoes of another nation, the power thus affected will determine for itself how it will treat this new disturber of its peaceful rights and interests. It has no antecedent obligations of friendship, of treaty, or of recognition, even, which compel it to acquiesce, under the law of nations, in the legitimacy of this violence. It may pierce by force the rebel blockade which impedes its commerce, resist and resent the search and capture which threaten its maritime property, and reject

the asserted prize jurisdiction as working no change of title. And it inay do all this, without, in the least, taking part in the hostilities of the government against the rebels or espousing its cause, but simply in maintenance of its own rights and interests.

Undoubtedly, it is competent for other nations upon whose notice the hostilities of rebellion, revolution, or revolt may obtrude themselves, to yield such assent and submission to their exercise, to the disturbance of their own rights and to the disparagement of their own interests, as, under sentiments of justice, fair play, or humanity, they may find an adequate motive for.

Such course Se cures impartiality and when justified by

results, an equality parties, which known as neutrality

between contending

sembles what

re

is

This course tends to, and naturally results in, a tacit toleration of this violence as in the nature of belligerent power, because it is practiced in that sense and under that justification by those who exert it. Placed, then, between the contending parties in the attitude of obligatory submission to the belligerent right of the sovereign, and of voluntary tolerance of the belligerent practices of the rebels, other nations fall tween rightful belgradually into an equality and impartiality in dealing with the rightful belligerent power and the de facto belligerent force, which assimilates itself to the status which, between two rightful belligerent powers, is called, in the law of nations, neutrality.

when exercised be

ligerents.

States Supreme

This principle of public law, which we here insist upon, that is to say, the right of a sovereign engaged in the suppression of rebel- This principle ree lion, to superadd belligerent powers to its resources of gnized bythe United peaceful authority in dealing with the hostilities urged Court. against it, and to expect from other nations an acceptance of the situation, as toward the sovereign so engaged, with the same consequences to themselves as if the same belligerent powers were put forth in solemn war, had been definitely held by the Supreme Court of the United States in a celebrated judgment pronounced by Chief Justice Marshall in the case of Rose v. Himely, in the year 1808. The case arose upon the exercise of belligerent powers by France in attempting to reduce the revolt of the island of San Domingo, and is reported in 4 Cranch, (Sup. Ct. Rep., p. 241.) It was only necessary, therefore, for the inferior courts of the United States, and for the Supreme Court on final appeal, in establishing this principle of public law in its operation upon other nations, when the United States were exercising belligerent powers in suppression of their domestic rebellion, to follow the reason and authority which had been accepted, as a rule of the law of nations, in this early case. We refer to the judgment in the "prize causes, reported in 2 Black's Sup. Ct. Rep., p. 635.

Previous instances

III. The only notable instances, before the rebellion in the United States, perhaps the only instances, in which friendly nations have been placed by this obligatory recognition of belliger- in point. ent rights in the sovereign, and voluntary tolerance of belligerent powers in rebels, in an attitude assimilated to neutrality, have been where the conflict was of subject states seeking to recover their freedom, or between revolted colonies and the mother country, where independence in position, in boundaries, in interests, in population, and in destiny, already existing, in fact the only tie which remained to be severed was that of political sovereignty, and the severance of that tie was the only motive, object, operation, and expected result of the revolt. In such cases, the tendency on the part of other nations to adopt a practical neutrality is greatly prompted and facilitated by the political nature of the conflict, and the further consideration that the intervening seas, the common possession of all nations, are, necessarily,

Belligerent powers belong to the sovereign of right; to the

included in the theater of the war, and must become, more or less, the theater of actual hostilities. From such conflicts, every feature of domestic or intestine rebellion is necessarily absent. They are as dissimilar as are the throes of natural birth from the violence and horrors of mutilation. This difference asserts itself, at once, to the public judgment of other nations, and, scarcely later, to the contending parties, and thus, by the progress of the conflict, a habit of practical neutrality is easily est bed. But this habit imports nothing inconsistent with the principles we have insisted upon. The allowance by other nations of belligerent methods to the sovereign, is rebel, of sufferance. obligatory, systematic, and as his right. The allowance of them to the rebels is voluntary, pro re natâ always, and of sufferance. IV. In the first moments of the conflict, and when its confinement, as a domestic rebellion, within the territory of the United erent rights on the States, was successfully engaging the attention and the Britain was an inter- naval strength of the Government, Great Britain intervened, and assumed, by an act of sovereignty, exercised by the royal prerogative of the Crown as the representative of the nation in its foreign relations, to exalt the rebel hostilities to the same level with the belligerent rights of the United States in their suppression, and to place itself in the same attitude in reference to the conflict, as if it were a public war waged by two nations in their sovereign right, towards whom, under the law of nations, Great Britain was under equal obligations, independent of any choice, to respect their belligerent operations and maintain neutrality.

Conferring belliginsurgents by Great

vention.

'The Queen's proclamation.

The circumstances under which this celebrated proclamation of the Queen of Great Britain, of the judgment of that nation upon, and its purposes toward, the conflict pending within the territory of the United States between that Government and the rebels against its authority, was made, are set forth in Part II of the Case of the United States, pp. 43-65, and in Part II of the Case of Her Majesty's government, pp. 4-9. Our present purpose in referring to it is, merely, as being the first step taken by Great Britain in its relations to the conflict in the United States, which, as they showed themselves throughout its course, and have formed the subject of diplomatic correspondence between the two governments, and, finally, of the first eleven articles of the treaty of Washington, have given rise to the contentions between Great Britain and the United States which are submitted to this tribunal. It is only in its bearings upon these issues that we now comment upon its character and consequences, interpreted by the law of nations, as exhibited in the actual events that followed it.

anticipatory.

(a.) This proclamation, issued in London on the 13th of May, 1861, Was voluntary and was purely voluntary, and anticipated the occurrence of any practical occasion for dealing with any actual rebel hostilities, which had invaded, or threatened to invade, the peace or dignity of Great Britain, or the security of the maritime or other property or rights of its subjects.

Was not called for

tween the two gov ernments.

(b.) It was not required, in the least, in reference to the relations of Great Britain to the United States. They were fixed by by the relations be intercourse, by friendship, and by treaties, in all general aspects, and by the principles of the law of nations, applicable to the new situation, which we have already insisted upon. (c.) It had no justification in the public acts by which nations anHad no justifica nounce to their people and to the world their sovereign purpose to take part in, or to hold aloof from, a public war

waged between sovereign powers, and thus enable their subjects to conform their conduct to the purpose, thus proclaimed, of their government. The existence of a civil war within the territory of a nation, certainly does not call for a proclamation from other powers that they do not espouse the cause of either party to this domestic strife.

And changed the

tween Great Britain

(d.) The intervention of this public act of Great Britain produced certain important changes in the moral and in the legal relations in which its subjects, its commerce, its wealth, all legal relations, its manifold resources, if aroused to active interference in and the insurgents. aid of the rebellion, would stand, in the public opinion of the world, in the municipal jerisprudence of the realm, and in the doctrines of the law of nations.

Its effect upon the

war on the high seas.

So long as the rebellion in the United States remained unaccredited with belligerent rights, all maritime warfare in its name would have borne the legal character of piratical violence act of carrying on and robbery. It would have been justiciable as such everywhere, and punishable according to the jurisdiction to which it was made amenable. "With professed pirates there is no state of peace. They are the enemies of every country, and at all times; and, therefore, are universally subject to the extreme rights of war." (Ld. Stowell, in case of the Le Louis, 3 Dods. Adm. Rep., 244, 246.) "As every man, by the usage of our European nations, is justiciable in the place where the crime is committed, so are pirates, being reputed out of the protection of all laws and privileges, to be tried in what parts soever they are taken." "They are outlawed, as I may say, by the laws of all nations, that is, out of the protection of all princes and of all laws whatsoever. Everybody is commissioned, and is to be armed against them, as against rebels and traitors, to subdue and to root them out." "That which is called robbing upon the highway, the same being done upon the water is piracy." 'When this is done upon the sea, without a lawful commission of war or reprisals, it is downright piracy." (Sir Lionel Jenkins, as cited in 1 Phill. Int. Law, §§ 356, 358.) The interposition of the Queen's proclamation relieved from the terrible proscription, pursuit, and punishment thus denounced, all who should take the seas in aid of the rebellion against the United States, and exposed them, at the worst, to the municipal penalties of the foreign-enlistment act, or the fate of prisoners of war.

66

Its effect upon commercial con

tracts.

So, too, all commercial contracts, including the raising of money by loan, the building or fitting of vessels, the sale of arms or munitions or other supplies in aid of insurrection or domestic rebellion in a foreign state, are absolutely condemned as immoral in the law of England, and are proscribed by the courts of justice. (3 Phill. Int. Law, § 151; Forsyth Cons. Law, pp. 236-7.) The effect of the Queen's proclamation was to relieve all such contracts in aid of the resources of the rebellion from this proscription for immorality, which, otherwise, the law of England applied to them.

It was followed by tions in aid of the

systematic contribu insurgents.

V. This public act of the government of Great Britain, of such profound import in its bearing upon the conflict which the United States were addressing themselves to, opened to the minds of the British people entirely new relations, moral, political, and legal, with the pending hostilities, and was followed by an active, constant, and systematic contribution from their inexhaustible financial and commercial resources, in supply of the deficiencies of the rebels, and in reduction of the disparity of strength between them and their Government. The methods and the results, in their nature and magnitude, of this participation of the people of Great Britain in the