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Belligerent powers belong to the sovereign of right; to the
Conferring bellig. erent right on the
The Queen's proc. lamation.
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 recessarily 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 judg. ment 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 established. 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 butterance 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
States, was successfully engaging the attention and the Britain was an inter naval strength of the Government, Great Britain inter
vened, 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 pations 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. 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.
(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.
(6.) It was not required, in the least, in reference to the relations of was not called for Great Britain to the United States.
They were fixed by wehe etimos gux: intercourse, by friendship, and by treaties, in all general as
pects, 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
And changed the
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.
(a.) 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 been relationer 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 jurisprudence of the realm, and in the doctrines of the law of nations.
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 punisbable 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." 66 That which is called robbing upon the highway, the same being done upon the water is piracy." 6. 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 panishment 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.
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.
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 systematic contribuie minds of the British people entirely new relations, moral, insurgents. 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
Its effect upon commercial con tracts.
It was followed by
The United States suffered
domestic conflict which raged in the United States, are presented to the notice of the tribunal in the Case of the United States, are attempted to be qualified or justified in the Case and Counter Case of Her Britannic Majesty, and are displayed in the volumes of evidence submitted in support of the opposite contentions of the parties before the arbitrators. They were the subjects of contemporaneous correspondence between the two governments, in detail, at every stage of their occurrence, and, since the suppression of the rebellion, the adverse views of the govern. ments concerning them, by the fortunate result of a long, a difficult, and an honorable and amicable course of negotiation, have been put in the way to a final settlement by the judgment and award of this tribunal. It only remains for us, under this division of the argument, to direct the attention of the arbitrators to the situation in which the governments of Great Britain and the United States stood toward each other, and to the subjects of difference between them, at the close of the domestic hostilities in connection with which they had arisen, and to the disposition of those differences sought to be accomplished by the treaty of Washington and the friendly deliberations of the arbitrators. VI. The United States, notwithstanding the incompetency of the re
sources of the rebellion in these regards, and the adequate in. power and success of the Government in suppressing any
such efforts, suffered during the conflict, in a very great degree, the injuries which can only be inflicted by hostile commerce and maritime warfare. In the three forms which make up the struggles of maritime war, foreign trade in contraband, violation of blockade, and prize capture, the United States were seriously vexed throughout their conflict, although they were engaged with an adversary which had no commerce, could build, equip, arm, or man no ships, kept open no ports, could furnish no convoy, offer or meet no naval battle, bring no prize infra præsidia or under judicial condemnation. By these maritime hostilities, their immense naval force was kept constantly occupied for four years, and their commercial marine was plundered, burnt, and driven from the seas. Their carrying trade in the commerce of other nations was swept away from them, and, in their own commerce, placed at a disadvantage in rates of insurance and freight. In a word, without a maritime enemy or a naval war, the United States suffered the stress, the injuries, and the losses which only naval belligerency could inflict. VII. In looking for the agencies and operations which had wrought
these disasters, the public history of the hostilities, and not from aici and ingliti less the definite and comprehensive proofs laid before this British jurisdiction. tribunal, exhibit them as worked out by schemes and en. terprises of British origin, maintained by British resources, and placed at the service of the rebellion, under whatever motive of cupidity, of sympathy with that cause, or of enmity to the United States. Systems of British contraband trade, and organized merchant fleets for the breach of the blockade established by the United States; the British possessions, neighboring to the theater of the domestic war, made depots of hostile trade and covers for naval war
ships of war, British-built, armed and supplied, swift and vigilant for the. destruction of peaceful commerce, swift and vigilant in elusion of armed pursuit—these were the agencies and operations which the rebel hostili. ties wrought into the service of their maritime war, and these the au
thors of the wide-reaching disasters which the maritime property of the United States was subjected to.
VIII. A further examination shows, upon definite and unequivocal evidence, that these powerful and effective contributions of British aid to the pressing occasions of the rebel war, did izdy aystematie, and not spring from the spontaneous and casual, disconnected, and fluctuating motives or impulses of mercantile adventure or cupidity, nor were their immense and prolonged operations sustained and carried forward by any such vague and irresponsible agencies. They were induced, stimulated, and directed by official and authentic efforts, in the name and by the authority of the rebel administration, represented by established agencies and permanent agents within the territory of Great Britain. It was an occupation of that territory, and an application of the manifold means which the boundless resources of its people supplied, by agents of the different departments of the rebel administration, there to conduct the preparations of its hostilities against the United States for which its original internal resources did not furnish the means, and which the belligerent power of the United States could prevent from being introduced or carried on within it. It was this system which is justly described, in the Case of the United States, and exhibited in the proofs, as equivalent, within the sphere of its operations, to using Great Britain as “the arsenal, the navy-yard, and the treasury of the insurgent confederates."
IX. If the actual method and agencies of these disasters were thus manifest, the magnitude and permanence of the injuries suffered from them by the United States are, also, indispu- juries inflicted on the table. These injuries were specific, in the shape of private losses and public expenditures, capable of somewhat accurate ascertainment and computation. They were also general, (1,) in the burdens upon the commerce of the United States produced by this naval warfare, and of which the enhanced premiums of insurance furnish some measure, and (2,) in the reduction of the mercantile marine of the United States, and the tansfer of its trade to the British flag, which the public records of its tonnage will disclose. Besides injuries in these forms, the influence of these maritime hostilities upon the conduct, severity, length, and burdens of the war forced upon the Government of the United States, in maintenance of its authority and in suppression of the rebellion, constitute another head of injuries suffered by the United States from the prosecution of these maritime hostilities. In the aggregate, then, these injuries make up the body of the grievance which the United States have suffered from the incorporation into the rebel strength and war of the aforesaid agencies and operations, contributed thereto from the interests, the sympathies, and the resources of the people of Great Britain,
X. Upon a survey of the whole field of the international relations wbich had been maintained toward it by other friendly powers during the severe trials through which it had passed, the Governmentof the United States found ņo occasion to occupy itself with any grievance or to lament any disasters which it had suffered from foreign aid to the strength and persistence of the rebellion from any other source than from the action and agency of the people of Great Britain. If other great powers had followed, at greater or less intervals, the precedent of the governmental act of Great Britain in its proclamation, and issued formal declarations in the same sense, these governments had, essentially, kept the action of their subjects within the obligations of abstinence from the contest in obedience
No other nation instrumental in inflicting them.
They form the
to the requirements of the law of nations. The United States, therefore, had no duty to themselves and their citizens, and none to their position among the nations of the world, and in maintenance of justice and friendship in the future, which called upon them to assert any rights or redress any wrongs growing out of the conduct toward them of any other power than Great Britain. XI. The course of the public correspondence between the govern
ments of Great Britain and the United States, whether conject of this arbitra: temporaneous with or subsequent to the events to which it
related, disclosed so wide a difference in the estimates which the two governments placed upon the rights and duties of satisfaction and indemnity for the injuries the United States had suffered, and for which they were demanding redress from Great Britain, as to produce a situation of the greatest gravity and difficulty. Although it may be confidently hoped that the more general acceptance of the obligations of justice between nations has made it more and more difficult for two such governments to find themselves in the necessity of appealing to the resort by which, as Vattel expresses it, "a nation prosecutes its right by force," yet unappeased complaints of the magnitude and severity of those preferred by the United States against Great Britain do not easily pass into oblivion without some form of adjudication. Whether or not the resources of international justice shall ever furnish to nations a compulsory tribunal of reason that will supersede what Lord Bacon calls “the highest trials of right, when princes and states that acknowledge no superior upon earth shall put themselves upon the justice of God for the deciding of their controversies by such success as it shall please Him to give on either side," it has proved to be within the compass of the public reason and justice of the two powerful, enlightened, and kindred nations, parties to this great controversy, to subtract it from the adjudication of “war, the terrible litigation of states.” By amicable negotiations which have produced the treaty of Washington, the high contracting parties have reduced their differences to a formal and definite expression and description of the claims for satisfaction and indemnity by Great Britain which the United States insist upon, and that nation contests, and have submitted to the award of this august tribunal the final determination of the same.
The Case of the United States sets forth the text of those articles of The provisions of the treaty of Washington which provide for the constituthe treatypet iwashe tion of the tribunal of arbitration, and ascertain and state
the subject matter for its jurisdiction, the measure of its powers, and the form and effect of its authorized' award. In the full light of the negotiations which led to and attended this consummation, and which are laid before the tribunal, in the Cases and proofs of the contending parties, the arbitrators will find no difficulty in affixing to the terms of the treaty their true and certain meaning.
We desire, by a few observations, to attract the attention of the arbitrators to some principal features of these provisions of the treaty.
I. The situation giving occasion to and intended to be met by these Description of the provisions of the treaty is described as “ differences that
have arisen between the Government of the United States and the government of Her Britannic Majesty, and still exist, growing out of the acts committed by the several vessels which have given rise to the claims generically known as the “Alabama claims.?” The only other recital bearing upon this subject, before the operative provisions of the treaty for the disposition of these differences, is to the effect that - Her Britannic Majesty has authorized her high commissioners and
ington respecting arbitration.