that her real destination was openly talked of, I thought that a strong prima-facie case was made out for a judicial investigation, even although the evidence were insufficient to warrant her condemnation. And I thought it better to sanction an appeal to the law in favor of our neutrality, and in deference to the honest convictions of a gallant and experienced officer, than to allow the Oreto to leave our shores unchallenged and unobstructed on an expedition of pillage, piracy, and destruction. 9. These reflections were strengthened by others. I felt that if the Oreto were allowed to take in arms, ammunition, and a crew here, a similar impunity must be in future conceded to any other vessel belonging to either of the two belligerent states. The consequences of dealing out this even-handed justice would, in the existing state of popular feeling, be highly inconvenient and embarrassing. The boon obtained by a Confederate vessel would be claimed by a Federal vessel. If granted, it would be granted grudgingly and sulkily, and it was more likely that it would not be granted at all; hence would arise disputes, jealousies, and angry altercation. More than this, we have reason to believe that armed Federal vessels are lying at a very short distance from this port. The refusal to accord to northern vessels the same indulgence which has been accorded to those of the South, might, under these circumstances, provoke an affray between the ships of the two contending federations, and involve, not only this colony, but even the mother country in a very serious collision. * 12. Your Grace will see that it is easy to do very much in the way of equipping a vessel for hostile purposes, arming her, and enlisting a crew, without establishing a case of such strong testimony as would justify her condemnation by a court of competent jurisdiction; and although it is repugnant both to our policy and our sense of justice to strain the letter of the law, even on the side of a reasonable inference against the rigid rules of technical evidence, yet it is easy to see that a strict adherence to these rules may be suspected to be the result, and may produce the fruits, of a deliberate collusion with the enemies of a State on terms of amity with our own country.1 On the 30th of June, 1862, the evidence in regard to the Alabama being under consideration, Mr. Hamel, Solicitor of Customs, thus reported to the Commissioners of Customs: The officers ought not to move in the matter without the clearest evidence of a distinct violation of the Foreign Enlistment Act, nor unless at a moment of great eniergency, the terms of the Act being extremely technical, and the requirements as to intent being very rigid. It may be that the ship, having regard to her cargo as contraband of war, might be unquestionably liable to capture and condemnation, yet not liable to detention under the Foreign Enlistment Act, and the seizors might entail upon themselves very serious consequences.2 On the 11th of July, 1863, Consul Dudley's letter in regard to the Alabama being under consideration, Mr. Hamel, Solicitor, thus advised the customs: There is only one proper way of looking at this question. If the Collector of Customs were to detain the vessel in question, he would, no doubt, have to maintain the seizure by legal evidence in a court of law, and to pay damages and costs in case of failure. Upon carefully reading the statement, I find the greater part, if not all, is hearsay and inadmissible, and as to a part the witnesses are not forthcoming or even to be named. It is perfectly clear to my mind that there is nothing in it amounting to prima-facie proof sufficient to justify a seizure, much less to support it in a court of law, and the Consuls could not expect a Collector to take upon himself such a risk in opposition to rules and principles by which the Crown is governed in matters of this na ture.3 On the 24th of July, 1862, after the Florida had been seized at Nassau on account of the "due diligence" of Commander Hickley, ViceAdmiral Milne thus wrote to the Secretary of the Admiralty: I abstain from giving effect to my first intention, which was to express to Commander Hickley my approval of the zeal displayed by him on this occasion, in giving proof that our neutrality between the belligerents was a reality, and that when the occasion offered, Her Majesty's officers were quite ready to accept the responsibility of acting as in this case, wherein it appeared to be notorious, however incapable of legal proof it may turn out to be, that the vessel in question was fitted out in a British port as an armed Confederate cruiser. Should the Law Officers of the Crown be of opinion that the seizure was illegal; that the very grave suspicion of being intended for employment as a Southern cruiser; the fact of the vessel being fitted in every respect like one of Her Majesty's ships, and specially adapted for war; her armament ready to be put on board, with a crew of fifty men, and officers of the Confederate States ready to command her; should these facts be insufficient, in their opinion, to justify legally and technically the seizure, I yet trust their Lordships will see fit to exonerate Commander Hickley from all blame and consequent responsibility.' On August 23, 1862, the Home Government having thought it desirable to send some Custom House Officers from Liverpool to Nasau, who could there give evidence of the facts which had taken place at Liverpool in regard to the Florida, Collector Edwards thus closes a letter to the Commissioners of Customs: I am satisfied that she took no such [warlike] stores on board, and indeed it is stated, though I know not on what authority, that her armament was conveyed in another vessel to Nassau. The Board will, therefore, perceive that the evidence to be obtained from this port will all go to prove that she left Liverpool altogether unarmed, and that while here she had in no way violated the law.2 On the 11th of August, 1862, Governor Bayley, reporting the release of the Oreto, wrote to the Duke of Newcastle in part as follows: I do not think it likely that we shall ever obtain stronger proof against any vessel than was produced against the Oreto, of an intention to arm as a belligerent. Therefore we may assume that no prosecution of the same kind will be instituted, or, if any be instituted, that it will fail. The natural consequence will be that many vessels will leave England partly equipped as men-of-war or privateers, and intended to complete their equipment here. But the notoriety of this practice will induce Federal men-ofwar to frequent these waters, and virtually blockade the islands, in greater force than they have hitherto done; and when they are assembled in numbers, it will be vain to reckon on their observing any respect for territorial jurisdiction or international usage. I should neither be surprised to see Federal ships waiting off the harbor to seize these Confederate vessels, nor to see the Confederate ships engaging with Federal men-of-war within gunshot of the shore. The only means of preserving the peace and neutrality of these waters will be afforded by the presence of an adequate naval force.3 On the 23d of September, 1862, Governor Bayley reported in part as follows to the Duke of Newcastle: I have the honor to inform your Grace that the Oreto, after her liberation by the admiralty court, left this harbor three or four weeks ago; and that she is supposed to have since been finally transferred to the service of the Confederate States. If that is so, she is entirely out of my jurisdiction, and I could no more legally seize her were she to re-enter the port than I could seize any man-of-war belonging to the Government of the United States.4 5. Another marked trait of the actual administration by her Majesty's Government of the punitive features of the Foreign Enlistment Act, is their failure in the clearest cases to enforce a forfeiture. When we consider that the pretensions of efficiency in this act are confessedly put upon its terrors to evil-doers and the dissuasion from illegal projects to be thus accomplished, it is with the greatest surprise that we find credit claimed for the British Government for the losses and sacrifices which that Government sustained in its purchases of its own peace from its law-breaking subjects by payment of damages, by agreement, for the prosecution of the Alexandra, and by payment in full for the Laird rams, instead of persisting in their forfeiture. Not more intelligible is the claim of credit for the course of the Government in the case of the Pampero, where the forfeiture was admitted by the claimants, but was never brought to an actual sale, which would inflict the loss of its value upon the guilty projectors of its intended cruise. Certainly, the British Government accomplished the detention both of the Pampero and of the Laird rams, and the United States have never omitted to express their satisfaction at this real benefit which they received from the success of 3 Ibid., p. 75. 1 Brit. App., vol. i, p. 29. 4 Ibid. Her Majesty's Government in these instances. But, that the punitive terrors of this act should have lost the example of actual forfeiture to the Rebel resources, or to the guilty British ship-builders, of the great value invested in them, and that the British Government should have refunded the money, exhausted by the guilty enterprise of the Laird rams, in season for its new use by the Rebel agents and their accomplices in the same illegal service, can never seem to the United States a valuable contribution to the efficiency of the Foreign Enlistment Act as an instrument of punishment of these proscribed and dangerous proceedings. These various traits in the actual dealing of Her Majesty's Government with the Foreign Enlistment Act as an instrument, and as its only instrument, for maintaining its neutral obligations to the United States, became as well known, and were as clearly appreciated by all Her Majesty's subjects, and through all her imperial dominions, as if they had been announced by a Queen's Proclamation. No wonder that a learned judge of one of Her Majesty's superior courts declared that a whole fleet of ships of war could be driven through the statute!' That, as matter of fact, a whole fleet of ships of war was driven through that statute, is in proof before this Tribunal. British reliance upon the Foreign En of due diligence. Upon the whole proofs, then, and in their application to the cases of all the offending vessels, we confidently submit to the Arbilistment Act a failure trators, that the Foreign Enlistment Act, as construed and administered, was not an adequate instrumentality for, and its actual employment by the Government did not amount to, the use of "due diligence to prevent" the violations of the international obligations of Great Britain to the United States, which are now under review. We have never been able to appreciate the practical difficulties in preventing the emission of these hostile vessels from British ports. They were a long time in course of construction; they were long under the actual notice of the Government; its apparatus and resources for the fulfillment of the required duty were deliberated upon, explored, and understood. In truth, no practical difficulties did exist. But, whether or no this plain and easy execution of the practical duty itself could not become uncertain, difficult, and even impossible, by the adoption of theories and methods and agencies which, framed only diverso intuitu, naturally ended in failure, is a very difficult question. These constant failures were never from ignorance, from accident, or misfortune. They were not like the failures which may happen under any Government, where remoteness of ports, impediments of communication, obscurity, and insignificance of the projects and the vessels themselves, give opportunity for concealment and surprise. Such are the instances industriously collected in the British Case and Counter Case from the earliest years of the existence of the Government of the United States, and again in the period of the Spanish-American and PortugueseAmerican hostilities. The situations are very dissimilar; the conduct of the British Government here, and of that of the United States at those early periods, proceed upon very different systems; the causes of failure, as bearing upon responsibility therefor, are entirely distinct. It is quite agreeable to be relieved from puzzling over the complexities, and delicacies, and obstacles which seemed to embarrass Her Majesty's Government, under Earl Russell's management of this international duty, in reference to so simple a matter as arresting these great ships of war, the Florida, the Alabama, the Georgia, and the Shenandoah, by the frank and practical view of the duty and the task ex pressed by Earl Granville, in Parliament, in the debate on the Washington Treaty. Earl Granville said: On the one hand, nothing is so easy as to prevent a vessel of the Alabama class escaping from our shores, and the only loss to the country which would result from such a prevention, would be the small amount of profit which the individual constructing and equipping the vessel might derive from the transaction, which in almost every case is contrary to the Proclamation of the Queen. 1 Nor are we able to see how Her Majesty's Government can escape from the dilemma which, on its failure to stop the Florida and the Alabama, and its easy success in stopping the Laird rams, was proposed to it by Sir Hugh (now Lord) Cairns, in Parliament. What will you say to the American Minister now? Do not you suppose that the American Minister will come to you and say, "You told me last year that unless you had a case for seizure, and proof by proper evidence, you could not arrest a ship at all; that you could not detain her? Although you admitted that the facts I brought before you created very great suspicion, you said that you could not seize the Alabama, therefore you could not touch her. But look at what you did in September. For a whole month you detained these steam-rams in the Mersey, while, according to your own words, you were collecting evidence, and endeavoring to see whether your suspicions were well founded." 1 maintain that when the United States hold this language, either our Government must contend that what they did in September was unconstitutional, or they ought to have done the same with regard to the Alabama, and are liable. 2 * * The neglect to Enlistment Act a fail V. Manifestly, if the Foreign Enlistment Act of Great Britain was thus inadequate and unsuitable, as an efficient instrument in the hands of the Government for the fulfillment of its amend the Foreign international duty to the United States, it was a failure in ure of due diligence. the "use of due diligence to prevent" the injuries now complained of, not to obtain from Parliament a suitable and efficient act for the fulfillment of the duty. The demonstration of the existence of this obligation, and of its being early brought to the notice of Her Majesty's Government by the United States, and of the refusal of Great Britain to meet the obligation, is complete. We refer the Tribunal to a statement of the contemporary correspondence on this subject between the Governments, and a memorandum of the action of Great Britain in the matter, after the close of the Rebellion, contained in Note C of the Appendix to this Argument. Contrast between the course of Great Britain and the course of the United States in these re In strong contrast with this inaction of Great Britain, and with its justification by Her Majesty's Government, is the course taken by the Government of the United States in 1793, at the instance of Great Britain, in 1817, at the instance of Portugal, and again in 1838, to meet an exigency in the interest of Great Britain, for the maintenance of its sovereignty over the Canadian provinces. spects. On the 3d of December, 1793, President Washington, in his message to Congress, after stating the means that he had used to maintain a strict and impartial neutrality, said: It rests with the wisdom of Congress to correct, improve, or enforce this plan of procedure, and it will probably be found expedient to extend the legal code and jurisdiction of the courts of the United States to many cases which, though dependent upon principles already recognized, demand some further provisions. When individuals shall, within the United States, array themselves in hostility against any of the powers at war, or enter upon military expeditions or enterprises within the jurisdiction of the United States, or where penalties on violations of the law of nations may have been indistinctly marked or are inadequate, these offenses cannot receive too early and close an attention, and require prompt and decisive remedies. 1 Appendix to this Argument, Note B. 2 Am. App., vol. v, p. 493. On the 20th of December, 1816, the diplomatic representative of Portugal thus wrote to Mr. Monroe, then Secretary of State: What I solicit of him (the President) is the proposition to Congress of such provisions by law as will prevent such attempts for the future.1 Six days later, President Madison addressed a message to both Houses of Congress in part as follows: With a view to maintain more effectually the respect due to the laws, to the character, and to neutral and pacific relations of the United States, I recommend to the consideration of Congress the expediency of such further legislative provisions as may be requisite for detaining vessels actually equipped, or in course of equipment, with a warlike force, within the jurisdiction of the United States; or, as the case may be, for obtaining from the owners or commanders of such vessels adequate securities against the abuse of their armaments.2 At the same time, Mr. Monroe, Secretary of State, wrote to Mr. Forsyth, chairman of the Committee on Foreign Relations: I have now the honor to state that the provisions necessary to make the laws effectual against fitting out armed vessels in our ports for the purpose of hostile cruising, seem to be: 1st. That they should be laid under bond not to violate the treaties of the United States under the law of nations, in all cases where there is reason to suspect such a purpose on foot, including the cases of vessels taking on board arms and munitions of war, applicable to the equipment and armament of such vessels subsequent to their departure. 2d. To invest the Collectors, or other Revenue Officers, where there are no Collectors, with power to seize and detain vessels under circumstances indicating strong presumption of an intended breach of the law, the detention to take place until the order of the Executive, on a full representation of the facts had thereupon, can be obtained. The existing laws do not go to this extent. They do not authorize the demand of security in any shape, or any interposition on the part of the magistracyas a preventive, when there is reason to suspect an intention to commit the offense. They rest upon the general footing of punishing the offense merely where, if there be full evidence of the actual perpetration of the crime, the party is handed over, after trial, to the penalty denounced.3 The circumstances under which the temporary Neutrality Act of 1838 was passed, are fully stated in the Case of the United States, (p. 133,) and the act itself can be found in the documents presented therewith.* Not less in contrast with the indifference and obstructions with which Her Majesty's Government met the earnest applications of the Government of the United States, in the stress in which it was placed, for an improvement of the Foreign Enlistment Act, are the solicitude and attention bestowed by Great Britain upon the amendment of this act after the rebellion was suppressed. The report of the Royal Commission, appointed to consider the subject, upon the defects of the old law and the necessary amendments to give it due vigor, leaves nothing to be said in condemnation of the persistency with which Great Britain clung to it during the whole period of the Rebellion. The promptitude of Parliament in enacting the new statute upon the breaking out of the recent war between Prussia and France, has already been referred to, and is exhibited in the extracts from the debate on its passage, set forth in Note B of the Appendix to this Argument. It is unnecessary to argue that the passage of the present Foreign Enlistment Act in May, 1861, following upon the Queen's Proclamation of neutrality, and its reasonable enforcement, would have precluded the scandals deplored by the British Government and the injuries suffered by the United States from the emission of the Alabama and her consorts from British ports. The text of the act carries its own argument. Am. App., vol. iii, p. 541. 3 Ibid., p. 542. 2 Ibid., p. 542. 4 Ibid., vol. iv, p. 62. |