Well might that eminent publicist, Phillimore, immediately after the passage of this act, "rejoice that the English Government has, by the statute of this year, strengthened the hands of the Executive, and given greater force and prominence to the maxim that, with respect to the external relations of the State, the will of the subject is bound up in that of his Government."1 We confidently submit that, in refusing to amend the Foreign Enlistment Act in aid of the fulfillment of the duty prescribed by the Three Rules of the Treaty, Great Britain failed "to use due diligence to prevent" the injuries for which the United States demand redress from the justice of this Tribunal. Failure in due dili cape of the cruisers. VI. We pass now to an examination of the question of "the use of due diligence to prevent" the violation of its international duty to the United States, as exhibited in the course pur- gence after the es sued toward the offending vessels by Great Britain, after their first escape from British ports, under the circumstances and consequences of inculpation for such escape which have already been considered. Except for the actual violence and depredations committed by the escaped cruisers after their emission from British ports, the injuries to the maritime property of the United States and the enormous connected losses to the national wealth would not have been inflicted. In every view, therefore, the subsequent career of the cruisers becomes of the highest importance to the practical determination by this tribunal of the matters in judgment before it. when again in Brit due diligence. 1. It is indisputable, that if, in respect to any one of the vessels incriminated, the escape of that vessel from the home port In not detaining should have been shown by Great Britain, to the satisfaction offending cruisers of the Tribunal, to have taken place in spite of "the use of ish ports, a want of due diligence to prevent" it, the principles of the Three Rules and of international law not inconsistent therewith will require that the same inquisition must be applied to any subsequent escape from another port of the British Empire, home or colonial, where the Government had an opportunity to lay hands upon and arrest her. Thus, suppose, for a moment, that the British Government was not in fault in respect of the first emission of the Florida from the port of Liverpool, her subsequent history at Nassau must then be examined. If her openly allowed departure from Nassau, "on an expedition of pillage, piracy, and destruction," (to quote Governor Bayley again,) was not in spite of the use of due diligence "to prevent the departure from its jurisdiction" of a vessel which had "been specially adapted in whole or in part within such jurisdiction to warlike use," such departure is, in itself, a failure by Great Britain to fulfill the duties set forth in the Three Rules of the Treaty, and must be so pronounced by the Tribunal. As the Florida, until after she left Nassau, remained in the same plight of a British vessel as when she left Liverpool, and did not receive a (socalled) "commission," or change her flag until afterward, there is no opportunity for cavil upon this point. 2. If, on the other hand, the original escape of any of the offending vessels from the home port shall inculpate Great Britain under the Rules of the Treaty, it is obvious that the original fault and accountability of Great Britain in the supposed case only enhance the obligation which, we have seen, requires "the use of due diligence to prevent" the subsequent departure from its jurisdiction of a vessel whose original escape from the home port has not been imputed to a default in such diligence. 1 Phill. Int. Law, (ed. 1871,) p. 28, preface. This obligation not missioning a cruiser. 3. This obligation, whether in the alternative of the original escape of the offending vessel being for want of, or in spite of, the "use of due diligence to prevent" it, must endure until it has been fully and successfully met by the arrest and detention of the offending vessel, and her "expedition of pillage, piracy, and destruction" brought to a close. We have already considered whether this indisputable general proposition needs to be qualified by the impediment insisted determined by com- upon to its continued application, arising from the (socalled) "commission" as a public ship of a belligerent not recognized as a nation or a sovereign. We have shown that, in regard to public ships of recognized nations and sovereigns, this public character by comity withdraws them only from the jurisdiction of courts and process, and leaves them amenable to the political and executive power. We have shown that, in the case of public ships having no recognized state or sovereign behind them, the political and executive power deals with them, in its own discretion, with strong hand, in administration of every duty and every right pertaining to itself or owed to another nation. The grounds upon which we put our inculpation of Great Britain for dealing with these Rebel cruisers, as it did, after their commission as public ships, do not involve any contention as to whether or not judicial control should thereafter have been asserted over them. This domestic question of comity to the Rebel cruisers on their "expeditions of pillage, piracy, and destruction," may be at the discretion of a Government. But the pretensions that the international duty by which Great Britain was "bound" to the United States to use due diligence to prevent these offending vessels of guilty origin from departing from its ports when it was master of the opportunity so to do, was cut short and overmastered by the Rebel "commission," upon the reasons already given, we entirely deny. Not excluding from British ports was a diligence. 4. It is conspicuous upon the proofs before the Tribunal that it was quite in the power of Her Majesty's Government, by arrestescaped cruisers ing these offending vessels at their first, or even later, visits want of due to British ports after their successful fraud upon the neutral obligations of Great Britain in their original "escape," to have intercepted these "expeditions of pillage, piracy, and destruction," and at once repaired the misfortune or the failure of duty which had made such "escape" possible, and struck a fatal blow at the systematic project and preparation of such expeditions from the home ports of Great Britain. There was no adequate motive for, or benefit from, these guilty enterprises if the first escape were to leave the vessels homeless and shelterless upon the ocean, with no asylum in British ports except such as mere humanity offers against stress of storm and danger of shipwreck. Such asylum, upon the very motive on which it is yielded, upon the very plea upon which it is begged, the sentiment of humanity, would have exacted the abandonment of the career of violence, meditated or commenced, and a submission to the outraged authority of Great Britain, whose peace and dignity were compromised by the original escape from its ports. It is a notable fact that not one of these offending vessels ever returned to a home port of Great Britain, except the Georgia, to be dismantled and sold, and the Shenandoah to be surrendered to the Government of the United States. The Florida once, and the Alabama once, sought the commercial recruitment which the hospitality of the ports of France conceded them, on the plea of relâche forcée. They had not violated the neutrality of France in their original outfit, and had no resent 1 Supra, pp. ments or restraints to fear in her ports. But why prefer France to England? Was it on motives of market and convenience? The supplies for these cruisers while in the French ports were sent to them from England. Every interest, every inclination, every motive would have carried them to England, had not some overwhelming reason deterred them from that resort. They had violated her neutrality; they had brought scandal and reproach upon the administration of her laws. They were not lacking in courage or effrontery; but that the government of Great Britain would tolerate their presence in her ports to replenish their resources, and "their expeditions of pillage, piracy, and plunder," was impossible to be conceived, and they avoided the danger. But the wide power of that nation "whose morning drum-beat, commencing with the sun and keeping company with the revolving hours, surrounds the whole earth with one continuous strain of the martial airs of England," does not outrun the obligations of public justice or of international duty. What it would shock the moral sense of Englishmen to deny must have been the action of Her Majesty's Government at home, should have been, but was not, their action throughout their colonial possessions. On the 26th day of April, 1864, in the debate in the House of Lords on the dispatch of the Duke of Newcastle to Governor Wodehouse, instructing him that he should have detained the Tuscaloosa, Earl Russell, defending this instruction, said in part as follows: It must be recollected that all these applications of principles of international law to the contest between the Federal and so-styled Confederate States, have to be made under very exceptional circumstances. It has been usual for a Power carrying on war upon the seas to possess ports of its own in which vessels are built, equipped, and fitted, and from which they issue, to which they bring their prizes, and in which those prizes, when brought before a court, are either condemned or restored. But it so happens that in this conflict the Confederate States have no ports, except those of the Mersey and the Clyde, from which they fit out ships to cruise against the Federals. 1 In the same debate, the Attorney General, Sir Roundell Palmer, also defending the dispatch, in addition to the words we have quoted supra, said: By the mere fact of coming into neutral territory, in spite of the prohibition, a foreign Power places itself in the position of an outlaw against the rights of nations, and it is a mere question of practical discretion, judgment, and moderation, what is the proper way of vindicating the offended dignity of the neutral sovereign.2 In February, 1864, Mr. Vernon Harcourt thus wrote in a letter to the London Times: I think that to deny to the Florida and to the Alabama access to our ports would be the legitimate and dignified manner of expressing our disapproval of the fraud which has been practiced upon our neutrality. If we abstain from taking such a course, I fear we may justly lie under the imputation of having done less to vindicate our good faith than the American Government consented at our instance, upon former occasions, to do.3 On the 13th of May, 1864, in a debate relative to the course that should be adopted in regard to the Georgia which had come into Liverpool, the Attorney General said: I have not the least doubt that we have a right, if we thought fit, to exclude from our own ports any particular ship or class of ships, if we consider that they have violated our neutrality.4 In 1867, Her Majesty's Commissioners having been empowered to report what changes ought to be made in the Foreign Enlistment Act for 1 Am. App., vol. v, p. 535. 3 Ibid., vol. iv, p. 204. 2 Ibid., p. 570. the purpose of giving it increased efficiency and bringing it into full conformity with international obligations, all joined in this report: In time of war no vessel employed in a military or naval service of any belligerent which shall have been built, equipped, fitted out, armed, or dispatched contrary to the enactment, should be admitted into any port of Her Majesty's dominions.1 That these are not extreme or disputed propositions, is evident from the concurrence therein of Lord Cairns, Baron Bramwell, Sir Roundell Palmer, and Mr. Gregory, as well as Dr. Phillimore, Mr. Vernon Harcourt, Mr. Thomas Baring, and Mr. Forster. On the 4th of August, 1870, in the House of Commons, the attorneygeneral, Sir R. P. Collier, having reference to the omission, from the Foreign Enlistment Act, of a clause carrying out the report above cited, said: He had to explain that, although the Royal Commissioners made a recommendation to the effect of this clause, they did not intend that it should be embodied in an act of Parliament, but that it should be carried out under the Queen's regulations. The Governor of a Colony would, under this clause, have to determine whether a ship entering his port was illegally fitted out or not, and this was enough to show the object the commissioners had in view could not be carried out by an Act of Parliament. It was intended instead to advise Colonial Governors of the escape of any illegally fitted vessels.2 Thus it appears that Her Majesty's Government fully recognizes the power of the Royal Prerogative to exclude from British ports any vessel or class of vessels which has violated its neutrality. Brazil, when the occasion for the exercise of this right was presented, considered it equally a duty, and issued and executed her order, for the exclusion of the Alabama and Shenandoah from any port of the Empire.3 Probably, the suppression of the maritime hostilities, from which the United States have suffered, would have followed from the milder measure of proscription from British ports, enforced by arrest and detention, if the prohibition was transgressed. The lead thus taken by Great Britain would naturally, if not necessarily, have been followed by the other powers whose possessions afforded a casual and infrequent resort for the offending vessels. Following, at greater or less interval, as they had, the recognition of belligerency declared by Great Britain, these powers would have admitted the common duty of neutrals, in the peculiar situation of maritime hostilities presented, to accept the denunciation by Great Britain of the escaped vessels as outlaws and not belligerents, and denied them further hospitality. tions agents respecting these cruisers 5. Certainly, in the absence of such proscription, it would seem neThe representa cessary that some representations should have been made to insurgent by Her Majesty's Government to the persons with whom it so long delayed and was in the habit of communicating as, in some sort, accredo feeble as to ited by the Rebel organization for such purpose, concerndue diligence. ing the flagrant violations of neutrality in which Great Britian was involved, by the system of operations of the Rebel agents heretofore brought to the notice of the Tribunal.* amount to want of The Arbitrators will search the British Case and Counter Case, and the body of their appended proofs, in vain, for the least intimation of such representations. But we are not left to inference based upon this state of the evidence. In the American Appendix will be found certain correspondence between Earl Russell and Mr. Mason, (then permanently resident in London,) which exhibits an entire unconcern in 2 See Appendix to this Argument, Note B. 4 Am. App., vol. vii, p. 113. 1 Am. App., vol. iv, p. 82. 3 Supra, p. 17, sec. viii. the mind of Her Majesty's Foreign Secretary at the time the escape of the Alabama was a fresh incident at home, and the dealing with the escaped Florida by the colonial authorities at Nassau was under the notice of the Home Administration. During the very period of these two matters of the Florida and the Alabama, which Earl Russell subsequently stigmatized in Parliament as "a scandal and a reproach" to England, a correspondence between the Foreign Secretary and Mr. Mason was in progress, in which the most friendly tone and topics prevailed. This correspondence begins with July 17, and terminated with a letter of Earl Russell, August 2, 1862. This, it will be noticed, runs through the time of the deliberations of the British Government as to the arrest of the Alabama, and beyond the consummation of her successful evasion from Liverpool. But not a word on the subject is found in the correspondence.1 Again, at the end of the year 1864, another correspondence between the same writers took place, and that nothing of expostulation or resentment, or exaction of redress for these continuing outrages, finds place in it, may be well inferred from the manner in which Mr. Slidell feels justified in commenting to Mr. Benjamin, of the Confederate Cabinet, upon Earl Russell's concluding letter: His Lordship voluntarily went out of his way to say the most disagreeable thing, possible to the Northern Government; his reference to the Treaty of 1783 will, I think, be especially distasteful to them, placed in connection with his twice-repeated recognition of the separate existence of the North and South, as never merged in a single nationality. I should be much surprised if this letter does not call forth a universal howl against his Lordship from the Northern press.2 That Her Majesty's Government could promptly, and without enfeebling courtesy, discharge this duty of remonstrance to a belligerent against supposed or intended violations of its neutral obligations, is demonstrated by the correspondence of Earl Russell with Mr. Adams in regard to some matters which seemed to Her Majesty's Government to require explanations from the United States. On the 30th of November, 1863, Earl Russell thus wrote to Mr. Adams in part as follows: I have the honor to call your attention to the following statements, which have come to the knowledge of Her Majesty's Government, respecting the shipment of British subjects on board the United States ship of war Kearsarge, when in the port of Queenstown, for service in the Navy of the United States. I need not point out to you the importance of these statements, as proving a deliberate violation of the laws of this country, within one of its harbors, by commissioned officers of the Navy of the United States. Before I say more, I wait to learn what you can allege in extenuation of such culpable conduct on the part of the United States officers of the Navy, and the United States Consul at Queenstown.3 On the 31st of March, 1864, Earl Russell wrote to Mr. Adams as follows: I have the honor to bring to your notice an account, taken from a newspaper, of what passed at the trial before Mr. Justice Keogh of the British subjects indicted for having taken service in the United States ship Kearsarge, at Queenstown, in violation of the provisions of the Foreign Enlistment Act; and, with reference to the correspondence which has passed between us, I have the honor to request that you will inform me whether you have any explanations to offer on the subject.* On the 9th of April, 1864, Earl Russell, writing to Mr. Adams, said: I transmit to you herewith extracts from a deposition of one Daniel O'Connell, by 1 Am. App., vol. i, pp. 416-426. 3 Ibid., vol. ii, p. 421. Am. App., vol. i, p. 619. 4 Ibid., p. 442. |