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They might have been remedied.
4. In the domestic institutions of Great Britain, no constitutional ob
stacles existed to prevent the enactment of such new act of
Parliament; for, to affirm the existence of such obstacles would be to deny to Great Britain the capacity and right to subsist in the family of nations as a co-equal sovereign State.
In fact, Great Britain has since then, in view of political complications on the continent of Europe, enacted a new act of Parliament, such as she ought before to have enacted, and that on the suggestion of the United States. 5. The British Government throughout argues these questions as
questions of neutrality. We deny that they are such ; we questions of neutral: deny, as hereinbefore stated, that Great Britain had right
to interpose herself as a professed neutral between her treaty ally, the United States, and the rebels of the United States. But we place ourselves, at present and in this relation, on the premises of the defensive argument of the British Government. And, standing on those technical premises, the counsel of the United States maintain that the neutrality of a government, as respects two belligerents, is a question of international, not municipal, resort. Its legal relations are involved in the question of the rights of peace and war.
Hence, to depend upon punitive municipal laws for the maintenance of international neutrality, is itself neglect of neutral duty, which duty demands preventive interposition on the part of the executive power of the State. 6. Great Britain, therefore, on the narrow and inadmissible premises
of her own defense, was legally responsible to the United palis responsible to States for the acts of the cruisers in question, whether as
for non-execution of her then existing act of Parliament, which was want of due diligence, or for undertaking to depend on that act, which not only involved want of due diligence, but implied refusal to perform the duties of a neutral. IX. The counsel of the United States will have occasion to refer to
some of these points in the sequel, when they come to
present, in full and affirmatively, their own views of the international obligations of Great Britain, and of her delinquency in the premises as respects her special obligations toward the United States.
Meanwhile, in vindication of the suggestions in this behalf now made by us, we submit to the consideration of the Tribunal appropriate extracts from the great work on “International Law," by Sir Robert Phillimore, of whom it is little to say that, apart from his eminence as a judge and as a statesman, he is facile princeps among the authorities of this class in Great Britain.
We cite as follows: There remains one question of the gravest importance, namely the responsibility of a state for the acts of her citizens, involving the duty of a neutral to prevent armaments and ships of war issuing from her shores for the service of a belligerent, though such armaments were furnished and ships were equipped, built, and sent without the knowledge and contrary to the orders of her government.
The question to what extent the state is responsible for the private acts of its subjects (civitasne deliquerit an cives ?) is one of the most important and interesting parts of the law which governs the relations of independent states.
It is a maxim of general law that, so far as foreign states are concerned, the will of the subject must be considered as bound up in that of his sovereign.
It is also a maxim that each state has a right to expect from another the observance of international obligations, without regard to what may be the municipal means which it possesses for enforcing this observance.
The act of an individual citizen, or of a small number of citizens, is not to be imputed without clear proof to the government of which they are subjects.
Sir R. Phillimore's authority cited.
A government may by knowledge and sufferance, as well as by direct permission, become responsible for the acts of subjects whom it does not prevent from the commission of an injury to a foreign state.
A government is presumed to be able to restrain the subject within its territory from contravening the obligations of neutrality to which the state is bound.
The government of the owner of the captured property may indeed call the neutral to account for permitting a fraudulent, unworthy, or unnecessary violation of its jurisdiction, and such permission may, according to the circumstances, convert the neutral into a belligerent.?.
In fact, the maxim adverted to in a former volume of this work is sound, viz, that a state is, prima facie, responsible for whatever is done within its jurisdiction; for it must be presumed to be capable of preventing or punishing offenses committed within its boundaries. A body-politic is therefore responsible for the acts of individuals, which are acts of actual or meditated hostility toward a nation with which the government of these subjects professes to maintain relations of friendship or neutrality.3
The relation of neutrality will be found to consist in two principal circumstances : 1. Entire abstinence from any participation in the war. 2. Impartiality of conduct toward both belligerents.
This abstinence and this impartiality must be combined in the character of a bona-fide neutral.
The neutral is justly and happily designated by the Latin expression in bello medius. It is of the essence of his character that he so retain this central position as to incline to neither belligerent. He has no jus bellicum himself; but he is entitled to the continuance of his ordinary jus pacis, with, as will presently be seen, certain curtailments and modifications, which flow from the altered state of the general relations of all countries in time of war. He must do nothing by which the condition of either belligerent may be bettered or strengthened, quo validior fiat.
It is for him perpetually to recollect, and practically to act upon, the maxim, “ Hostem esse qui faciat quod hosti placet.” 4
We do not overstate the point when we say that these texts, from such an authority, but recently published, (1871,) and in full view of the present controversy between the two governments, compose, not only a complete answer to the legal doctrines of the Case and Counter Case of Great Britain in this behalf, but affirmation of the larger prem ises of argument assumed by the United States.
1. Sir Robert Phillimore avers that, so far as foreign States are concerned, the will of the subject is bound up in that of his sovereign.
Now, among the persons who equipped, manned, and armed, the cruisers of the confederates in question, were liege subjects of Great Britain.
True it is that these liege subjects of Great Britain were hired to perform the acts in question by rebels of the United States, and the British Government strangely supposes that, because these rebels were citizens of the United States, therefore Great Britain was not responsible for their acts. The argument implies that foreigners in Great Britain are independent of the local jurisdiction. That, of course, is an error. But, if it were otherwise, the British Government would remain responsible for the acts of the Lairds, and all other British subjects, including Prioleau, an American converted into a British subject for the special object of violating the laws of Great Britain, and committing treason against the United States with impunity, under shelter of the flag of Great Britain.
2. Sir Robert Phillimore, at a blow, strikes to the earth the whole fabric of the British Case and Counter Case, in declaring that no government has a right to set up the deficiency of its own municipal law as excuse for the non-performance of international obligations toward a foreign State.
1 Phillimore's International Law, vol. i, preface to 2d ed, p. 21. 2 Pbillimore's International Law, vol. iii, p. 228. 3 Phillimore's International Law, vol. iii, p. 218. 4 Phillimore's International Law, vol. iii, pp. 201-2.
Legal theory of the United States specting questions at issue.
3. He lays down the rule that a government may by knowledge and sufferance, as well as by direct permission, become responsible for the acts of subjects, including commorant or transient aliens,) whom it does not prevent from committing injury to a foreign State. This proposition is not presented by Sir Robert Phillimore as based on any express treaty stipulation, but as being the doctrine of the law
of nations. As such it serves to construe the “due diligence” of the Treaty of Washington.
4. In expounding the proposition of the impartiality requisite in the character of a bona-fide neutral, he declares that such neutrality is vio. lated by any act which betters or strengthens one of the belligerents, or by any act which gratifies one of the belligerents.
It needs only to consider the analysis of the facts hereinafter presented, to see how much the British Government did to strengthen and to gratify the rebels of the United States.
5. Finally, he affirms that if a government, professing neutrality, permits a fraudulent, unworthy, or unnecessary violation of its jurisdiction, such permission may, according to the circumstances, convert the neutral into a belligerent.
That is the position of the counsel of the United States on this point; and it may be shown by signal examples in the previous history of Great Britain, that she herself has acted on this principle with respect to governments which, professing neutrality, did acts to strengthen or favor belligerent enemies of hers.
X. We now proceed to develop more distinctly the nature and basis of the legal theory of the United States in regard
to the questions at issue between the two governments. We commence by laying down a series of propositions, which are, as we conceive, axioms or postulates of the public law of Europe and America.
1. The right to engage in war, and so to become a bellig.
erent, is inherent in the quality of sovereignty." 2. We assume, also, that the right to maintain peace and to stand neutral whilst other sovereigns are belligerent, is inherent in the quality of sovereignty.
3. As the right of war and peace is inherent in sover
eignty, so is the right to give cause of war to another sovereign. 4. Such cause of war may consist in acts of professed warfare, as
the invasion of a foreign country in arms, the reduction of
its cities, the military devastation of its territory, the capture of its merchant-vessels, or the armed encounter of its ships of war.
5. Or such cause of war may consist in acts equivalent to professed warfare, as in affording aid to one belligerent against another, such belligerents being each sovereign; or by prematurely conceding the quality of belligerence or of independence to the rebels of another sovereign; or by aiding such rebels in fact, while pretending friendship for their sovereign. 6. True neutrality between belligerents consists in holding absolutely
aloof from the war in fact and in truth, as well as in pro
fession. To profess neutrality, and not to observe it, is disguised war. 7. War is by land or sea; and war by sea may consist in combats
between ships of war, or in the capture of merchant-vessels
and their cargoes. 1 Vattel, Droit des gens, éd. Pradier-Fodéré, tome ii, p. 337, (pote.) Cauchy, Droit mari time, tome i, p. 18; tome ii, p. 14. Martens, Droit des gens, éd. Vergé, tome ii, p. 198.
Right to make war.
Right to give cause for war.
War; what it is.
Sales of arms and
It is not material to this point that certain of the States of Europe have agreed to abstain from the issue of letters of marque. Even those powers continue to maintain the belligerent right to capture private merchant-vessels and their cargoes, by the agency of men-of-war. The United States have refused to enter into any such agreement, in the conception that it is only adapted to governments which see fit to incur the expense of maintaining a large military marine. The United States have been content to agree with other powers in according immunity from any capture to private property on the sea; but they insist, as they think rightfully, that, if private property is to remain subject to capture, it should be subject to capture by letter of marque as well as by the regular naval forces of the belligerent, letters of marque having the same relation to regular forces in war on the sea, as volunteer levies have to the regular forces in war on land.
8. The law of nations, as now practiced, permits the sale of arms by private merchants of the neutral sovereign, and their exportation and transportation for the use of the belligerent, contraba ud of war. subject to capture as contraband of war, although the tendency of modern opinion is to contend that such acts of sale are contrary to the true principles of neutrality.
Many of the modern regulations of different governments on the subject of neutrality, contained in the documents annexed to the American Counter Case, sustain this view. (See the dispatch of Lord Granville to the Prussian' minister of October 21, 1870, on the subject, defending the right of such sales.)
But it is admitted universally, in theory as well as in practice, that international law does not permit the equipment of men-of-war, or letters of marque, or their re-armament, or the enlistment of men for the military marine of the belligerent, in the ports of the neutral.
9. The pretended neutral, who, as a government, expedites vessels, or with culpable negligence permits the expedition of vessels from his ports, to cruise against one of the belligerents, becomes thereby belligerent in fact, and responsible as such to the injured belligerent.
10. In questions of international peace or war, and in all which regards foreign States, the will of the subject (or of commorant aliens) is merged in that of the local sovereign; that overeen for Violasovereign is responsible if he permits or knowingly suffers his subjects (or commorant aliens) to perpetrate injury to a foreign State; and, apart from other and direct proofs of permission, or knowledge and sufferance, the responsibility for any injury is fixed on such sovereign, if he depend on municipal means of enforcing the observance of international obligations, instead of acting preventively to that end in his prerogative capacity as sovereign.
11. It is not admissible for any sovereign to plead constitutional difficulties in such an emergency; to do which implies surrender of the rights, as well as abnegation of the power, of a abilities cannot sovereign, and confers on the injured power the right to charge of such viooccupy by force the territory of the incompetent power, and
Dispatch of armed vesgely.
tion of neutrality.
1 See Cauchy, Droit maritime, tome ii, pp. 374 and 404. Idem, Du respect de la propriété privée dans la guerre maritime, passim.
2 Bynkershoek, Questiones Juris Publici, 1. i, c. 22. The “Santissima Trinidad," Wheaton's Reports, vol. vii, p. 340. Phillimore, vol. iii, p. 321. Pistoye et Duverdy, Traité des prises maritimes, t. i, p. 394.
3 Documents with the message of President of the United States, December, 1870.
to impose upon his subjects that preservation of order which he professes constitutional inability to preserve.
" Culpâ caret, qui scit, sed prohibere non potest" is indeed one of the rules of private right; “but,” says Sir Robert Phillimore, “such an avowal, actual or constructive, on the part of the unintentionally injuring State, justifies the injured State in exercising, if it can, that jurisdiction by foreign force, which ought to be, but cannot be, exercised by domestic law.91
12. But no independent State exists, either in Europe or America, encumbered with constitutional incapacity in this respect.
Violations of neutrality are issues of war and peace. Whatever power in a state declares war, or makes peace, has jurisdiction of the issues of peace and war, including, of course, all violations of neutrality.
In point of fact, such authority is not a quality of despotic government only: it belongs equally to the most constitutional government, as appears, for instance, in the political institutions of constitutional republics, like Switzerland and the United States, and in constitutional monarchies, like Italy and Brazil.2
The counsel of the United States submit these propositions as unde. niable and elementary truths.
Yet the Case and Counter Case of the British Government assume and persistently argue that the sole instrument possessed by the British Government to enforce the performance of neutral obligations at the time of the occurrences in question, was a particular act of the British Parliament.
Every government in Europe or America, except Great Britain, asserts and exercises authority to prevent its liege subjects (and à fortiori commorant aliens) from doing acts which tend to involve it in a war with any other government.
But the British Government maintains that the sovereign State of Great Britain and Ireland, the imperial mistress of the Indies, the proudest in fame, the richest in resources, and including her transmarine possessions) the most populous of the great States of Europe, does not possess constitutional power to prevent mercenary law-breakers among her own subjects, or bands of desperate foreign rebels, commorant on her soil, from dragging her into acts of flagrant violation of neutrality, and thus affording, or tending to afford, just cause of war to other foreign States.
And such is the defense of Great Britain in answer to the reclamations of the United States.
13. It would be difficult to find any other example of a great State Alleged constitui- defending itself against charges of wrong by setting up the tional ability plea of its constitutional incompetency and incapacity to
discharge the most commonplace duties of a sovereign State. Great Britain is not in that condition of constitutional disability which her ministers pretend.
We find, on the most cursory observation of the constitution of Great Britain, that the declaration of war, the conclusion of peace, the conduct of foreign affairs—that all these things are in Great Britain elements of the prerogative of the Crown.
We cannot believe and do not concede that in all these greater prerogative powers there is not included the lesser one of preventing unauthorized private persons from engaging in private war against a friendly
Phillimore's International Law, vol. iii, p. 218. 2 See Appendix to the American Counter Case, cited or commented on hereafter.