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foreign State, and thus committing Great Britain to causes of public war on the part of such foreign State.
If the exercise of such power by the Crown involves derogation of the rights of private persons which ministers fear to commit, they should obtain a proper act of Parliament, either for antecedent general authorization or for subsequent protection, all which is within the scope of the theoretic omnipotence of Parliament. The British ministers do not scruple to suspend the privileges of the writ of habeas corpus, whether with or without previous parliamentary authorization, and whether in the United Kingdom or in the Colonies, on occasion of petty acts of rebellion or revolt, that is, the case of domestic war : à fortiori they should and may arrest and prevent subjects or commorant foreigners engaged in the commission of acts of foreign war to the prejudice of another government.
Is it possible to deny or to doubt that British ministers might as well do this as the ministers of Switzerland, Italy, Brazil, and the United States, in like circumstances ?
Has the Queen of the United Kingdom of Great Britain and Ireland less executive power than the President of the United States ? And if she have less, could not the deficient power be granted to her by act of Parliament, just as readily as similar executive power, in this relation, has been granted to the President of the United States by their Congress!
14. But there is no such deficiency of power in the British ministers; their own conduct in pertinent cases proves conclusively that they have the power, and can exercise it, when they choose, without affording occasion of any serious doubt or denial of the constitutionality of their acts.
Be it remembered that the excuse of the British Government, for omitting to detain the Alabama and other confederate cruisers, was the alleged want of power to act outside of the foreign-enlistment act.
And yet, subsequently to the escape of the Alabama from the port of Liverpool, on occasion of the construction in the ports of Great Britain of certain other vessels for the confederates, commonly spoken of as the Laird rams, the British Government seized them upon its own responsibility in virtue of the prerogative power of the Crown, and so prevented their departure to make war against the United States.
And what the ministers did on this occasion was fully justified in the House of Commons by Sir Roundell Palmer, the then attorney-general of Great Britain, in the following words:
I do not hesitate to say boldly, and in the face of the country, that the government on their own responsibility detained them. They were prosecuting inquiries which, though imperfect, left on the mind of the government strong reasons for believing that the result might prove to be that these ships were intended for an illegal purpose, and that if they left the country the law would be violated and a great injury done to a friendly power. The government did not seize the ships; they did not by any act take possession or interfere with them, but on their own responsibility they gave notice to the parties interested that the law should not be evaded until the pending inquiry should be brought to a conclusion, when the government would know whether the inquiry would result in affording conclusive grounds for seizing the ships or not. If any other great crime or mischief were in progress, could it be doubted that the government would be justified in taking steps to prevent the evasion from justice of the person whose conduct was under investigation until the completion of the inquiry ? In a criminal case we know that it is an ordinary course to go before a magistrate, and some information is taken of a most imperfect character to justify the accused's committal to prison for trial, the prisoner being remanded from time to time. And that course cannot be adopted in cases of seizing of vessels of this description; the law gives no means for that. And therefore it is that the government, on their own responsibility, must act and have acted in determining that what had taken place with
regard to the Alabama should not take place with respect to these ships, that they should not slip out of the Mersey and join the navy of the belligerent powers, contrary to our law, if that were the intention, until the inquiry in progress should be so far brought to a conclusion as to enable the government to judge whether the ships were really intended for innocent purposes or not.
The government were determined that the inquiries which they were making should be brought to a legitimate conclusion, that it might be seen whether those inquiries resulted in evidence or not of the vessels being intended for the confederates, and that in the mean time they would not permit the ends of justice to be baffled by the sudden removal of the ships from the river.
It is impossible that the case of the government can now be brought before the house; but the government have acted under a serious sense of their duty to themselves, to Her Majesty, to our allies in the United States, and to every other nation with whom Her Majesty is in friendship and alliance, and with whom questions of this kind may be liable hereafter to arise. Under a sense of that duty they have felt that this is not a question to be treated lightly, or as one of no great importance. If an evasion of the statute law of the land was really about to take place, it was the duty of the government to use all possible means to ascertain the truth, and to prevent the escape of vessels of this kind to be used against a friendly power. It was their duty to make inquiries, and to act if there was a good ground for seizure, taking care only to adopt that procedure which was justified by the circumstances.'
And well might Sir Hugh Cairns say, on that occasion, to the British minister: “Either our Government must contend that what they did in September (that is, in the matter of the Laird rams) was unconstitutional, or they ought to have done the same with regard to the Alabama, and are liable."
But in truth these extraordinary professions of impotency, on the part of the British Government, are but additional proofs of the negligent spirit of that government in permitting or not preventing the expedition of the Alabama and other vessels, and the perilous consequences of which they had come to appreciate and to shrink from at the time of the arrest of the Laird rams.
15. There is another pertinent example in the modern history of Great Britain of the power of her ministers to arrest such expeditions when they have the desire.
We allude to the celebrated affair of the so-called Terceira expedition.
During the pendency of the civil war in Portugal on occasion of the disputed succession between Donna Maria and Don Miguel, certain Portuguese refugees, partisans of Donna Maria, sailed from England in transports ostensibly destined for Brazil, but, as was suspected, intended for Terceira, in the Azores. It was not pretended that the transports were fitted for war, and the Portuguese on board were unarmed. Nevertheless, the British ministers conceived that the expedition was one in violation of the neutrality of Great Britain.
Whereupon, they dispatched a naval force to pursue these vessels, . and to prevent the persons on board from landing, either at Terceira, or at any one of the Western Islands; which was done, and the Portuguese were compelled to leave the waters of the Azores, and to take refuge in France.
It is to be noted that this act of force by Great Britain in the maintenance of her neutrality was done, not in the ports of Great Britain, or in her waters, but on the high seas, or rather within the waters of the Western Islands, and in the actual jurisdiction of a sovereign to whom the Portuguese in question professed and owed allegiance; for Terceira then acknowledged the power of Donna Maria.
No pretense existed here of action in subordination to the forms of the foreign-enlistment act, or any other act of Parliament. What was done, was done simply in virtue of the prerogative power of the Crown.
1 Documents annexed to the American Case, vol. v, p. 477.
The conduct of the ministers in this affair was earnestly discussed in both houses of Parliament, and was approved by both houses.
But it is remarkable, and pertinent to the present controversy, that neither in the House of Lords nor in the House of Commons was it maintained that the ministers had on this occasion overstepped the limits of the constitution of Great Britain.
The objection was, that the British Government had itself committed a breach of neutrality, in undertaking to intercept the transports on the high seas, or within the legitimate jurisdiction of one of the belligerents; and that the act was a violation of the sovereignty of the State to which the island of Terceira belonged.
We respectfully submit to this high Tribunal whether it is not idle to pretend that British ministers, possessing the constitutional power to pursue and arrest the Terceira expedition even on the high seas, for violating the neutrality of Great Britain, have no power to prevent, even within the ports of Great Britain, the expedition of men-of-war against the United States. In fine, the British ministers, it is impossible to doubt, had the same constitutional power to arrest and detain the Alabama in the ports of Great Britain, imperial or colonial, as they had to arrest there the Laird rams; and they had the same constitutional power to arrest the Alabama, Florida, Georgia, and other confederate cruisers on the high seas, as they had to arrest there the Terceira expedition.
16. And the existence of this constitutional executive power serves to explain, what otherwise would be to the last degree inconceivable, that is to say, the omission, in the British foreign- power of the Crown. enlistment act of 1819, to provide for executive action, as was done in the American foreign-enlistment act.
In the United States, it was necessary to impart such executive powers to the President, because, according to the tenor of our Constitution, it does not belong to the President to declare war, nor has he final and complete jurisdiction of foreign affairs. In all that, he must act by the authority, or with the concurrence, as the case may be, of the Congress, or of the Senate.
In Great Britain, on the contrary, it appertains to the prerogative power of the Crown to declare war and to make treaties, either of belligerent alliance or of peace; and, how much soever in practice it may
be customary for ministers to communicate with Parliament on these questions, it is not the less true that, constitutionally speaking, the prerog: ative power resides in the Crown.
17. The affirmative resolution of the British ministers to call this prerogative power into action for the sole purpose of elevating the rebels of the United States into the dignity of belligerents on a level with their own sovereign, and thus converting piratical cruisers into legitimate cruisers, and the negative resolution of the British ministers, in refusing to call into play the prerogative of the Crown, in order to give effect to their own professions of neutrality, injurious as even such professions were to the United States, in undertaking to place them and their rebels in the same category of international rights,—these two resolutions rendered it possible, as it would not otherwise have been, for the confederates to fit out cruisers in the ports of Great Britain : whereupon ensues responsibility of Great Britain for acts of the Confederates, in which, by false theory of action and negligence in fact combined, she participated to the prejudice of the United States.
See the facts of the Terceira expedition, Phillimore's International Law, vol. jii, p. 229.
ish Case Counter Case.
The British Case and Counter Case are largely occupied with matters
which are secondary, immaterial, not to say totally irrelevant, mantenere under in the judgment of the counsel of the United States, but
which, being seriously presented by the British Government, seem to require attention.
I. Much is said on the subject of the British foreign-enlistment act of Its treatment of 1819, of its assumed adequacy, of its value relatively to the their Breiche foreign similar acts of the United States, and of the comparative
legislation, in this respect, of Great Britain and of other European States.
All such considerations would seem to be foreign to the subject and beneath its dignity, when it is considered that laws of this vature, how much soever they may be locally convenient, yet do not serve to determine the duties of neutrality in the international relation of governments.
It is quite vain for the British Government to assert the sufficiency of the foreign-enlistment act of 1819. Its practical inefficiency was glaringly apparent on the face of all the relative diplomatic correspondence between Great Britain and the United States. The same insufficiency manifested itself in the legal proceedings in the case of the Alexandra in such degree as to throw contempt and ridicule upon the whole act. Quibbles of verbal criticism, fit only for insignificant things of mere domestic concernment, pervaded the opinions of the great judges of England in a matter closely affecting her international honor and foreign peace. It needs only to read the report of this trial to see how absurd is the hypothesis of the English Case and Counter Case, in arguing, that any question of peace and war, between Great Britain and other governments is to be determined according to the provisions of that act, and that in such a transcendent question the British ministers are under the necessity of floundering along in the flat morass of the meaningless verbosity and confused circumlocution of any act of Parliament. Well may Sir Robert Phillimore speak of “its loose phraseology and disjointed sentences.” 1 Well might Baron Channell say of the language of the act,“ more imperfect or faulty wording I can scarce. ly conceive. We cannot understand by what strange perversion of
" 2 reason it is that the British Government continues to maintain that its ministers were compelled to drift into the condition of foreign war rather than break free from the entanglement of the cobweb meshes of that act.
But, in fact, its inefficiency has been unequivocally admitted by the enactment, on the part of Great Britain, of the foreign-enlistment act of 1870, and by the official inquiry which preceded the passage of that act.
II. With similar sacrifice of the principal to the incident, and of the large to the minute, the British Government insists that the British act of 1819 is equal in efficiency to the American ween the British and act of 1818. It is strange enough that the British Govern- just.
International Law, vol. i, p. 466.
Its comparison be.
ment should make this suggestion in the presence of the documents contained in the appendix to the British Case, in which appears the report of the British minister at Washington, Sir Frederick Bruce, on the subject of the foreign-enlistment act of the United States, pointing out in detail the plain superiority of the American to the British act.
The great difference between the two consists in the cardinal fact that the provisions of the British act are merely punitive, and to be carried into effect only by judicial instrumentality; whereas the American act is preventive, calls for executive action, and places in the hands of the President of the United States the entire military and naval force of the Government, to be employed by him, in his discretion, for the prevention of foreign equipments and foreign enlistments in the United States.
Thus deficient, the British act was valueless, except as, if occasion should arise, to make it serve as a pretext to cover, in diplomatic communication with other governments, indifferent, unfriendly, or hostile animus on the part of some British minister. In other respects, however, that is to say, in the narrow limits of its own theory of municipal legislation, the British act is utterly inferior to the American act. Sir Frederick Bruce clearly shows the numerous traits of superiority in the American act.2
Thus, in the United States, the Government not only derives aid in the administration of the law from the officers of the customs, who in Great Britain are the sole dependence in this respect, but it has local officers in the principal ports, both administrative and executive, whose action it commands; it may impose bonds of good behavior on the owner
suspected vessels; informers are entitled to a share of forfeitures, and the judicial proceedings have advantages not to be found in the British act.
All these things are trivial when considered in relation to the great international questions of neutrality, and of peace or war. But we are compelled to discuss such trivialities by the extraordinary persistence of the British Government in basing its defense on the very defects of its act of Parliament.
III. Of these differences between the American and the British acts, and of the singular deficiencies of the British act, the explanation is at hand. It is to be found in what' English the United States writers themselves delicately describe as the prejudices of ins to power bank Great Britain, or which can better be described as indisposition to appreciate fully the rights of other governments.
The United States encountered the question of their own right of sovereignty in the matter of foreign equipments and foreign enlistments, and the relation of that matter to their own peace and the rights of other governments, at the very commencement of their career as a sovereign State. They were placed, at the very outset, in presence of the state of universal warfare produced by the French revolution, being exposed especially to the extreme exigencies of France and of England. They adopted a foreign policy of peace and neutrality. They determined, if possible, not to be drawn into the vortex of war, which had swallowed up Europe and all European America. The Case of the United States has related with fidelity and with all due amplitude the measures, administrative and legislative, adopted by the American Government, under
has always been anx. ious legis lative sufficient for the perform ance of its duties as a neutral.
* Appendix to the British Case, vol. iii, p. 67.
2 Lord Clarendon. says Mr. Buchanan, in one of his dispatches, referred to our neutrality law of April 20, 1818, in terms of high commendation, and pronounced it superior to their own, especially in regard to privateers. (App. Am. Case, vol. iv, p. 69.)