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the inspiration of President Washington, to maintain the rights of neutrality, in spite of aggression on both sides, which at length compelled the United States, in the defense of its neutrality, to encounter even war, first with France and afterward with Great Britain.
Among these measures was the enactment of that act for the preven.' tion of foreign enlistments and naval equipments, which, in all the steps of the present controversy, the British Government itself cannot refuse to honor and applaud, and which in the process of time it imitated in its own domestic legislation.
The American Government, sincerely professing neutrality, spared no honorable steps to give effect to its professions and to demonstrate its good faith. Of its own initiation it amended its legislation, when defects therein became apparent to its observation; and it willingly accepted suggestions of amendment from friendly and unfriendly foreign powers. And it has steadily adhered to the doctrine of that legislation.
The American Government has introduced such amendments more than once at the suggestion of Great Britain, not deeming it wise in the sense of its own interests, or just toward other governments, to stand obstinately, as Great Britain has done in like circumstances, on confessedly defective legislation of neutrality, and scorning to pretend that to do justice to such suggestion would be in derogation of the sovereign dignity of the United States.
The British Government alleges that on a recent occasion the American Government indicated purpose to repeal or materially weaken its foreign-enlistment act. That is an error. Every member of the Congress of the United States has the right to initiate measures of legislation. No exclusive right in this respect belongs to the President, (that is, the executive Government.) The President of the United States has not proposed the repeal or the diminution of the American neutrality act. A member of the House of Representatives did propose some amendments to that act tending to weaken its force; but his proposition was not inspired by the Executive, and was not adopted by Congress.
Not only in its legislative measures, but in its diplomatic intercourse with other governments, the United States diligently and sedulously pursue the policy of neutral right, and especially the immunity of the ocean, by exerting themselves on all fit occasions to introduce these principles into its treaties with other governments. D. Carlos Calvo calls attention to a “ curious document”.published by the minister of marine of the French Empire, in 1854, which enumerates some, but not all, of the treaty stipulations of this class initiated by the United States.?
We find this document in Pistoye et Duverdy's Traité des prises maritimes, tome ii, p; 492, and cite some portions of it to show the estimation in which the neutral faith and the neutral diligence of the United States have been held in France :
Les journanx de France et d'Angleterre (says the document,) d'après ceux des ÉtatsUnis d'Amérique, parlent d'officiers russes envoyés à New York avec la mission ostensible de surveiller la construction de bâtiments à hélice pour le compte de leur gouvernement; mais en réalité, afin d'organiser dans les ports de l'union, au moyen de lettres de marqne délivrées au nom du gouvernement russe aux citoyens américains, des armements en course contre le commerce français et anglais pendant la guerre devenue imminente entre la France et l'Angleterre d'une part, et la Russie de l'autre. Le Morning Post rappelait récemment, à ce sujet que le droit conventionnel et la législation des Etats-Unis leur faisaient un devoir d'empêcher, et, au besoin, de punir de tels actes d'hostilité contre le pavillon d'une puissance en paix avec l'uvion. Ce journal citait même quelques traités dans lesquels l'acceptation que des citoyens américains feraient de lettres de marque étrangères pour courir sus aux navires de la puissance cosigpataire, est assimilée à la piraterie et rendue passible du même traitement. On va donner
Cauchy, Droit maritime, tome ii, p. 236 et seq.
ici la nomenclature, aussi complète que possible, des conventions conclues par les ÉtatsUnis, et dans lesquels ce principe a été formellement consacré.
The document then refers to the American foreign-enlistment acts, and continues : Le gouvernement américain a déjà eu l'occasion de montrer qu'il était décidé à remplir loyalement les obligations internationales qui lui sont imposées par cette législation. En 1838, lors du blocus des ports du Mexique et de la République Argentine par nos forces navales, le ministère de France, à Washington, ayant eu lieu de craindre qu'on armât dans les ports de l'union des corsaires mnnis de lettres de marque des gouvernements du Mexique et de Buenos-Ayres pour courir sus aux navires français, avait appelé sur cet objet l'attention du cabinet américain. Le secrétaire d'État, M. Forsyth, lui donna l'assurance que de tels armements, s'il s'en faisait, ne seraient point tolérés.
C'est à quoi le gouvernment fédéral ne se croirait sans doute pas moins essentiellement obligé, si l'on tentait aujourd'hui d'organiser, dans les ports américains, un système de course, sous pavillon russe, contre le commerce de la France et de l'Angleterre. Il suffisait, tout porte à le croire, de signaler de semblables projets à sa vigilance, pour qu'il s'empressât de prendre des mesures aussi promptes qu'efficaces, dans le but d'assurer la complète exécution des lois en vigueur. Le gouvernnmet qui, en 1823, proposait à l'Angleterre et à la Russie de conclure une convention pour déterminer, sur les bases les plus libérales, les droits des neutres en temps de guerre, et notamment pour la suppression de la course maritime, acte dont la France venait de prendre l'initiative à l'occasion de la guerre d'Espagne, ce gouvernement-là, disons-nous, ne peut qu'être disposé à conformer, en ce qui dépendra de lui, sa politique et sa conduite au sentiment honorable qui le portait alors à considérer comme opportun de “revendiquer et rehabiliter les lois de l'équité naturelle, et d'étendre en mer l'influence bienfaisante des préceptes de la charité chrétieune.” (Note adressée par M. Middleton, ministre des ÉtatsUnis, à Saint Pétersbourg, au comte de Nesselrode, le 5 décembre, 1823.)
IV. In singular contrast with this policy of the United States has been the policy of Great Britain. She, one of the oldest maritime states of Europe, had no legislative prohibitions of Parliament to legis private maritime equipment for hostile purposes, until long after such legislation existed in the United States. How did this happen? We may conceive the reasons of this, when we reflect upon the numerous piratical enterprises fitted out in former times in ports of Great Britain against the possessions of Spain in America, and the honor accorded to the chiefs of those expeditions, such as Drake and Hawkins; and when we reflect further that British legislation, in this respect, only coinmenced when most of the Spanish colonies in America had made themselves independent of Spain.
But, even then, it required all the official and personal authority of Mr. Canning, and of the government of which he was a member, to overcome the vis inertiæ of the prejudices in this relation so deeply rooted in the mind of Great Britain.
In reading the debates in the British Parliament on occasion of the passage of the act of 1819, it is notable, first, that the opposition to the enactment seemed to be absolutely unconscious of all those principles of international morality involved in the question; and secondly, that the opposition seemed incapable of looking beyond Spain and Spanish America, taking no thought of the duties of Great Britain toward other governments of Europe, and toward the United States.
It is most interesting to see how, on this occasion, Mr. Canning towered above the other debaters, what clear perception he exhibited of the philosophy of the question, and what distinct knowledge of the true principles of international law, in contrast with the shallow arguments of even so eminent a person as Sir James Mackintosh.
Four years afterward the debate was resumed in Parliament, on a motion made by Lord Althorpe for the repeal of the foreign-enlistment act. On that occasion Mr. Canning again distinguished himself by the courage, the eloquence, the statesmanship, and the elevation of view, with which he combated the prejudices of his countrymen. He referred
1 See Hansard's Parliamentary Debates, vol. xl, passim.
Legislation of other countries.
Distinction be. tween and punishment.
to the United States in language which every American may read with pride, and which is pertinent to the present line of observation on the part of the counsel of the American Government.
And, unfortunately for the good understanding of Great Britain and the United States, the British Government is not yet fully emancipated from servitude to the traditional national prejudices which obstructed Mr. Canning. For, as the Case and Counter Case of the British Government show, it still lags behind the United States in appreciation of the true principles of public law, which lie at the foundation of the relations of independent sovereign States. V. The British Case, in strange misapprehension of the facts, assumes
that municipal laws for the preservation of neutrality ex
ist only in the United States and Great Britain. Meanwhile the report of the English Deutrality laws commission, contained in the appendix to the British Case, exhibits in detail the legislation of this class adopted by most of the governments of Europe.
In the British Counter Case, it is true, the foreign laws of this class are at length recognized, but with refinements of imaginary distinction, which tend to leave some doubt in the mind whether the Counter Case does, or does not, admit the error of the Case. The Counter Case does
not seem, even now, to see clearly that all these laws, whatpreventions ever be the diversity of form or of nomenclature among
them, are pervaded by one identical idea, namely, the prevention as well as punishment of acts of private persons, such as the enlistment of soldiers or mariners, or the expedition of men-of-war, or of letters-of-marque, in derogation of the local sovereignty, and tending to involve the local government in war with other governments.
Sir Robert Phillimore, himself a member of the commission, expresses the identity of theory and object in this relation between the laws of the United States and Great Britain, and those of other governments, as follows: “It appeared from evidence laid before the English neutrality laws commission, appointed by the Queen in 1867, (the recommendations of whose report are mainly incorporated in the present and recent statute,) that European States generally were furnished by their municipal law with the means of fulfilling their international obligations in this respect."
But the indirect or implied retraction in the British Counter Case does not relieve us from the necessity of examining the legislation of other governments, and their executive action in the premises, because that examination will show that the general conscience of the world rejects the theory of the British Government, and conforms to that of the United States. (a) We commence with scrutiny of the actual legislation of France,
because that legislation is the model of the modern legisla
tion, in this respect, of many other governments. The provision of the French Code Pénal is as follows: ARTICLE 84. Quiconque aura, par des actes non approuvés par le gouvernement, exposé l'état à une déclaration de guerre, sera puni du bannissement; et, si la guerre s'en est suivie, de la déportation.
ARTICLE 85. Quiconque aura, par des actes non approuvés par le gouvernement, exposé des Français à éprouver des représailles, sera puni du bannissement.
The general commentaries we make on these two articles will apply to similar provisions of law of other governments.
1 International Law, vol. i, p. 467.
To the casual reader of them the first idea which suggests itself is their brevity, as compared with corresponding legislation of Great Britain and the United States.
But careful examination shows that they express in plain language the true object and theory of all such laws, which is to punish private persons who undertake acts of war by land and sea, in derogation of the sovereignty and in prejudice of the peace of their country; and that they do it effectually, but in terms of equal terseness and precision.
On the other hand, the English acts are so overloaded with a mass of phrases, alike unprecise and confused, with so much of tedious superfluity of immaterial circumstances, as if they were specially designed to give scope to bar chicanery, to facilitate the escape of offenders, and to embarrass and confound the officers of the government charged with the administration of law. Such indeed has been the ordinary complexion of the legislation of Great Britain, and this style of complex verbosity of legislation has unhappily been transmitted to the United States, although there it begins to encounter steady efforts of reformation, which are conspicuous in the legislation of many of the American States.
These are secondary considerations, however. The important point is, that neither the administrative nor the judicial functionaries of France, nor her legislators and statesmen, ever conceived that the provisions of her penal code were anything more than what they profess to be, namely, the means of punishing the crimes of private persons. Statesmen and legislators of France never imagined that these provisions of the penal code are the measure and limit of her soverign rights or of her sovereign duties. Incidentally those provisions may come in aid of executive action. But to punish individual wrong-doers does not prevent wrong-doing, save incidentally by admonition and example. Punitive legislation is one thing, preventive another; and the only effectual prevention of the wrongful acts of private persons, which tend to compromise the neutrality of a Government, is the summary act of forcible prevention of such deeds by the supreme authority of the Government. Such is the theory of the laws of France in this behalf, as it is of the laws of the United States. I
This appreciation of the articles of the French Code Pénal is confirmed by authoritative commentaries thereon, some of which are reproduced in the documents annexed to the American Counter Case.
Accordingly, it is to be remembered that no cruisers sailed from the ports of France to depredate, under the Confederate flag, on the commerce of the United States.
At the very commencement, all Frenchmen were forbidden by sovereign act “to take a commission from either of the two parties to arm vessels of war, or to accept letters of marque for a cruise, or to assist in any manner in the equipment or armament of a war-vessel, or privateer, of either of the belligerents.” 2
And when attempts were made by the Confederates to construct and equip cruisers in the ports of France, on complaint being made by the minister of the United States, the construction of these vessels was arrested; and when a builder professed that vessels under construction, with suspicion of being intended for the Confederates, were in fact intended for a neutral government, the French ministers required proof of such professed honest intention, and carefully watched the vessels to make sure that they should not go into the service of the Confederates.
See documents annexed to the American Counter Case, pages E03 et seq.
On this point we quote the language of the minister of marine, as follows:
The vessels of war to which you have called our attention shall not leave the ports of France until it shall have been positively demonstrated that their destination does not affect the principles of neutrality, which the French Government wishes to rigidly observe toward both belligerents.'
Contrast this with the conduct of the British Gorernment in like cir. cumstances, as exhibited in the analysis of facts comprised in the present Argument, where it is shown with what incredible credulity the British Government accepted the false and deceptive statements of the criminal and mercenary ship-builders engaged in the violation or evasion of the laws of Great Britain.
It requires exercise of much candor to believe that the British ministers could have permitted themselves to be so grossly imposed upon, if they desired to know the truth. Had they done what the French Gov. ernment did in like circumstances—if they had required the known tools of Confederates at Liverpool, as might well have been done in virtue of the provisions of the merchant shipping act, and, indeed, of the foreign-enlistment act, to make proof of pretended honesty of purpose,-the present controversy between the two Governments might not ever have arisen.
In like manner the conduct of France, regarding the remanning of Confederate cruisers in her ports, is in striking contrast with the conduct of the British Government in reference to the same subject matter. (6) All the observations regarding the legislation of France apply, in
substance, to the legislation of Italy, and the regulations
of the Government of Italy, including circulars of the minis. ter of marine, and decrees of the King, all with distinct reference to the present controversy, are comprehensive, definite, and explicit in preventing, as they did prevent, any attempt of the Confederates to fit out cruisers in the ports of Italy, to abuse the right of asylum, or to cruise therefrom against the commerce of the United States.
All these measures, in form and effect, assumed preventive action by the executive, independently of the penal provisions of the municipal laws of Italy.3
The universality of laws of this class in the various countries of Europe is indicated by recent Italian juridical writers. (c) In like manner, examination of the laws, regulations, and political
action of Switzerland, in the matter of neutrality, shows
their conformity in theory with that of the United States, and emphatically contradicts that of Great Britain.
The Code pénal fédéral of Switzerland is in this respect more concise and comprehensive even than that of France, for it inflicts punishment on all persons guilty in Switerland of committing any act contrary to the law of nations.5
Various ordinances of the Federal Council contain the most stringent provisions for the maintenance of the neutrality of the republic.6
A federal law of Switzerland regulates in the fullest manner, and with all proper restrictions, the enlistment of troops in the territory of the
See Documents, ubi supra, p. 912.
4 See Ferrarotti, Commentario del codice penale, vol. i, pp. 261-2; and Castelleri, Legislazioni comparate, p. 284.
• Document annexed to the American Counter Case, p. 1092. 6 Ubi supra, p. 1105.