republic for foreign service, providing that it shall not be done without the express permission of the government; and various official reports demonstrate the active efficiency of the federal government in defending its neutrality, not merely by municipal laws, to be executed by the courts, but by the most complete executive action supported by the military force of the republic. Brazil. (d) Similar conclusions apply to the legislation and the administrative action of the empire of Brazil: in considering which it will be convenient also to refer to the legislation and administrative action of Portugal, because of the similarity of their laws, and the more or less of common commentary thereon by juridical writers in one country or the other, of eminence and authority. The penal code of Portugal in this respect is substantially the same as that of France.2 Portugal. That of Brazil, while comprehending the same idea, is more complete in its development. By that code it is a crime on the part of any individual to "provoke directly and by acts a foreign nation to declare war against the empire," or "if in case no declaration of war take place, but in consequence of such provocation there should be necessity for any sacrifice on the part of Brazil, or prejudice of her integrity, dignity, or interests." By that code it is also made a crime to "commit, without order or authority of the government, hostilities against the subjects of another nation, so as to compromise peace, or provoke reprisals." Furthermore it is declared to be piracy "to practice on the sea any act of depredation or violence, whether against Brazilians, or against foreigners with whom Brazil is not in a state of war." 113 Both in Brazil and Portugal these provisions of the penal code are but incidental only to the executive action, which prevents by supreme authority any violation of their neutrality, either by subjects or by foreigners. We beg leave to refer this high tribunal to the administrative regulations of the Brazilian Empire, for the enforcement of neutrality in all the ports of the Empire, in the amplest manner, by efficient action on the part of the imperial ministers, and of the provincial presidents.* In the American Case, and the documents to which it refers, there is sufficient indication of the loyalty and efficiency with which the Brazilian Government maintained its sovereignty against the aggressive efforts of the Confederates.5 As to Portugal, we refer to the correspondence annexed to the American Counter Case, to show that she also never pretended that her neutral duty was confined to the execution of the provisions of her penal code. She also put forth the executive power of the Crown to prevent, repress, or repel aggressive acts of the Confederates in violation of her hospitality, or in the derogation of her sovereignty. Nay, more, the Government of Portugal, finding its own naval force inadequate to prevent the Confederates from abusing the right of asylum in the Western Islands, expressly authorized the American Government to send a naval force there for the purpose of defending the sovereignty and executing the law of Portugal. 6 1 Vattel, Droit de gens, éd. Pradier-Fodéré, tome ii, p. 454, note. 2 Documents annexed to the American Counter Case, p. 958. 2 Ubi supra, p. 1041 et seq. 4 See the circulars issued by the Brazilian Government, in supplementary documents annexed to the American Case, vol. vii, p. 107 et seq. 5 American Case, p, 465. See documents annexed to the American Counter Case, p. 1013 et seq. Spain. (e) In Spain, the "Codigo Penal," while repeating the general provision of the French "Code Pénal," adds the following important specific enactment to punish " any person who without legitimate authorization shall levy troops in the kingdom for the service of any foreign power, or shall expedite cruisers, whatever may be the object proposed, or the nation against which it is intended to commit hostilities."1 But Spain never pretended that she had any right to plead these provisions of her penal code as excuse for omitting to act preventively by executive power to repress misconduct on the part of the Confederates.2 (f) In regard to the governments of Brazil, Portugal, and Spain, it deserves to be remarked that their respective juridical commentators fully explain the theory of their penal codes as being chiefly valuable to aid in the preservation of the national peace. They rightfully maintain that neither the enlistment of troops in a country for foreign service, nor the equipment of ships of war in their ports for such service, would of themselves, and of necessity, involve any disturbance of the domestic peace. Such acts are not prohibited as being immoral or criminal per se, but only if done in derogation of the local sovereignty and in prejudice of the rights of other governments. That is to say, these laws, although not bearing the title of "Neutrality Laws," are quite as clearly neutrality laws in fact as the foreign-enlistment acts of the United States and of Great Britain.3 We might extend these remarks to the legislation of all the other maritime states of Europe. Belgium and Holand. (g) The penal laws of Belgium and the Netherlands, in this respect, are identical with those of France.* (h) The provision of the penal code of the Netherlands deserves attention because of the very pertinent remarks respecting it made by the Netherlands minister, Mr. Van Zuylen, in reply to the inquiries of the British chargé d'affaires, Mr. Ward. Mr. Van Zuylen writes as follows: THE HAGUE, March 6, 1867. Mr. Ward's note of the 16th instant, asking information for his government about the laws, regulations, and other means that the Netherlands may use to prevent violation of neutrality within her borders, has been received. In reply, the undersigned informs Mr. Ward that there is no code of laws or regulations in the Kingdom of the Netherlands, concerning the rights and duties of neutrals, nor any special laws or ordinances for either party, on this very important matter of external public law. The government may use articles 84 and 85 of the penal code; but no legislative provisions have been adopted to protect the government, and serve against those who attempt a violation of neutrality. It may be said that no country has codified these regulations and given them the force of law; and though Great Britain and the United States have their foreignenlistment act, its effect is very limited. The Netherlands government has not yet thought proper to collect the regulations in relation to the rights and duties of neutrality; but has always scrupulously observed the principles of the European law of nations, and has published notices (as Great Britain and France did in 1861) to Netherland subjects not to carry dispatches or articles contraband of war, nor to break an effective blockade, nor to engage in privateering, nor accept letters of marque. The admission of belligerent ships of war into our ports was regulated in the same manner, and the special instructions sent to our colonial governors, during the civil war in the United States, were communicated to the British legation on the 17th December, 1861. 1 Documents, ut supra, p. 1051 et seq. 2 Ubi supra, p. 1072 et seq. See also the letter of the Spanish minister, M. Ribeiro, to Sir A. Paget, Amer. App., vol. iv, p. 158. 3 See Silva Ferrão, Theoria do Direito Penal, vol. iv, pp. 181, 231; and Pacheco, Codigo Penal Concordado, tome ii, pp. 91, 96, in Documents, ubi supra, pp. 958, 1052. 4 See Nederlandsche Wetboeken, ed. 1865, p. 677, for the law of the Netherlands. Those notices were more extensive and precise last year. The government undertook to prevent the equipment of war vessels for the belligerents in her ports. A copy of the Official Gazette, March 20, 1866, containing those notices, is hereto annexed. Articles 84 and 85 of the penal code may be used as coercive measures to prevent violations of neutrality. For example, they might serve to prosecute those attempting to equip or sell vessels of war in our port for the benefit of belligerents. The vessels could then be seized on evidence, and their departure be thus prevented.1 Mr. Van Zuylen's language is inaccurate. He obviously intended to express that the Netherlands have no laws known by the name of laws of neutrality, or codified as such. He seems not to have thought that mere penal provisions deserved the name, although he refers to penal provisions, which, as he says, are ancillary, in that sense, to the exercise of the executive power of the government, this being the proper, and indeed the only effectual, agency for the protection of its sovereignty against invasive or evasive acts on the part of belligerents. The efficiency with which executive power is applied to such subjects in the Netherlands is fully manifested by the pertinent circulars of that government.2 (i) We find similar laws existing in Russia; in Prussia, which had occasion once to apply those laws to the acts of British Russia and Prus agents in Prussia; in Denmark, and in Sweden.3 sia, Denmark and Sweden. (j) The documents, which exhibit the legislation and political action of Denmark in this relation, are particularly interesting, because they so clearly show how the penal or punitive laws were merely and simply supplemental to the preventive action of the Government. 6. On review, therefore, of the legislation and political action of Great Britain, as compared with that of all other Governments, we arrive at the following conclusions: Comparative review. (a) The institutions of Italy, Brazil, Switzerland, France, Spain, Portugal, the Netherlands, and all other Governments of Europe indeed, except Great Britain, expressly assume, as do the institutions of the United States, that volunteer and unauthorized military and naval expeditions, undertaken in a neutral country, are to be restrained, because tending to involve such country in war with the country aggrieved. Infringements of the law are punished mainly for that reason, including the protection of the national sovereignty. (b) Hence, in all those countries, except Great Britain, the punitive law is a secondary fact; the primary fact being the preventive action of the Government. (c) The United States perfectly understood this, the true relation of things, and while they indicted persons and arrested ships, they did not, when occasion required action, rely on such merely punitive, or at most auxiliary, means, but called into play the armed forces of land and sea to support the Executive in summary acts of prevention by force for the maintenance not only of the sovereignty but of the neutrality of the Government. (d) Neither Lord Russell, in his correspondence with Mr. Adams, nor the framers of the British Case, appear to have had any clear conception of these higher relations of the subject, although distinctly and explicitly stated in the best works of international law of Great Britain herself. (e) Great Britain alone pretends that punitive law is the measure of neutral duties: all other Governments, including the United States, pre 1 Documents annexed to the American Case, vol. iv, p. 155. 2 Documents annexed to the American Counter Case, Supplement, p. 56. vent peril to the national peace through means of prerogative force, lodged, by implied or express constitutional law, in the hands of the Executive. VIII. We are now prepared to judge whether, in the incidents of the present controversy, the conduct of other governments was, Conclusions. as the British government pretends in answer to the recla mations of the United States, the same as that of Great Britain, and whether Great Britain did all which they did in discharge of international obligations toward the United States. It is obvious to see that, upon her premises of political action, it was impossible that Great Britain should discharge those duties as they were discharged by other governments. In point of fact she did not. (a) Other governments not only prevented the armament of cruisers, but also forbade their construction. For example, France, the Netherlands, Denmark. (b) Other governments imposed just limits on asylum, and punished its abuse. For example, Brazil, France, Spain, Portugal. (c) No other government allowed armed cruisers to sail from her ports to prey on the commerce of the United States. She alone furnished the Alabamas and the Floridas, which, by the capture of our merchantmen, gave to the United States cause of national reclamation. (d) In no other government was the wrong committed of allowing itself, as Lord Russell unequivocally admits, to be subjected to the shame of being the established seat of the military and naval supplies of the Confederates. The history of the United States as a neutral a part of the IX. Both in the Case and Counter Case of the British government there is elaborate arraignment of the government of the United States, in respect to the manner in which, at various British pleadings. periods of their public history, they have discharged their neutral obligations toward other governments. nied. We dispute the right of the British government to discuss any such Its relevancy de- matter before this Tribunal. Great Britain is here accused, not only of violation of neutrality, but of permitting or suffering the active complicity of her subjects with the rebels of the United States. It is no answer to this charge to say that, at some time past, the American Government was, or may have been, delinquent toward some other government. Such an answer is not compatible with reason or justice, but is contrary to both. Nothing is, or can be, on trial before this tribunal, but the conduct of Great Britain. That, and that alone, is submitted by the treaty of Washington. To summon the United States to enter into discussion of its acts toward other governments, which is in effect now done by the British Government, is to call on the Tribunal to pass judgment on imputed acts of the United States which are wholly outside of the questions to be submitted by the two governments, according to the tenor of the Treaty. The British Case and Counter Case, it is true, introduce these matters professedly as bearing on the inquiry of what is due diligence, by examination of what has been the conduct of the United States under circumstances of alleged similarity to those involved in the present controversy. But these matters are not the less discussed by the British Government in the manner and spirit of counter accusation. And, even as to the specific relation in which the subject is professedly introduced by the British Government, it is not the less utterly irrelevant, valueless as argument, and incapable in any respect of instructing the conscience of this Tribunal. The two governments have submitted the question of the conduct of Great Britain at a precise period of time and in a specific relation, that of the late domestic rebellion in the United States. That is the definite subject to be investigated and judged by the Tribunal, upon the proofs presented by the two governments. As incidental to this particular subject, is the Tribunal to take up and examine twenty other controversies, each wholly independent of that and of one another, and to determine seriatim each one of them, in order to know how to determine the particular controversy submitted by the Treaty? That would be preposterous as reason, and impossible to be done, as act. The counsel of the United States must refuse to consent to have drawn in judgment here the past or present relations of their government to France, Spain, Portugal, Mexico, or even Great Britain herself. Nevertheless, being thus challenged by the British Government, we presume to say that the history of the foreign relations of the United States, in this respect, if it have any pertinency to the present controversy, has such pertinency to the effect of confirming the theories of public law on which the present reclamations of the United States here stand, as maintained in this Argument. The Tribunal cannot fail to observe, in the first place, that while Great Britain constantly asserts that her duties of neutrality are defined by an act of Parliament, and that her government has no means or power to maintain neutrality, except by the agencies of an act of Parliament, yet during her entire national life, for a period of nearly eight hundred years, she did not possess any such act of Parliament, and, of course, during all that period she neither could nor did discharge her duties of neutrality towards other governments. It would be an unwelcome task to the counsel of the United States, as they well might, to proceed to imitate the British case, and recount all the occasions, even in more modern times, in which it might be charged that by acts of aggressive intervention, by sea and by land, Great Britain has manifested her slight consideration of the proper rights of the other states of Europe, more especially in the class of maritime questions, and of domestic disturbances existing in other states. Are not the works of jurisprudence of all nations full of inculpations of these acts on the part of Great Britain? Has not every maritime state of Europe, one after the other, been forced in self-defense, in these relations, into war with Great Britain ?1 And yet it would be much more pertinent to the present issue thus to scrutinize the political conduct of Great Britain with reference to other governments, than it is to scrutinize that of the United States. Now, then, while, until the year 1819, Great Britain had no municipal law for the preservation of neutrality, and while she steadily disavows the possibility of using any other means, the United States, on the contrary, almost at the very moment of entering into the family of nations, asserted, and have continued to assert, the right and the duty of every government to act as such politically, and by exercise of supreme executive force to watch over, guard, and maintain its neutrality between contending belligerents. While England professes, as her view of public law, that constitutional governments must of necessity allow themselves to drift continually into war by reason of having no other means to keep peace except an act of Parliament, and that confessedly insufficient, the United States, on the other hand, have as constantly maintained, and do now maintain, that it is the duty of all governments, in See Canchy, ubi supra; Lucchesi Palli, Droit Public et Maritime, p. 55, et seq.; Cussy, Phases, etc., préf. |