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has resisted temptation and pursuasion to take that step, moved to abstinence by his own conviction of public duty and right.

Secondly, in case after case, Cubans seeking to fit out vessels in the ports of the United States have been arrested, and their attempts broken up by the executive interposition of the President.

Thirdly, Spain, as the treaty friend of the United States, has not been subjected to the wrong of seeing her rebels raised in the ports of the United States to the level of herself their sovereign; but, on the contrary, has been allowed, as she had a right to do, openly to build or purchase men-of-war in the United States.

Finally, no cruisers have sailed from the ports of the United States to prey on the commerce of Spain. Therefore, if, which we deny, Spain suffered any damages in the premises at the hands of the American Government, those damages must be of the nature which Great Britain regards as indirect damages, and therefore never in any circumstances due from one to another gonernment.

(g) Allusion also occurs, in the British Case or Counter Case, to some occasions in which persons in the United States have invaded, or attempted to invade, the Canadian Dominion.


Such occurrences have existed, as they do in all frontier countries. As to the first of them, it deserves to be stated that special provisions of law were enacted to enable the President of the United States more effectually to discharge the duties of the Government toward Great Britain.

In reference to that, and some other occurrences of the same nature, it is well to note the testimony borne by Sir Roundell Palmer in a speech made by him in the House of Commons, already quoted on a particular point, and in which he further says:

I wish to impress upon the House that, as far as the enforcement of their foreignenlistment act is concerned, we have absolutely no grievance against them, (the United States.) They have again and again restored prizes captured in violation of that act. As recently as the Russian war, in a case where we complained that a vessel called the Maury was fitted out in violation of the foreign-enlistment act, they immediately detained that vessel, her clearance was stopped, and an inquiry was subsequently directed, and that inquiry, conducted entirely to our satisfaction, ended in our expressing a belief that there were no real grounds for the suspicion entertained. In the interest of peace and amity between the two countries, therefore, I wish the House to understand that we have no grievance against them with regard to the foreign-enlistment act, and that it deeply concerns our honor to enforce the foreign-enlistment act.1

In reference to later incidents of the same class, in which Irishmen in the United States have attempted to invade Canada, we present the testimony of the British minister in the United States, whose dispatch testifies in terms which may fitly close this part of the present Argument, as follows:

WASHINGTON, July 13, 1866.

SIR: I have duly reported to Her Majesty's Government the disturbances that lately took place on the frontiers of New Brunswick and Canada, and the measures taken by the Government of the United States to prevent those expeditions of armed men, in breach of the neutrality laws, from being carried into effect.

I am directed by Her Majesty's government, in reply, to state that for some months past they have observed with regret, though without alarm, the organization of the Fenians in the United States; but they have invariably abstained from making any official representation to the cabinet at Washington, because they felt they had no right, as indeed they had no desire, to interfere with the administration of the law in the United States. They had, moreover, a perfect conviction that if ever the time came for the fulfillment by the United States of the obligations which international law imposes upon friendly and allied governments, that Government would take all the measures which those obligations and regard for its own honor might call upon it to perform.

1 Hansard's Debates, vol. clxxiii, p. 955.

Her Majesty's Government rejoice to find that this confidence has been fully justified by the result, and that the Government of the United States acted, when the moment for acting came, with a vigor, a promptness, and a sincerity which call forth the warmest acknowledgments.

I am, in consequence, instructed to express to the Government of the United States the thanks of Her Majesty and Her Majesty's Government for the friendly and energetic assistance which they have afforded in defeating the attempts to disturb the peace of Her Majesty's possessions in North America.

I have the honor to be, with the highest consideration, sir, your most obedient, humble servant,

Hon. WILLIAM H. SEWARD, &'c., &c.1


We remark, in passing, that in all the cases referred to by Sir Frederick Bruce and Sir Roundell Palmer, of the conduct of the United States in relation to Great Britain, this conduct has been the same at all times in relation to other governments. As we are entitled to the ascription. of "a vigor, a promptness, and a sincerity which call forth the warmest acknowledgments," in the former class of occurrences, so we are in the latter, the British Case and Counter Case to the contrary notwithstanding. In every instance of attempt to violate our neutrality, on the part whether of governments or of private persons, we have set in action all the juridical machinery of the municipal law; we have pushed into vigilance our custom-house officers, which England has, and our districtattorneys and marshals, which England has not; but in addition to and beyond all that, the President of the United States acted in advance to enforce, not diligence only, but active vigilance, on all subordinate officers of the Government; and when wrong-doers manifested obstinate persistence of wrong, the military and naval officers, of character and discretion, like General Scott, Admiral Paulding, and General Meade were employed to apply to such persons the only method of prevention applicable to the case, namely, force, to maintain the domestic order and foreign peace of the Government.

We regret, and have sufficient cause to regret, as the present controversy shows, that Great Britain, who cannot blind herself to the vigor, promptness, and sincerity manifested by the American Government in repressing such acts in America, has not manifested equal vigor, promptness, and sincerity herself in repressing similar acts in Great Britain. (h) The counsel of the United States would gladly abstain from reference to another occurrence in this class of incidents, beduring the Crimean cause, unlike what has gone before, it is not of a defensive, but of an accusatory character.

British enlistments,


It singularly happens, while Great Britain, in her Case and Counter Case, is so careful to recount what she assumes to be the imperfections of the United States, in the execution of our foreign-enlistment act, heaping up a long train of accusations against us, she forgets that the most serious of all the occasions, in which the United States have been called on to act, was the attempt of Great Britain, to the prejudice of Russia, to violate, on a large scale, the neutrality of the United States. And the occasion is the more remarkable, seeing that the British ministers themselves, with characteristic misconception of the whole subject of neutral rights and duties, procured a special act of Parliament to be passed for the single and precise object of enabling them to invade the sovereignty, and to violate the local laws, of every country in Europe and America.

We allude to the act of Parliament, passed at an early day during the war between Great Britain and Russia, professedly and avowedly to enlist soldiers abroad of its own authority for service against Russia.

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Documents annexed to the American Case, vol. ii., p. 130.

We understand how the British ministers fell into the error of thus exposing to the gaze of the world, on this occasion, the difficulty of ob taining troops at home. In former wars, as we in the United States had sad experience, it had been the custom of Great Britain thus to act, at a period of time when the enlistment of foreign troops was a practice, all but universal in Europe.

But what we should not understand, but for the false theory which pervades the Case and Counter Case of Great Britain here, is, that the British ministers should have imagined that the rights of Great Britain, as respects all foreign governments, are determinable by an act of Parliament.

On both points British ministers appear to entertain consistent theory. The neutral obligations of Great Britain, as respects any foreign government, are but such as are set forth in an act of Parliament; and Parliament is to determine her rights as respects foreign governments. On both related points they act and think as if no law of nations existed, or, at least, as if an act of Parliament could dictate the law of nations for all other governments.

That enlistment of troops in any country, for foreign service, can only be made lawfully with the consent of the local government, is elementary doctrine of public law.1

It is equally well established at the present time that, if such enlistment be allowed by a neutral to one belligerent, it must be allowed to the adverse belligerent; and, since the publication of Sir Robert Phillimore's great work on international law, probably no person, even in Great Britain, would dispute the proposition.


It took time, however, for British jurists to open their eyes to this self-evident doctrine of neutrality. Wildman seems to have little or no conception of that point, and it needed that Manning should enter into elaborate argumentation on the subject, as if it were a wholly new question, in order to introduce the rightful opinion into Great Britain.3

And yet Great Britain herself had manifested, by several acts of Parliament, that she saw clearly the inconvenience and the wrongfulness of foreign governments, or private persons, enlisting troops within the jurisdiction of Great Britain, without the authorization of the government.4

There never was any doubt or hesitation upon this subject in the United States. Our statesmen, beginning with Mr. Jefferson, at all times have unequivocally and positively maintained it; and our jurists, such as Wheaton, Lawrence, Kent, and Halleck, are careful to state the doctrine with explicitness. At the present day, in presence of the extensive erudition and systematic completeness with which Sir Robert Phillimore has expounded the principles of international law, including this point in all its relations," it might seem that the truth would be accepted in Great Britain.

Nevertheless the same old error still lingers there, if we may judge from the tenor of the British Case and Counter Case; that "insularity" of legal perception, of which eminent English jurists speak, still ope

1 Wolff, Jus gentium, s. 747. Vattel, Droit des gens, éd. Pradier-Fodéré, liv. iii, chap. 7, s. 449. Klüber, Droit des gens modernes de l'Europe, s. 285. Martens, Précis du droit des gens, s. 30. Galiani, Dei doveri de principi neutrali, p. 325. Hautefeuille, Droits et devoirs des nations neutres, tome i, 312, 313. ~ Riquelme, Derecho publico internacional, tom. i, p. 144.

2 International Law, vol. i, p. 64.

3 Law of Nations, book iii, chap. 1.

4 See numerous acts of Parliament on this subject, collected in Phillimore's Interuational Law, vol. 1, p. 212.

Vol. iii, p. 209 et seq.

rates; and, while the British Government acted in the matter of enlistments as if the act passed during the war with Russia was supreme over all the sovereign rights of other governments, so it now assumes that an act of Parliament is supreme over all the neutral rights of other governments.

On the former occasion Great Britain came in conflict with the neutrality laws of the United States and Prussia. In each of these countries, she assumed to carry into effect a domestic act of Parliament of her own, without asking the consent of the local government. In each of them, her agents were indicted and convicted of violation of the municipal law of the land. And in the United States, where the British minister was personally compromised in these unlawful acts with various British consuls, in disregard of their diplomatic or semi-diplomatic quality, it became painfully necessary for the American Government to withdraw the exequaturs of the consuls, and to deliver his passport to Mr. Crampton.2 We trust the Tribunal, on the perusal of those documents, will be satisfied of the sincerity and good faith with which the American Government executed its municipal laws, and discharged its neutral duties, on this, the only occasion, since the revolutionary action of France, in which any foreign government has undertaken to perpetrate such acts in the United States.

Qualis ab incepto talis ad finem. With consistency unwavering, and at whatever hazard of domestic or foreign inconvenience, even if it were friendly powers like France and Great Britain with which we were thus brought into contention, the United States have steadily adhered to the principles of international neutrality; and we may well, therefore, demand the observance of those principles, or reparation for their nonobservance, on the part of Great Britain.

The course of Great Britain as a belligerent towards neutrals.

X. We repeat a previous remark, that we are not disposed to follow the example set us in the British Case and Counter Case, as we might well do, by entering into examination and arraignment of the course pursued by Great Britain at various times on the subject of neutrality in her controversies with other governments. It is not agreeable to a friend to be compelled to say,

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This the British Case does, wantonly, offensively. If the United States were to scan with like evil eye every occasion in which Great Britain might seem to have neglected her duty as a neutral, or to have violated the rights of neutrals, we might produce a fearful list of charges; and such examination would be more pertinent to the present issue, and bring into view matters more pregnant of instruction, than those as to which the conduct of the United States is called in question here by the British Government.

We content ourselves, in this relation, with a brief reference to two or three great controversies of special interest to the American Government, where the British Government has manifested its views of the duties of neutrality, and of the manner of dealing with alleged breaches thereof by the neutral.

1. The celebrated orders in council, issued by the British government in retaliation of the Berlin and Milan decrees of the first Napoleon, involved intense assertion of neutral obliga

Orders in council.

1 Phillimore, 1st ed., pref., p. 11; Chitty's Practice, pref., p. 5, note.

2See the documents on this subject in the Appendix to the American Counter Case.

tion; and that in the form of acts of force as against the United States, which responded to these wrongful measures by an act of Congress forbidding all commercial intercourse between our citizens and either of the belligerents. This act, says Phillimore, "ranks high in the history of nations. It conveyed a just and dignified rebuke both to France and England, and it was worthy of the country which has contributed such valuable materials to the edifice of international law."2

Course toward

American Revolu

2. The discussion between Great Britain on the one hand, and France on the other, in the first year of the American Revolution, produced three papers on the subject of neutral obligation, France during the of the greatest importance in the diplomatic history of mod- tion. ern times, and which contain many observations pertinent to the present controversy, namely, the "Exposé des motifs de la conduite du Roi de France relativement à l'Angleterre, 1779;" the responsive" Mémoire justificatif," published by the court of London, the authorship of which is attributed to the historian Gibbon; and the "Observations de la Cour de Versailles sur le Mémoire justificatif de la Cour de Londres."3

3. Meanwhile, controversy was pending between Great Britain and the Netherlands similar to that with France. The British Gov- Course toward ernment complained that the Government of the United the Netherlands. Provinces had not exercised due diligence to prevent their subjects from furnishing arms and other supplies to the Americans; and that abuse of the right of asylum in the ports of the Netherlands had been suffered the advantage of the Americans and the prejudice of Great Britain.

Especially is it interesting to see, in this controversy with the Netherlands, that Great Britain complained incessantly of occurrences in the Dutch colonies of Saint Eustatius, Saint Christopher, Curaçao, and Surinam, charged as breaches of neutrality, although acts by no means so serious as those, of a similar nature, which the United States here charge against Great Britain, in regard to the Bahamas, Bermuda, and other British possessions in the West Indies.

The Government of the United Provinces, unlike France, had no thought or purpose of departing from neutrality. It defended the acts, inculpated as breaches of neutrality, by the same arguments, in reference to commerce, and to the right of asylum, as Lord Russell employed in discussion with Mr. Adams. But the British Government regarded all those acts as acts of neutral negligence or of belligerent complicity on the part of the United Provinces, and as a sufficient cause of war, and thus forced the Netherlands into an armed alliance with the United States.1

But the prudent and sagacious statesmen, who have administered the foreign affairs of the United States in the present controversy, have preferred a patient perseverance of insistance in the right direction, so as to cause arbitration to be substituted for the more dread issue, to which, in like circumstances, men of less wisdom conducted Great Britain.

General obligations

X. The Counsel of the United States desire to say in conclusion of this part of the Argument, that we have, by the imperative exigencies of the present controversy, been compelled to of neutrals. compare and contrast the manner in which the duties of neutrality have been performed at different epochs by the United States and by Great Britain, and especially to insist on the delinquency of the British Gov

1 Manning, Law of Nations, vol. iii, ch. 10; Phillimore, vol. iii, p. 412.

2 Vol. iii, p. 250.

3 See these documents at large in Martens, Causes célèbres, tome iii, cause 2de. See the history of this controversy in Martens, Causes célèbres, tome ii, cause 10me.

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