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ernment, in this respect, relatively to the American Government. We could not otherwise discharge the special duty devolved upon us in behalf of the United States.
We concede the embarrassments which a state of war throws upon neutral nations, by reason of the conflict which it involves between the interests of the latter and those of the belligerent state or states.
The right of neutrality, we concede and admit, is co-extensive with the right to declare war and to make peace. All these rights are included in the simple right of national independence and sovereignty.?
Recognizing, then, the right of neutrality as equally sacred with the right to make war, we insist that the duty of neutrality corresponds to the right, although to the prejudice of one or the other belligerent; and in so far as the right of neutrality obstructs belligerent operations, the neutral State may nevertheless stand on its neutrality, even combatively. But such neutral must stand there in an attitude of absolute impartiality: that is of course.3
And such impartiality implies as well impartiality of inaction as impartiality of action.'
Neutrality, as defined by Klüber, is the condition of a neutral people, who, in the case of war, render succor to neither of the belligerent parties.
As defined by Hübner, neutrality consists in complete inaction relatively to the war, and in exact and perfect impartiality, manifested by means of acts with regard to the belligerents, in everything which has relation to the war, and to the means, direct and indirect, of carrying it on.
Azuni defines neutrality to be the continuation of the state of peace on the part of a power, which, on war arising between two or more nations, abstains absolutely from taking any part therein ;' and this last definition has the approval of one of the most conspicuous of the modern jurists of Italy.
But in whatever sense neutrality is to be defined, and howsoever it originates, certain it is, that such neutrality must be one of absolute good faith': it must not degenerate into war in disguise.
Accepting, as we do, the comprehensive definition of neutrality given by Fiore, we need not scruple to cite the appreciation, which that intelligent author expresses, of the historical attitude of the United States in the relation.
"In spite," says Fioré, " of the efforts of Holland and Scandinavia, the cause of neutrals found no real support until there arose a powerful State to maintain their common rights. It was not, in truth, before the constitution of the potent neutral State of the United States of America, which was followed by the league of the armed neutrality in the seas of Europe, that the right of neutrals, having solid support to stand on, began to develop itself progressively, until that right reached its assured
See Casanova, Del Diritto Internazionale, vol. ii, lez. 21.
Klüber. Droit des Gens, Ø 279; Galiani, Dei Doveri dei Principi, pt. i, c. 3; Hautefeuille, Droits et Devoirs des Nations neutres, tom. i, p. 376.
3 Martens, Droit des Gens, éd. Vergé, tome ii, p. 292 et seq.; Heffter, Droit international, p. 276 et seq.; Cauchy, Droit maritime, passim.
4 Massé, Le Droit commercial dans ses Rapports avec le Droit des Gens, tomo i, p. 165. 6 Droit des Gens, chap. ii, ( 279. 6 De la Saisie des Bâtiments neutres, tome i, part 1, chap. ii. 7 Diritto Marittimo dell'Europa, cap. i, art. 3.
8 See the complete and exhaustivo discussion of this question in Calvo, Derecho internacional, Téorico y Practico, de Europa y America, tome ii, pp. 150, 403. See, also, Gessner, Droit des Neutres sur Mer, passim.
triumph, in resolving, by principles of justice, the multifarious questions which had agitated past ages."
We need not stop to inquire against what power it was that these efforts for the development and establishment of neutral rights were directed by the neutral powers which acted in concert to that great end.?
The Counsel of the United States may be permitted, in view of the express or implied charges of the British Case and Counter Case, to regard with satisfaction, if not with pride, the part thus accorded to their country, in the maintenance of neutral rights, and the discharge of neutral duties alike, by the impartial voice of Europe.3
John Laird as a witness.
Fioré, Nouveau Droit international public suivant les besoins de la civilisation moderne, tome ii, p. 388. 2 See Cauchy, Droit Maritime, tome i, préf. ; Cussy, Phases, &c., préf.
Among the matters which the British Case or Counter Case introduces to attention are several which are too insignificant for notice in the text, but which may need a word of commentary.
John Laird, ex-partner and father of "John Laird, Sons & Co.,” appears making statements against the United States.
The Lairds, it should seem, would better hide their heads. And it would seem that Great Britain, who, largely by their means, has been involved in acts which profoundly, and perhaps permanently, disturb her relations with the United States, had had quite enough of such persons.
As witnesses, they are worthless, Laird, senior, dishonored himself by deceptive statements in the House of Commons with respect to the operations of Laird, Sons & Co. The time when he could win applause there by boastful hostility to the United States has passed. Neither Lord Palmerston, if living, nor Lord Russell, if in the House of Commons, nor Mr. Gladstone himself, could look with complacency to-day on the ship-building firm which so_zealously served the confederates, to the injury alike of Great Britain and of the United States.
1. John Laird says that a man-of-war was built in the United States for Russia, and delivered to her during her late war with Great Britain. Proof, a newspaper statement in the Times. Laird and the Times are both mistaken. The case of the Maury, mentioned by Sir Roundell Palmer, shows that at this period British officers in America, while engaged in violating the American foreign enlistment act themselves, were watchful to prevent its violation by Russia.
Laird communicated to Lord Tenterden, December 12, 1871, copies of letters between Laird, Sons & Co. and Mr. H., an American, who corresponded with the former on the subject of building a ship or ships for the United States. The correspondence shows that Mr. H. was a mere speculator on his own account, wholly without any authority from the Secretary of the Navy of the United States. “ Our Department of Naval Affairs," as he ignorantly calls it, and our “Minister of the Navy," which expressions alone ought to have satisfied the Lairds that they were being victimized by some ingenious New Yorker. Mr. H. abusively referred to the Secretary of the Navy to promote his own private interests or those of the Lairds.
John Laird, in the zeal of his sympathy with the rebellion, made the same statement in the House of Commons long ago, and was flatly contradicted by Mr. Welles, the American Secretary of the Navy.
The superserviceable Mr. H. had no commission from the American Government. He began to treat orally with the Lairds, early in 1861, before the arrival of Mr. Adams in England. No officer of the United States appears to have countenanced Mr. H., but the Navy Department, according to Mr. Welles, was importuned by more than one person in behalf of Mr. Laird. If Mr. H. was the agent of anybody, it was of the Lairds.
The British Government must be in desperate straits for defense, when it condescends to resuscitate the stale calumnies of "un homme taré," like John Laird, and to put them into its Case.
2. In this connection we dispose of another of the smaller items of accusation of the United States.
It is charged in the British Case that we purchased arms in England. What then ? Was it not lawful to do so, according to the accepted law of nations ?
This charge is another illustration of the injustice of that act of the British Government which assumed to put the United States and their rebels on a footing of international equality in the markets of Great Britain.
Not thus have the United States deported themselves toward Spain in the matter of Cuba.
Purchase of arms.
V.-STATEMENT OF SOME GENERAL FACTS PERTINENT TO THE
INQUIRY, AND APPLICABLE TO EACH CRUISER.
Resume of facts
estabPish unfriendly ani. mus of British gov.
The United States in their Case, which was delivered to the Tribunal
of Arbitration on the 15th day of December last, presented Alated in the Americ evidence to establish the following facts:
1. That before the outbreak of the insurrection in the erniment and people. United States, Her Majesty's Government invited the Gorernment of the French Emperor to act jointly with the British Gov. ernment in the anticipated rising of the insurgents.
2. That before an armed collision had taken place, Her Majesty's Government determined to recognize the insurgents as belligerents, whenever the insurrection should break out.
3. That, in accordance with the previous invitation to the French Government, Her Majesty's Government announced its decision so to recognize the insurgents, and invited France to do the same, as soon as it heard of the outbreak of the insurrection, and before it had official information of the steps which the Government of the United States proposed to take for the suppression of the same.
4. That after the announcement of this decision was made, and before the Queen's Proclamation was issued in accordance therewith, the attention of Her Majesty's Government was called in both houses of Parliament to results which it was supposed would follow the recognition of the insurgents as belligerents, viz, that they would be entitled to carry on war on the ocean, and to issue letters-of-marque.
5. That, simultaneously with the invitation to the French Government to join in the recognition of the insurgents as belligerents, that Government was invited to join Her Majesty's Government in an effort to obtain from the insurgents certain advantages to British and French commerce, on the condition, held out in advance, that the right of the insurgents to issue letters-of-marque should not be questioned.
6. That these steps were taken clandestinely, without the knowledge of the United States; and that the desired advantages were obtained, and the right of the insurgents to issue letters-of-marque was recognized.
7. That these unfriendly acts, committed before or soon after the outbreak of the insurrection, were supplemented by other unfriendly acts injurious to the United States and partial toward the insurgents.
8. That they were also supplemented by public speeches made by various members of Her Majesty's Government, at various times, throughout the war, showing that the speakers had personal sympathies with the insurgents, and had active desires that they should succeed in their attempts to defeat the forces of the United States.
The United States further insisted in their Case that the facts which they had so established showed an unfriendly feeling toward them, which might naturally lead to, and would account for, a want of diligence bordering upon willful negligence.
Her Majesty's Government has met this part of the Case
of the United States by the following averments: To the second chapter of the American Case, which imputes to the British govern
The British re. sponse no denial,
Rejoinder to the
ment hostile motives and, even insincere neutrality, no reply whatever will be offered in this Counter Case. The British Government distinctly refuses to enter upon the discussion on these charges. First, because it would be inconsistent with the self-respect which every government is bound to feel ; secondly, because the matter in dispute is action, and not motive, and therefore the discussion is irrelevant; thirdly, because to reply and to enter upon a retaliatory exposition, must tend to inflame the controversy, which in the whole tone and tenor of its Case the British Government hąs shown its desire to appease; and lastly, with respect to the charges themselves, if they were of any weight or value, the British Government would still contend that the proper reply to them was to be found in the proof which it has supplied that its proceedings have throughout, in all points, been governed by a desire, not only to fulfill all clear international duties toward the Government of the United States, but likewise, when an opportunity was offered, even to go beyond what could have been demanded of it as of right, in order to obviate all possibility of cavil against its conduct.
Her Majesty's Government states, in substance, that for three given reasons no answer will be made to the charges made by the United States; and this statement is followed by an averment that “the proof which Her Majesty's Government has supplied” “rebuts the charges which the United States contend to have established.” We have but few remarks to make in respect to these conflicting averments.
To the statement that to reply to the charges would be inconsistent with the self-respect of Her Majesty's Government, we cannot presume to interpose an answer. We recognize that British response. each independent Government must be the guardian of its own selfrespect, and must decide for itself whether the attempt to answer or to explain such facts as were contained in the Case of the United States is inconsistent with that self-respect.
To the averment that such a reply would tend to inflame the controversy, we venture to submit to the arbitrators that it is not easy to see how a friendly explanation of acts which, when committed, naturally tended to excite the present controversy, will assist in continuing or increasing the feeling which those acts caused.
To the assertion that a retaliatory exposition would tend to inflame the controversy, we reply, denying that any retaliatory exposition can be made by Her Majesty's Government. The tribunal will observe what the exposition” of the United States has been. It has been charged and proved that Her Majesty's Government collectively committed acts, and that the members of that Government individually made speeches, that revealed an active feeling of unfriendliness to the United States, which would lead to and account for the acts of which complaint is made before this Tribunal. How is it possible to make a retaliatory exposition of” such charges? Great Britain is not here complaining of any act of the United States. What the Government of the United States may have done, or what the individual members of that Government may have said, in respect to the Government of Great Britain, or in respect to the members thereof, touching any of the occurrences of the war which may be brought to the notice of the tribunal, cannot become material or relevant here.
If Her Majesty's Government conceives that it is in its power to present here proof of acts or of sayings on the part of the Government of the United States, or of the members thereof, which ought properly to be taken into consideration by the Tribunal, the charges should be openly made, rather than insinuated. We feel confident that no such proof can be found.
The averment that the discussion is irrelevant has been received with surprise. We had supposed it to be a fundamental princi- Relevancy of the ple of law, in the jurisprudence of all civilized nations, that facts to the issue. The motives which prompt an act affect its character; and that, when it
is attempted to charge a principal for the acts of a subordinate, it becomes not only relevant but material to show what influences the former has brought to bear upon the latter.
It is proved, for instance, in the Case of the United States, that the Florida was armed at Green Cay in British waters. Her Majesty's Government replies that over such a dominion as the Bahamas, no Gov.
“ ernment could reasonably be expected to exert such a control as to prevent the possibility that acts of this kind might be furtively done in some part of its shores or waters.” 1
The general allegation that acts committed furtively, in remote and unfrequented parts of a coast, against the wishes of a Government, and in spite of well-intended, active efforts to prevent them, are not acts over which that Government could reasonably be expected to exert a control, commands the assent of the United States. They would not themselves consent to be held responsible for the results of such acts. It happens, however, that each Government has furnished the Arbitrators with proof that there was a controlling bias at Nassau in favor of the insurgents and against the United States; and Her Majesty's Gov. ernment furnished the additional proof that this bias resulted from a similar bias which was supposed to exist in the Government and people of England. It certainly must be relevant for the United States to show that such a bias did actually exist in England; that it was openly shown by different members of Her Majesty's Government; and that their views could not but have been known, not only to the colonial authorities at Nassau, but also to the British subordinates at Liverpool, Glasgow, Melbourne, Bermuda, and the Barbados. Whether the acts or omissions of their subordinates which resulted disastrously to the United States were influenced by the known wishes of their superiors, and whether the expression of those wishes was not therefore an absence of due diligence, is a legitimate subject for argument by the Counsel of the United States. Lord Westbury acknowledged the relevancy of such evidence when
he said, “the animus with which the neutral acted is the only true criterion.”
92 Mr. Montague Bernard acknowledged it when he said, “injurious
remissness or injurious inattention on the part of a Govern
ment is not merely something less than the greatest possible promptitude or the greatest possible care.” “It has not been usual in international questions to scrutinize narrowly the circumstances from which negligence might be inferred and complaints of actual negligence have been urged but rarely, and with a view rather to security for the future than to reparation for the past. These considerations are indeed plain and obvious, and the Government of the United States is probably not insensible to them, since it is at pains to insist that the neglect with which it charges the Government of Great Britain was gross, inex. cusable, and extreme, equivalent or approximate to evil intention."93 Earl issell was of the same opinion when he said: “It appears to
Her Majesty's Government that there are but two questions
by which the claim of compensation could be tested. The one is : Have the British Government acted with due diligence, or in other words with good faith and honesty, in the maintenance of the neutrality they proclaimed ? The other is, have the law-officers of the Crown properly understood the Foreign-Enlistment Act, when they de
1 British Counter Case, pp. 78, 79. 2 Am. Case, p. 101. 3 Neutrality of Great Britain during the American Civil War, pp. 385, 387.
Mr. Montague Bernard,