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tion of practical discretion, judgment, and moderation what is the proper way of vindicating the offended dignity of the neutral Sovereign." 1 The United States do not deny the force of the commission of a manof-war issuing from a recognized Power. On the contrary, Opinion of Chief they point with a pardonable pride to the exhaustive Justice Marshall. [205] language of *Chief Justice Marshall on this subject as evidence of what they understand to be the practice of nations. Nor do they deny that since Great Britain had, however precipitately and unjustly, recognized the existence of a civil war between the United States and the insurgents, and avowed a determination to remain neutral between the parties, she might, without a violation of the law of nations, commit the further injustice of allowing to such vessels of war of the insurgents as had not been built, armed, equipped, furnished, fitted out, supplied, or manned within her territory, in violation of her duty to the United States, the same rights of asylum, hospitality, and intercourse which she conceded to the vessels of war of the United States. They do, however, most confidently deny that the receipt of a commission by a vessel like the Alabama, or the Florida, or the Georgia, or the Shenandoah, exempted Great Britain from the liability growing out of the violation of her neutrality. To this point they are fortunately able to cite two from the many pertinent cases adjudicated in the Supreme Court of the United States, which show directly what the public law in this respect is understood to be, not only by the United States, but also by

Spain and by Portugal.

Decision of the Supreme Court of

United States in the

cases of the Santisima Trinidad and the

[206] *The first is the case of the Santisima Trinidad,3 the facts of which have already been given. The property for which restitution was claimed in this case was Spanish. The libel was filed by the Spanish Consul at Norfolk on behalf of the owners. The capture was shown to have been Gran Para. made after a commission to the vessel, expressly recognized by the court rendering the decision. Nevertheless, restitution was decreed on the ground of an illegal increase of armament in the neutral territory after the commission.

The second case is that of the Gran Para, also already alluded to. The libel was filed by the Consul General of Portugal. The opinion of the court was given by Chief Justice Marshall. The facts are set forth so clearly in the opinion that no other statement is necessary. The Chief Justice, in announcing the judgment of the court, said:

"The principle is now firmly settled that prizes made by vessels wh have violated the acts of Congress that have been enacted for the preservation of the neutrality of the United States, if brought within their territory, shall be restored. The only question, therefore, is, Does this case come within the principle?

"That the Irresistible was purchased, and that she sailed out [207] of the port of Baltimore, armed *and manned as a vessel of war, for the purpose of being employed as a cruiser against a nation with whom the United States were at peace, is too clear for controversy. That the arms and ammunition were cleared out as cargo cannot vary the case. Nor is it thought to be material that the men were enlisted in form as for a common mercantile voyage. There is nothing resembling a commercial adventure in any part of the transaction. The vessel was constructed for war and not for commerce. There was no cargo on board but what was adapted to the purposes of war. The crew was

1 Hansard, 3d series, vol. 174, page 1595.

The Schooner Exchange against McFadden et al., 7 Cranch's Reports, 116.
37 Wheaton, 283.
47 Wheaton, 471.

too numerous for a merchantman, and was sufficient for a privateer. These circumstances demonstrate the intent with which the Irresistible sailed out of the port of Baltimore. But she was not commissioned as a privateer, nor did she attempt to act as one until she reached the river La Plata, when a commission was obtained, and the crew re-enlisted. This court has never decided that the offense adheres to the vessel, whatever changes may have taken place, and cannot be deposited at the termination of the cruise in preparing for which it was committed; and as the Irresistible made no prize on her passage from Baltimore to the river of La Plata, it is contended that her offense was deposited there, and that the court cannot connect her subsequent cruise with the transactions at Baltimore.

*If this were to be admitted in such a case as this, the laws [208] for the preservation of our neutrality would be completely eluded, so far as this enforcement depends on the restitution of prizes made in violation of them. Vessels completely fitted in our ports for military operations need only sail to a belligerent port, and there, after obtaining a commission, go through the ceremony of discharging and re-enlisting their crew, to become perfectly legitimate cruisers, purified every taint contracted at the place where all their real force and capacity for annoyance was acquired. This would, indeed, be a fraudulent neutrality, disgraceful to our own Government, and of which no nation would be the dupe. It is impossible for a moment to disguise the facts that the arms and ammunition taken on board the Irresistible at Baltimore were taken for the purpose of being used on a cruise, and that the men there enlisted, though engaged in form as for a commercial voyage, were not so engaged in fact. There was no commercial voyage, and no individual of the crew could believe there was one. Although there might be no express stipulation to serve on board the Irresistible after her reaching the La Plata and obtaining a commission, it must be completely understood that such was to be the fact. For what other purpose could they have undertaken *this voyage? Everything [209] they saw, everything that was done, spoke a language too plain to be misunderstood.

*

"It is, therefore, very clear that the Irresistible was armed and manned in Baltimore, in violation of the laws and of the neutral obligations of the United States. We do not think that any circumstances took place in the river La Plata, by force of which,this taint was removed."

The principle re

Great Britain, Spain,

United States.

The course of the French Government during the insurrection in the case of the Rappahannock, already referred to, practically cognized by France, asserted the power of the neutral to protect its violated Portugal, and the sovereignty, even against a commissioned vessel of war. The British Government itself recognized this prinsiple when it ordered the Alabama to be seized at Nassau, and when it found fault with the Governor of the Cape of Good Hope for not detaining the Tuscaloosa at Cape Town. The principle for which the United States contend has therefore been recognized by Great Britain, Spain, Portugal, France, and the United States.

Deposit of the of fense.

It is not deemed necessary to add to the forcible views of Chief Justice Marshall in the case of the Gran Para, as to the deposit of the offense of the cruiser. The United States only ask that the same just rules which they, through their highest *judicial officer and most eminent jurist, have established for [210] offenses committed on their own soil, may be applied to the of fenses against British neutrality from which they have suffered. The

Alabama, the Georgia, the Florida, the Shenandoah, and the other insurgent vessels of war made no cruise that was not planned on British soil. Their respective cruises were to last till the independence of the Confederacy should be established. The career of the Florida terminated at Bahia-that of the Alabama off Cherbourg. The Shenandoah and the Georgia came eventually into the possession of the United States. The principal injuries, which will be hereinafter set forth, came from the acts of these vessels. There were, however, other vessels, whose careers and crimes, as well as those of the above-named four, will now be given in detail.

Before proceeding to do so, it will be well to note the points which have been thus far made.

The United States trust that they have established to the Resume of princi satisfaction of the Tribunal of Arbitration as against Great ples. Britain

1. That it is the duty of a neutral to preserve strict and impartial neutrality as to both belligerents during hostilities. (See the Queen's Proclamation; also extracts from various writers on International Law

above cited.)

[211] *2. That this obligation is independent of municipal law. (See

as above.)

3. That a neutral is bound to enforce its municipal laws and its executive proclamation; and that a belligerent has the right to ask it to do so; and also the right to ask to have the powers conferred upon the neutral by law increased if found insufficient. (See the precedents in General Washington's administration; Lord Palmerston's speech of July 23, 1863; the opinion of the British Attorney General during the Crimean war; and the United States Special Law of March 10, 1838.)

4. That a neutral is bound to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a Power with which it is at peace. (See 1st Rule of the Treaty; also the Foreign Enlistment Acts of 1819 and 1870; also the precedents in General Washington's administration; also the writers on International Law who have been cited.)

5. That a neutral is bound to use like diligence to prevent the construction of such a vessel. (See Foreign Enlistment Act of 1870; also the action of the United States Government in 1869; also the writers on International Law above cited.)

[212] *6. That a neutral is bound to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war against any Power with which it is at peace; such vessel having been specially adapted, in whole or in part, within its jurisdiction, to warlike use. (See 1st Rule of the Treaty; also the Foreign Enlistment Act of 1870.)

7. That a neutral may not permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other. (See 2d Rule of the Treaty, the Foreign Enlistment Act of 1870, and the writers on International Law above cited; also the instructions to the British naval forces during the Southern insurrection.)

8. That a neutral is bound to use due diligence in its ports or waters, to prevent either belligerent from obtaining there a renewal or augmentation of military supplies, or arms for belligerent vessels, or the recruitment of men. (See 2d Rule of the Treaty; also the precedents of General Washington's administration; also the Foreign Enlistment Acts of 1819 and 1870; also the Queen's Proclamation.)

9. That when a neutral fails to use all the means in its power to prevent a breach of the neutrality of its soil or waters, in any of the foregoing respects, the neutral should make compensation for *the [213] injury resulting therefrom. (See precedents of General Washington's administration between Great Britain and the United States; treaty of 1794 between Great Britain and the United States; treaty of 1819 between the United States and Spain; correspondence between Portugal and the United States, 1817-22, and Articles VII and X of the Treaty of Washington.)

10. That this obligation is not discharged or arrested by the change of the offending vessel into a public man-of-war. (See the cases of the Santisima Trinidad and the Gran Para, above cited.)

11. That this obligation is not discharged by a fraudulent attempt of the offending vessel to evade the provisions of a local municipal law. (See the Gran Para, as above; also Bluntschli and other writers on International Law.)

12. That the offense will not be deposited so as to release the liability of the neutral even by the entry of the offending vessel in a port of the belligerent, and there becoming a man-of-war, if any part of the original fraud continues to hang about the vessel. (See the Gran Para, as above.)

[214]

[215]

*PART IV.

WHEREIN GREAT BRITAIN FAILED TO PERFORM ITS DU. TIES AS A NEUTRAL.

"There is no doubt that Jefferson Davis and other leaders of the South have made an army; they are making, it appears, a navy."-Speech of Mr. Gladstone, Chancellor of the Exchequer, October 7, 1862.

"It has been usual for a power carrying on war upon the seas to possess ports of its own in which vessels are built, equipped, and fitted, and from which they issue, to which they bring their prizes, and in which those prizes when brought before a court are either condemned or restored. But it so happens that in this conflict the Confederate States have no ports except those of the Mersey and the Clyde, from which they fit out ships to cruise against the Federals; and having no ports to which to bring their prizes, they are obiged to burn them on the high seas."Speech of Earl Russell, Principal Secretary of State for Foreign Affairs, April 26, 1864. "Her Britannic Majesty has authorized her High Commissioners and Plenipotentiaries to express in a friendly spirit the regret felt by Her Majesty's Government for the escape, under whatever circumstances, of the Alabama and other vessels from British ports, and for the depredations committed by those vessels.”—Treaty of Washington, Article I.

Admissions of British Cabinet Min

isters.

The extracts which are placed at the head of this division of the Case of the United States are at once evidence of the facts which will now be set forth, and a condensation of the line of argument which those facts logically suggest. The United States summon no less illustrious a person than the present Prime Minister of England, to prove, not only that the insurgents were engaged in the year 1862 in making a navy, but that the fact was known to the gentlemen who then [216] constituted Her Majesty's Government. They place on the stand as their next witness Her Majesty's Principal Secretary of State for Foreign Affairs during the whole period of the rebellion, to prove where the insurgents were constructing that navy, and why they were constructing it in the Mersey and the Clyde; and further, to prove that these facts, also, were known at the time to the gentlemen who then constituted Her Majesty's Government. And lastly, they lay before the Tribunal of Arbitration the graceful and kindly testimony of the regret of Her Majesty's Government that the escape' of the cruisers, which were built in Great Britain, with the knowledge of the Government, and which constituted that navy, should have resulted in the subsequent destruction of the property of citizens of the United States. In discussing this question, except so far as may be absolutely necessary for the protection of the interests which they are bound to [217] guard, the *United States will not attempt to disinter from the grave of the past the unhappy passions and prejudices, and to revive the memory of the injuries, often great and sometimes petty, which caused such poignant regret, such wide-spread irritation, and

"I wish the word 'escape' had not been found in the apology, as it is termed in describing the exit from our ports of the Alabama and other ships of that kind. I cannot help thinking that was an unguarded expression, which may affect the course of the future arbitration. I can easily imagine that in some minds the word 'escape' would be construed unfavorably to this country, for it means that something has got away which might have been retained. We speak of the escape of a prisoner; and the meaning of the term is that there was power to prevent the escape, and that the escape happened in spite of it."-Lord Cairn's (ex-Chancellor) speech in the House of Lords, June 12, 1871. See London Times, June 13, 1871.

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