24 Testimonies of Seward on this sub against any foreign State, leaving her perfectly free to be so employed. by any foreign owner to whom she may afterwards be transferred. It is honorable to the candor of Mr. Bemis, an American writer, not partial certainly to Great Britain, (some of whose controversial writings have been brought before the Arbitrators Mr. Bemis and Mr. as part of the evidence of the United States, in vol. iv of ject. their Appendix, pp. 12-32 and 37-46,) that he pointed out, in a work published in 1866, from which extracts will be found in Annex (B) to the British Counter Case, (pp. 149, 150,) the inferiority (not superiority) for preventive as well as for other purposes of the Act of Congress of 1818 (the only law then and now in force in the United States for the maintenance of their neutrality) as compared with the British ForeignEnlistment Act of 1819. Nor was there any reason to complain of the fairness of Mr. Seward, when (disregarding, as in his view practically unimportant, all those points of detail in respect of which these two Acts differed from each other) he described the laws made for this purpose in the United States on the 9th April, 1863, as "in all respects the same as those of Great Britain," and on the 11th of July, 1863, as actly similar." (See Annex (A) to the British Argument or Summary, page 40.) But it is certainly astonishing, after these acknowledgments, (and in view of the facts above stated,) now to find these differences between the British and American Statutes insisted upon, in the Argument of the United States, as amounting to nothing short of the whole difference between a merely penal Statute and a law intended, and effective, for the purpose of prevention; and as constituting, on that account, a sufficient ground for inferring, a priori, a general want of due diligence on the part of Great Britain, with respect to all the matters covered by the present controversy. ex from the British For of 1870. Some reference must here be made to an argument, derived by the Counsel of the United States from the fact that a consider- 25. Argument of ble change and amendment of the British law has since been the United States made, and that new preventive powers (of a kind not eign-Enlistment Act found, either in the Act of Congress of 1818 or in the British Act of 1819) have been conferred upon the Executive Government of Great Britain, by a recent Statute passed by the British Legislature in 1870. The Legislature of the United States has not yet thought it necessary or expedient to introduce any similar or corresponding provisions or powers into the law of that country; it cannot, therefore, be supposed that the Government of the United States deems such provisions or powers to be indispensable to enable a constitutional Government, the Executive of which is bound to act according to law, to fulfill, with due diligence, its international obligations. No one can seriously contend that because, after experience gained of the working of a particular law or administrative machinery of this nature, certain points may be found, on a deliberate examination, in which it appears capable of being improved, this is a proof that it was not, before these improvements, reasonably adequate for the fulfillment of any international obligations to which it may have been meant to be subservient. In all improvements of this kind, it is the object of wise legislation not to limit itself by, but in many respects to go beyond, the line of antecedent obligation; the domestic policy and security of the State which makes the law, and the reasonable wishes, as well as the strict rights of foreign Powers, are proper motives and elements in such legislation. No nation would ever voluntarily make such improvements in its laws, if it were supposed thereby to admit that it had previously failed to make such due provision for the performance of its public duties as other Powers might be entitled to require. 26. Illustrations of diligence, from the States. With respect to the light which is thrown upon these questions by American history, it is, in the first place, to be observed the doctrine of due that the violations of neutrality which the Government of history of the United President Washington took measures to prevent, did not include the mere building or sale of vessels adapted for war, for or to a belligerent, within the territory of the United States, or the sending abroad of such vessels. They consisted (in the words of Jeffer son) in "the practice of commissioning, equipping, or manning vessels in ports of the United States to cruise on any of the belligerent parties." 1 Next it will be seen from that history that the Government of the United States, having made (as it considered) just and reasonable provision by laws for the fulfillment of its international obligations, always, both before and after 1817-18, referred to those laws, and to the evidence and procedure required by them, as the proper measure of the diligence which it ought to use when foreign Governments complained that ships had been or were being fitted out or dispatched from ports of the United States for the war service of their enemies or revolted subjects. Of the truth of this statement, examples will be found in the letters of Mr. Mallory to Don Antonio Villalobos, (16 December, 1816,) Mr. Rush to Don Luis de Onis, (March 28, 1817,) Mr. Fisk to Mr. Stoughton, (September 17, 1817,) Mr. Adams to Don Luis de Onis, (August 24, 1818,) Mr. Adams to the Chevalier de Serra, (March 14, 1818; October 23, 1818; September 30, 1820; and April 30, 1822 ;) all of which are in the third volume of the Appendix to the British Case, (pages 100, 106, 120, 129, 150, 157, 158, 160;) also in the letters of District Attorney Glenn to the Spanish Consul Chacon, (September 4, 1816,) and to Secretary Monroe, (February 25, 1817,) and of Secretary Rush to Mr. Mallory and Mr. McCulloch, (March 28, 1817,) which are among the documents, accom panying the Counter-Case of the United States (Part II, pages 40, 53-56, 61, and 62;) and in those of Attorney-General Hoar to District Attorney Smith, (March 18, 1869,) and to United States Marshal Barlow, (May 10, 1869,) among the documents accompanying the Counter Case of the United States, (Part III, pages 743 and 745-747;) and in the Circular of Attorney-General Hoar to the District Attorneys, (March 23, 1869,) and in the letter of District Attorney Pierrepont to Attorney-General Hoar, (May 17, 1869;) which are in the "Cuban Correspondence, 1866-1871," accompanying the Counter Case of the United States, (pages 29 and 59.) VII.-Objections of the United States to the Administrative System of Great Britain, and to the evidence required for the enforcement of the Law. 27. Arguments of the United States from suggested detrative machinery of the evidence required It appears, however, to be suggested that it was necessary, for the exercise of due diligence on the part of Her Majesty's Government, that they should have organized some system fects in the adminis of espionage, or other extraordinary means of detecting and British law, and from proving the illegal equipment of vessels, during the late civil by the British Gov- War; that it was inconsistent with due diligence to treat evidence of illegal acts or designs, producible in a British Court of Justice, as generally necessary to constitute a "reasonable ground for believing," that an illegal equipment, which ought to be prevented, had taken place or was being attempted; and that in all such cases the officers of the British Government ought to have obtained for them ernment. 'British App., vol. v, p. 242. selves the proper evidence, without asking for assistance from the Ministers, Consuls, or other Agents of the United States. We present now [says the Argument of the United States, pages 157 to 160] to the notice of the Arbitrators, certain general facts which inculpate Great Britain for failure to fulfill its obligations in the premises, as assigned by the Treaty. 1. The absolute omission by Great Britain to organize or set on foot any scheme or system of measures, by which the Government should be put and kept in possession of information concerning the efforts and proceedings which the interest of the rebel belligerents, and the co-operating zeal or cupidity of its own subjects, would, and did, plan and carry out, in violation of its neutrality, is conspicuous from the outset to the close of the transactions now under review. All the observations in answer to this charge, made in contemporary correspondence or in the British Case or Counter Case, necessarily admit its truth, and oppose the imputation of want of "due diligence" on this score upon the simple ground that the obligations of the Government did not require it, and that it was an unacceptable office, both to Government and people. Closely connected with this omission was the neglect to provide any systematic or general official means of immediate action in the various ports or ship-yards of the kingdom, in arrest of the preparation or dispatch of vessels, threatened or probable, until a deliberate inspection should seasonably determine whether the hand of the Government should be laid upon the enterprise, and its project broken up and its projectors punished. The fact of this neglect is indisputable; but it is denied that the use of due diligence to prevent," involved the obligation of any such means of pre vention. We cannot fail to note the entire absence from the proofs presented to the Tribunal of any evidence exhibiting any desire or effort of the British Government to impress upon its staff of officers or its magistracy, of whatever grade, and of general or local jurisdiction, by proclamation, by circular letters, or by special instructions, any duty of vigilance to detect, or promptitude to declare, of activity to discourage, the illegal outfit or dispatch of vessels in violation of international duty towards the United States. It is not less apparent that Great Britain was without any prosecuting officers to invite or to act upon information which might support legal proceedings to punish, and, by the terror thus inspired, to prevent, the infractions of law which tended to the violation of its international duty to the United States. It was equally without any system of executive officers specially charged with the execution of process or mandates of courts or magistrates to arrest the dispatch or escape of suspected or incriminated vessels, and experienced in the detective capacity that could discover and appreciate the evidence open to personal observation, if intrusted with this executive duty. And in another place, (page 161,) they added that The Arbitrators will observe the wide difference from these views and conduct of Great Britain in the estimate which the United States have put upon their duty in these respects, of spontaneous, organized, and permanent vigilance and activity, and in the methods and efficacy of its performance. On all the occasions upon which this duty has been called into exercise, the Government of the United States has enjoined the spontaneous and persistent activity of the corps of District Attorneys, Marshals, Collectors, and the whole array of subordinates, in the duties of observation, detection, information, detention, prosecution, and prevention. They ask, also, (page 85,) for the assent of the Arbitrators to the views of Mr. Dudley, the United States Consul at Liverpool, when (writing to Mr. Seward with respect to the request of the British Government for evidence as to the destination of the Alabama, before such evidence had been supplied) he said: I do not think the British Government are treating us properly in this matter. They are not dealing with us as one friendly nation ought to deal with another. When I, as the Agent of my Government, tell them from evidence submitted to me that I have no doubt about her character, they ought to accept this until the parties who are building her, and who have it in their power to show if her destination and purpose are legitimate and honest, do so. The burden of proof ought not to be thrown upon In a hostile community like this it is very difficult to get information at any time upon these matters. And if names are to be given it would render it almost impossible. The Government ought to investigate it and call upon us for proof. us. * # * If the line of argument contained in the two first of the foregoing 28. Inconsistency treaty with the re- reasonable grounds of belief. extracts is used for the purpose of inducing the Arbitrators of the rules of the to hold the British Government responsible for matters di, which were never actually brought to their knowledge, so when there were not as to make their prevention possible, (as in the case of the Georgia and the Shenandoah, and of the vessels which took out armaments to those ships, and to the Alabama and the Florida respectively, from Great Britain,) it appears to lose sight of the fact that, according to the express words of the first Rule, and the evident meaning of all the three Rules of the sixth article of the Treaty of Washington, the obligation to "use diligence to prevent" is consequent upon, and not antecedent to, the existence of "reasonable ground for believing," that in the particular case something which (if known) ought to be prevented, is intended to be done. If that reasonable ground for belief was in any particular case absent, there was no such obligation; and to invite the judgment of the Arbitrators upon some supposed defects in the administrative system of Great Britain, with regard to the discovery of offenses against the Foreign-Enlistment Act, or the laws of Customs and Navigation, in order to found thereon a conclusion that, under some different system of administration,facts which never actually came to the knowledge of the British Government, and of which they had no information, either from the Agents of the United States or from any other quarter, might possibly have been discovered in time for prevention, is, practically, to ask for the substitution of different Rules for those of the Treaty, and to impose retrospectively upon Great Britain obligations, which neither usage nor international law has ever hitherto recognized as incumbent upon any nation. 29. The British tive and spontaneous As, however, it is conceivable that this line of argument may be thought to deserve rather more attention, when it comes to Government took ac- be applied to cases in which information, unaccompanied measures to acquire by legal evidence of any actual or intended violation of the tion, and to prevent law, was given to the British Government before the departure of a vessel alleged to have been illegally equipped, it seems expedient not to pass it by without refutation. all proper informa breaches of the law. It is a complete error to suppose that the British Government did, in fact, ever rely merely on such information and evidence of actual or intended violations of the Foreign-Enlistment Act as might reach them from the Ministers, Consuls, or Agents of the United States; or that they did not recognize and fulfill the duty of endeavoring, by the independent activity and vigilance of their own officers, and by following up all such information as reached them from any other quarters by proper inquiries made through those officers, to discover and prevent any intended breaches of the law. The warnings of the Proclamation of Neutrality, issued at the commencement of the war, announced to all the Queen's subjects Her Majesty's determination to enforce the Foreign-Enlistment Act against all offenders, to the best of her power. Notwithstanding the statements, (already cited at page 160 of the American Argument,) it is the fact that there did exist "systematic and general means of action," adequate in all respects for the due and bona fide enforcement of the law, in all the ports and places where ship-yards existed, throughout the British Empire. It is also the fact, notwithstanding what is there said, that special instructions were issued to the Custom-house authorities of the several British ports, where ships of war might be constructed, and also by the Secretary of State for the Home Department to the various authorities with whom he was in communication, to "endeavor to discover and obtain legal evidence of any violation of the Foreign-Enlistment Act, with a view to the strict enforcement of that Statute, wherever it could really be shown to have been infringed." These instructions were repeated in or before April, 1863; and Earl Russell, when communicating that fact to Mr. Adams, (2d April, 1863, Appendix to Case of United States, vol. i, page 590,) stated that "Her Majesty's Government would be obliged to him to communicate to them or to the local authorities at the several ports any evidence of illegal acts which might from time to time become known to him." "Of these facts," says the American Argument, "no evidence is found in the proofs submitted to the Tribunal." Is not Earl Russell's statement of the fact to Mr. Adams evidence? Is his veracity, in a matter which was necessarily within his knowledge, disputed? The British Government have not so dealt with statements made, as to matters within their knowledge, by men of honor in the public service of the United States. But this is not all. There are facts which speak for themselves. In the case of the Pampero (which was afterward seized and prosecuted to condemnation) and of another suspected vessel at Glasgow, information was collected by the Commissioners of Customs, and communicated to Mr. Adams by Earl Russell in a letter of the 21st of March, 1863, which was transmitted by Mr. Adams to Mr. Seward in another letter dated March 27, 1863, in which he (Mr. Adams) used these words: "It is proper to mention that the investigation appears to have been initiated by his Lordship, upon information not furnished from this Legation; and that his communication to me was perfectly spontaneous." (Appendix to the Case of the United States, vol. ii, page 203; and see British Appendix, vol. ii, page 474, &c.) The circumstances relative to the Georgiana, after her arrival at Nassau, were first brought to the notice of Her Majesty's Government by information (derived from a New York newspaper) which they received from Mr. Archibald, the British Consul at New York, in April, 1863. This information was followed up by careful and spontaneous inquiries as to this ship and as to another vessel, called the South Carolina, said to be arming in the Clyde, neither of which proved to be intended for war. (British Appendix, vol. ii, page 158.) In the case of the Amphion, respecting which a representation was first made by Mr. Adams on the 18th of March, 1864, inquiries had been set on foot by Her Majesty's Government as early as the preceding 13th of January. In the case of the Hawk, the first representation made by Mr. Adams was dated 18th of April, 1864; but inquiries had been previously made by the British Government, upon information received by them on the 2d of April from the Commissioners of Customs. In the case of the Ajax, as to which no representation was made before she sailed by the American Minister or Consul, careful inquiry had been made by the Customs Department in Ireland, in January, 1865; their attention having been called to the ship by the Coast Guard officers. The action of the British Government to prevent the Anglo-Chinese flotilla, early in 1864, (as to which no obligation, municipal or international, was incumbent upon them,) from falling into the hands of the Confederates, was wholly spontaneous and unsolicited. 30. The British Government followed received, by the up all information Furthermore: In every case in which information, however unsupported by evidence, as to any suspected vessel, was communicated to Her Majesty's Government by Mr. Adams, or otherwise, a strict watch was directed to be kept on the vessel, and special inquiries were ordered to be made by the proper persons. The results of these inquiries were reported, in every proper inquiries. |