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IV. MISCELLANEOUS CONSIDERATIONS.

Many irrelevant

The British Case and Counter Case are largely occupied with matters which are secondary, immaterial, not to say totally irrelevant, tters in the in the judgment of the counsel of the United States, but which, being seriously presented by the British Govern

ish Case and Counter Case.

ment, seem to require attention.

Its

I. Much is said on the subject of the British foreign-enlistment act of treatment of 1819, of its assumed adequacy, of its value relatively to the the British foreign similar acts of the United States, and of the comparative legislation, in this respect, of Great Britain and of other

enlistment act of

1819.

European States.

All such considerations would seem to be foreign to the subject and beneath its dignity, when it is considered that laws of this nature, how much soever they may be locally convenient, yet do not serve to determine the duties of neutrality in the international relation of governments.

It is quite vain for the British Government to assert the sufficiency of the foreign-enlistment act of 1819. Its practical inefficiency was glaringly apparent on the face of all the relative diplomatic correspondence between Great Britain and the United States. The same insufficiency manifested itself in the legal proceedings in the case of the Alexandra in such degree as to throw contempt and ridicule upon the whole act. Quibbles of verbal criticism, fit only for insignificant things of mere domestic concernment, pervaded the opinions of the great judges of England in a matter closely affecting her international honor and foreign peace. It needs only to read the report of this trial to see how absurd is the hypothesis of the English Case and Counter Case, in arguing, that any question of peace and war, between Great Britain and other governments is to be determined according to the provisions of that act, and that in such a transcendent question the British ministers are under the necessity of floundering along in the flat morass of the meaningless verbosity and confused circumlocution of any act of Parliament. Well may Sir Robert Phillimore speak of "its loose phraseology and disjointed sentences." Well might Baron Channell say of the language of the act, "more imperfect or faulty wording I can scarcely conceive." We cannot understand by what strange perversion of reason it is that the British Government continues to maintain that its ministers were compelled to drift into the condition of foreign war rather than break free from the entanglement of the cobweb meshes of that act.

2

But, in fact, its inefficiency has been unequivocally admitted by the enactment, on the part of Great Britain, of the foreign-enlistment act of 1870, and by the official inquiry which preceded the passage of that

act.

Its comparison be tween the British and American acts

II. With similar sacrifice of the principal to the incident, and of the large to the minute, the British Government insists that the British act of 1819 is equal in efficiency to the American act of 1818. It is strange enough that the British Govern- Just. International Law, vol. i, p. 466.

2 Documents annexed to American Case, vol. v, p.

440.

ment should make this suggestion in the presence of the documents contained in the appendix to the British Case, in which appears the report of the British minister at Washington, Sir Frederick Bruce, on the subject of the foreign-enlistment act of the United States, pointing out in detail the plain superiority of the American to the British act.'

The great difference between the two consists in the cardinal fact that the provisions of the British act are merely punitive, and to be carried into effect only by judicial instrumentality; whereas the American act is preventive, calls for executive action, and places in the hands of the President of the United States the entire military and naval force of the Government, to be employed by him, in his discretion, for the prevention of foreign equipments and foreign enlistments in the United States.

Thus deficient, the British act was valueless, except as, if occasion should arise, to make it serve as a pretext to cover, in diplomatic communication with other governments, indifferent, unfriendly, or hostile animus on the part of some British minister. In other respects, however, that is to say, in the narrow limits of its own theory of municipal legislation, the British act is utterly inferior to the American act. Sir Frederick Bruce clearly shows the numerous traits of superiority in the American act.2

Thus, in the United States, the Government not only derives aid in the administration of the law from the officers of the customs, who in Great Britain are the sole dependence in this respect, but it has local officers in the principal ports, both administrative and executive, whose action it commands; it may impose bonds of good behavior on the owner of suspected vessels; informers are entitled to a share of forfeitures, and the judicial proceedings have advantages not to be found in the British

act.

All these things are trivial when considered in relation to the great international questions of neutrality, and of peace or war. But we are compelled to discuss such trivialities by the extraordinary persistence of the British Government in basing its defense on the very defects of its act of Parliament.

The Government of the United States has always been anx ious to possess legis lative powers suffi cient for the performance of its duties as a neutral.

III. Of these differences between the American and the British acts, and of the singular deficiencies of the British act, the explanation is at hand. It is to be found in what English writers themselves delicately describe as the prejudices of Great Britain, or which can better be described as indisposition to appreciate fully the rights of other governments. The United States encountered the question of their own right of sovereignty in the matter of foreign equipments and foreign enlistments, and the relation of that matter to their own peace and the rights of other governments, at the very commencement of their career as a sovereign State. They were placed, at the very outset, in presence of the state of universal warfare produced by the French revolution, being exposed especially to the extreme exigencies of France and of England. They adopted a foreign policy of peace and neutrality. They determined, if possible, not to be drawn into the vortex of war, which had swallowed up Europe and all European America. The Case of the United States has related with fidelity and with all due amplitude the measures, administrative and legislative, adopted by the American Government, under

Appendix to the British Case, vol. iii, p. 67.

Lord Clarendon. says Mr. Buchanan, in one of his dispatches, referred to our neutrality law of April 20, 1818, in terms of high commendation, and pronounced it superior to their own, especially in regard to privateers. (App. Am. Case, vol. iv, p. 69.)

the inspiration of President Washington, to maintain the rights of neutrality, in spite of aggression on both sides, which at length compelled the United States, in the defense of its neutrality, to encounter even war, first with France and afterward with Great Britain.1

Among these measures was the enactment of that act for the prevention of foreign enlistments and naval equipments, which, in all the steps of the present controversy, the British Governme nt itself cannot refuse to honor and applaud, and which in the process of time it imitated in its own domestic legislation.

The American Government, sincerely professing neutrality, spared no honorable steps to give effect to its professions and to demonstrate its good faith. Of its own initiation it amended its legislation, when defects therein became apparent to its observation; and it willingly accepted suggestions of amendment from friendly and unfriendly foreign powers. And it has steadily adhered to the doctrine of that legislation.

The American Government has introduced such amendments more than once at the suggestion of Great Britain, not deeming it wise in the sense of its own interests, or just toward other governments, to stand obstinately, as Great Britain has done in like circumstances, on confessedly defective legislation of neutrality, and scorning to pretend that to do justice to such suggestion would be in derogation of the sovereign dignity of the United States.

The British Government alleges that on a recent occasion the American Government indicated purpose to repeal or materially weaken its foreign-enlistment act. That is an error. Every member of the Congress of the United States has the right to initiate measures of legislation. No exclusive right in this respect belongs to the President, (that is, the executive Government.) The President of the United States has not proposed the repeal or the diminution of the American neutrality act. A member of the House of Representatives did propose some amendments to that act tending to weaken its force; but his proposition was not inspired by the Executive, and was not adopted by Congress.

Not only in its legislative measures, but in its diplomatic intercourse with other governments, the United States diligently and sedulously pursue the policy of neutral right, and especially the immunity of the ocean, by exerting themselves on all fit occasions to introduce these principles into its treaties with other governments. D. Carlos Calvo calls attention to a "curious document" published by the minister of marine of the French Empire, in 1854, which enumerates some, but not all, of the treaty stipulations of this class initiated by the United States.? We find this document in Pistoye et Duverdy's Traité des prises maritimes, tome ii, p. 492, and cite some portions of it to show the estimation in which the neutral faith and the neutral diligence of the United States have been held in France:

Les journaux de France et d'Angleterre (says the document,) d'après ceux des ÉtatsUnis d'Amérique, parlent d'officiers russes envoyés à New York avec la mission ostensible de surveiller la construction de bâtiments à hélice pour le compte de leur gouvernement; mais en réalité, afin d'organiser dans les ports de l'union, au moyen de lettres de marque délivrées au nom du gouvernement russe aux citoyens américains, des armements en course contre le commerce français et anglais pendant la guerre devenue imminente entre la France et l'Angleterre d'une part, et la Russie de l'autre. Le Morning Post rappelait récemment, à ce sujet que le droit conventionnel et la législation des Etats-Unis leur faisaient un devoir d'empêcher, et, au besoin, de punir de tels actes d'hostilité contre le pavillon d'une puissance en paix avec l'union. Ce journal citait même quelques traités dans lesquels l'acceptation que des citoyens américains feraient de lettres de marque étrangères pour courir sus aux navires de la puissance cosignataire, est assimilée à la piraterie et rendue passible du même traitement. On va donner

1 Cauchy, Droit maritime, tome ii, p. 236 et seq.

2 See Calvo's Derecho Internacional, tome ii, p. 181.

ici la nomenclature, aussi complète que possible, des conventions conclues par les EtatsUnis, et dans lesquels ce principe a été formellement consacré.

The document then refers to the American foreign-enlistment acts, and continues: Le gouvernement américain a déjà eu l'occasion de montrer qu'il était décidé à remplir loyalement les obligations internationales qui lui sont imposées par cette législation. En 1838, lors du blocus des ports du Mexique et de la République Argentine par nos forces navales, le ministère de France, à Washington, ayant eu lieu de craindre qu'on armât dans les ports de l'union des corsaires munis de lettres de marque des gouvernements du Mexique et de Buenos-Ayres pour courir sus aux navires français, avait appelé sur cet objet l'attention du cabinet américain. Le secrétaire d'État, M. Forsyth, lui donna l'assurance que de tels armements, s'il s'en faisait, ne seraient point tolérés.

C'est à quoi le gouvernment fédéral ne se croirait sans doute pas moins essentiellement obligé, si l'on tentait aujourd'hui d'organiser, dans les ports américains, un systeme de course, sous pavillon russe, contre le commerce de la France et de l'Angleterre. Il suffisait, tout porte à le croire, de signaler de semblables projets à sa vigilance, pour qu'il s'empressât de prendre des mesures aussi promptes qu'efficaces, dans le but d'assurer la complète exécution des lois en vigueur. Le gouvernnmet qui, en 1823, proposait à l'Angleterre et à la Russie de conclure une convention pour déterminer, sur les bases les plus libérales, les droits des neutres en temps de guerre, et notamment pour la suppression de la course maritime, acte dont la France venait de prendre l'initiative à l'occasion de la guerre d'Espagne, ce gouvernement-là, disons-nous, ne peut qu'être disposé à conformer, en ce qui dépendra de lui, sa politique et sa conduite au sentiment honorable qui le portait alors à considérer comme opportun de "revendiquer et rehabiliter les lois de l'équité naturelle, et d'étendre en mer l'influence bienfaisante des préceptes de la charité chrétienne." (Note adressée par M. Middleton, ministre des ÉtatsUnis, à Saint Pétersbourg, au comte de Nesselrode, le 5 décembre, 1823.)

late on the subject.

IV. In singular contrast with this policy of the United States has been the policy of Great Britain. She, one of the oldest Disinclination of maritime states of Europe, had no legislative prohibitions of Parliament to legisprivate maritime equipment for hostile purposes, until long after such legislation existed in the United States. How did this happen? We may conceive the reasons of this, when we reflect upon the numerous piratical enterprises fitted out in former times in ports of Great Britain against the possessions of Spain in America, and the honor accorded to the chiefs of those expeditions, such as Drake and Hawkins; and when we reflect further that British legislation, in this respect, only commenced when most of the Spanish colonies in America had made themselves independent of Spain.

But, even then, it required all the official and personal authority of Mr. Canning, and of the government of which he was a member, to overcome the vis inertia of the prejudices in this relation so deeply rooted in the mind of Great Britain.

In reading the debates in the British Parliament on occasion of the passage of the act of 1819, it is notable, first, that the opposition to the enactment seemed to be absolutely unconscious of all those principles of international morality involved in the question; and secondly, that the opposition seemed incapable of looking beyond Spain and Spanish America, taking no thought of the duties of Great Britain toward other governments of Europe, and toward the United States.1

It is most interesting to see how, on this occasion, Mr. Canning towered above the other debaters, what clear perception he exhibited of the philosophy of the question, and what distinct knowledge of the true principles of international law, in contrast with the shallow arguments of even so eminent a person as Sir James Mackintosh.

Four years afterward the debate was resumed in Parliament, on a motion made by Lord Althorpe for the repeal of the foreign-enlistment act. On that occasion Mr. Canning again distinguished himself by the courage, the eloquence, the statesmanship, and the elevation of view, with which he combated the prejudices of his countrymen. He referred

1 See Hansard's Parliamentary Debates, vol. xl, passim.

to the United States in language which every American may read with pride, and which is pertinent to the present line of observation on the part of the counsel of the American Government.

And, unfortunately for the good understanding of Great Britain and the United States, the British Government is not yet fully emancipated from servitude to the traditional national prejudices which obstructed Mr. Canning. For, as the Case and Counter Case of the British Government show, it still lags behind the United States in appreciation of the true principles of public law, which lie at the foundation of the relations of independent sovereign States.

Legislation of other countries.

V. The British Case, in strange misapprehension of the facts, assumes that municipal laws for the preservation of neutrality exist only in the United States and Great Britain. Meanwhile the report of the English neutrality laws commission, contained in the appendix to the British Case, exhibits in detail the legislation of this class adopted by most of the governments of Europe.

Distinction be.

In the British Counter Case, it is true, the foreign laws of this class are at length recognized, but with refinements of imaginary distinction, which tend to leave some doubt in the mind whether the Counter Case does, or does not, admit the error of the Case. The Counter Case does not seem, even now, to see clearly that all these laws, whatpreventions ever be the diversity of form or of nomenclature among and punishment. them, are pervaded by one identical idea, namely, the prevention as well as punishment of acts of private persons, such as the enlistment of soldiers or mariners, or the expedition of men-of-war, or of letters-of-marque, in derogation of the local sovereignty, and tending to involve the local government in war with other governments.

tween,

Sir Robert Phillimore, himself a member of the commission, expresses the identity of theory and object in this relation between the laws of the United States and Great Britain, and those of other governments, as follows: "It appeared from evidence laid before the English neutrality laws commission, appointed by the Queen in 1867, (the recommendations of whose report are mainly incorporated in the present and recent statute,) that European States generally were furnished by their municipal law with the means of fulfilling their international obligations in this respect." 1

But the indirect or implied retraction in the British Counter Case does not relieve us from the necessity of examining the legislation of other governments, and their executive action in the premises, because that examination will show that the general conscience of the world rejects the theory of the British Government, and conforms to that of the United States.

(a) We commence with scrutiny of the actual legislation of France, because that legislation is the model of the modern legislation, in this respect, of many other governments.

France.

The provision of the French Code Pénal is as follows:

ARTICLE 84. Quiconque aura, par des actes non approuvés par le gouvernement, exposé l'état à une déclaration de guerre, sera puni du bannissement; et, si la guerre s'en est suivie, de la déportation.

ARTICLE 85. Quiconque aura, par des actes non approuvés par le gouvernement, exposé des Français à éprouver des représailles, sera puni du bannissement.

The general commentaries we make on these two articles will apply to similar provisions of law of other governments.

1 International Law, vol. i, p. 467.

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