Note B.–Extracts from various debates in the Parliament of Great Britain referred to in the foregoing argument.
I.—The Foreign-Enlistment Act of July 3, 1819.
Debates in Parliament on the passage thereof.
In the House of Commons, 15th May, 3d, 10th, 11th, and 21st June, 1819. (See Hansard’s Parliamentary Debates, first series, vol. xl, pp. 362–374, pp. 867–909, pp. 1084–1117, pp. 1118–1125, pp. 1232–1285.)Foreign Enlistment Act of July 3, 1819.
In the House of Lords, 28th June, 1819. (See ibid., pp. 1317–1416.)
On May 13, 1819, the Attorney General moved for leave to bring in a bill to prevent enlistments and equipments of vessels for foreign service. He said:
“He wished merely to give this country the right which every legitimate country should have, to prevent its subjects from breaking the neutrality existing toward acknowledged states, and those assuming the power of any states. It was in the power of any state to prevent its subjects from breaking the neutrality professed by the Government, and they were not to judge whether their so enlisting would be a breach of neutrality or not.” (Pp. 362, 363.)
He said further:
“The second provision of this bill was rendered necessary by the consideration, that assistance might be rendered to foreign states through the means of the subjects of this country, not only by their enlisting in warfare, but also by their fitting out ships for the purpose of war. It was extremely important for the preservation of neutrality, that the subjects of this country should be prevented from fitting out any equipments, not only in the ports of Great Britain and Ireland, but also in the other ports of the British dominions, to be employed in foreign service. The principle in this case was the same as in the other, because by fitting out armed vessels, or by supplying the vessels of other countries with warlike stores, as effectual assistance might be rendered to a foreign power as by enlisting in their service.” (P. 364.)
Sir James Mackintosh, opposing the bringing in of the Bill, said:
“It was impossible to deny that the sovereign power of every state could interfere to prevent its subjects from engaging in the wars of other states, by which its own peace might be endangered, or its own interests affected. His Majesty could command his own subjects to abstain from acts by which the relations of the state with other states might be disturbed, and could compel the observation of peace with them.” (P. 366.)
Lord Castlereagh, favoring the bringing in of the Bill, said:
“It now became us to adopt a measure by which we might enforce the common law against those whose conduct would involve us in a war, and to show that we were not conniving, as we were supposed, with one of the parties.” (P. 369.)
Leave was given to bring in the Bill. (P. 374.)
On June 3, 1819, the Attorney moved the second reading of this Bill, and said:
“Such an enactment was required by every principle of justice; for when the state says, ‘We will have nothing to do with the war waged between two separate powers,’ and the subjects in opposition to it say, ‘We will, however, interfere in it,’ surely the house would see the necessity of enacting some penal statutes to prevent them from doing so; unless, indeed, it was to be contended that the state and the subjects who composed that state might take distinct and opposite sides in the quarrel. He should now allude to the petitions which had that evening been presented to the house against the bill; and here he could not but observe that they had either totally misunderstood or else totally misrepresented its intended object. They had stated that it was calculated to check the commercial transactions and to injure the commercial interests of the country. If by the words ‘commercial interests and commercial transactions’ were meant ‘warlike adventures,’ he allowed that it would; but if it were intended to argue that it would diminish a fair and legal and pacific commerce, he must enter his protest against any such doctrines. Now, he maintained, that as war was actually carried on against Spain by what the petitioners called commercial transactions, it was the duty of the house to check and injure them as speedily as possible.” (P. 875.)
Mr. Denman, opposing the bill, said:
“He was perfectly at a loss to conjecture by what ingenuity the honorable and learned gentleman could torture this argument into a denial of the power of the sovereign and the legislature.” (P. 877.)
[Page 232]On June 10, 1819, the Attorney General moved the order of the day for going into committee on this bill.
Sir James Mackintosh, opposing the bill, said:
“The right honorable gentleman had observed that such a measure as the present had been introduced by the Government of the United States and acceded to by Congress. The United States, said the right honorable gentleman, concluded a treaty with Spain, and Congress passed an act to carry that treaty into effect. And why did they do so? Because, though the common law in England was sufficient for the required purpose, in America it was not. The power of making war and peace was not vested in the President of America as it was in the King of England. In America, therefore, a legislative act was necessary. But as His Majesty’s proclamation of 1817 was still in force, how could any legislative measure be necessary in this country?” (P. 1094.)
Mr. Canning, supporting the bill, said:
“The house had to determine, first, if the existing laws of the country would enable her to maintain her neutrality; secondly, if the repeal of those laws would leave the power of maintaining that neutrality; and thirdly if both the former questions were negatived, whether the proposed measure was one which it was fit to adopt.” (P. 1104.)
He said further:
“Was there, he would ask, anything incompatible with the spirit of liberty in enabling a government to lay such a restraint on the action of its own subjects as might insure the observance of perfect neutrality toward two belligerents? If there was, how happened it that the honorable and learned gentleman approved so cordially of the proclamation of 1817? In that proclamation, which was the only public act of the British government on the subject, a spirit of strict impartiality had been exhibited. Contemplating the character of that proclamation, what right had any man to infer that the feelings and opinions of government had undergone a change on the subject?” (P. 1104.)
He said further:
“It surely could not be forgotten that in 1794 this country complained of various breaches of neutrality (though much inferior in degree to those now under consideration) committed on the part of subjects of the United States of America. What was the conduct of that nation in consequence? Did it resent the complaint as an infringement of its independence? Did it refuse to take such steps as would insure the immediate observance of neutrality? Neither. In 1795, immediately after the application from the British government, the legislature of the United States passed an act prohibiting, under heavy penalties, the engagement of American citizens in the armies of any belligerent power. Was that the only instance of the kind? It was but last year that the United States passed an act, by which the act of 1795 was confirmed in every respect, again prohibiting the engagement of their citizens in the service of any foreign power; and pointing distinctly to the service of Spain, or the South American pro vinces.” (P. 1105.)
He said further:
“If a foreigner should chance to come into any of our ports and see all this mighty armament equipping for foreign service, he would naturally ask, ‘With what nation are you at war?’ The answer would be, ‘With none.’
“‘For what purpose, then,’ he would say, ‘are these troops levied, and by whom?’ The reply of course must be, ‘They are not levied by government; nor is it known for what service they are intended; but, be the service what it may, government cannot interfere.’ Would not all that give such a foreigner a high idea of the excellence of the English constitution? Would it not suggest to him that for all the ordinary purposes of a state there was no government in England? Did the honorable and learned gentleman not think that the allowing of armaments to be fitted out in this country against a foreign power was a just cause of war?” (P. 1106.)
He said further:
“It was the doctrine laid down by the English government itself that was now on its trial. This country was now called upon to say whether it would act on its own asserted principles. Those acts, which the bill under the consideration of Parliament tended to repress, were acts which in the document put forth by England forty years ago were termed a ‘manifest breach of the law of nations.’” (P. 1107.)
On June 11, 1819, Lord Castlereagh, in answer to an inquiry made in the debate on the bill, said: “That His Majesty’s government had issued a prohibition against the exportation of arms or warlike stores to Cuba, or any of our West India islands, for the purpose of being sent to the service either of the provinces in insurrection, or of those continuing within the allegiance of Spain. They had taken precautions to guard against our own islands being made the means of thwarting the views of the parent state.” (P. 1124.)
On June 21, 1819, the order of the day being for the third reading of the Foreign Enlistment bill, Sir W. Scott, supporting the bill, said:
“It was quite unnecessary for him to argue that it was just and proper to preserve a strict neutrality between a country and its colonies, when that country was bound to [Page 233] us in the ties of amity, by existing treaties. When he said a strict neutrality, he meant a neutrality which consisted in a complete abstinence, not only from absolute warfare, but from the giving of any kind of assistance to either one side or the other.” (P. 1232.)
He said further:
“There could be no solecism more injurious in itself, or more mischievous in its consequences, than to argue that the subjects of a state had a right to act amicably or hostilely with reference to other countries, without any interposition of the State itself. It was hardly necessary for him to press these considerations, because all the arguments that he had heard on the subject had fully admitted that it was the right of States, and of States only, to determine whether they would continue neutral or assume a belligerent attitude—that they had the power of preventing their subjects from becoming belligerent, if they pleased to exert it. In the next place, it was fully admitted that the government of this country possessed that right, which was essential to its safety and sovereignty.” (P. 1233)
Mr. Robert Grant, supporting the Bill, said:
“Why, Sir, what sort of neutrality is this, which, while it operates only as a more subtle sword of annoyance against the passive party, throws an impenetrable ӕgis over the assailant? A neutrality which completely protects the aggressions of the power who has stipulated to observe it, while it leaves the power to whom the stipulation has been given, only tenfold more exposed and defenseless. Let the matter next be tried on a somewhat broader ground. Every government, in its foreign relations, was the representative of the nation to which it belonged, and it was of the highest importance to the peace of nations that government should be so considered. Nations announced their intentions to each other through the medium of their rulers. Hence every state knew where to look to expressions of the will of foreign nations, where to learn whether war or peace was intended, where to demand redress for injuries, and where to visit injuries unredressed. But all this system was inverted and thrown into confusion, if the government might act in one way and the nation in another. All this system was at an end if, while we were professedly at peace with Spain, she was to be attacked by a large army of military adventurers from our own shores, a sort of extra-national body—utterly irresponsible, utterly invulnerable, except in their own persons—for whose acts no redress could be demanded of the British government—who might burn, pillage, and destroy, then find a safe asylum in their own country and leave us to say, ‘We have performed our engagements—we have honorably maintained our neutral character.’” (P. 1243.)
He said further:
“It was, besides, to be remembered, that an exact precedent for the present measure was supplied by the act to which the honorable gentleman opposite (Mr. Scarlett) had referred: the act for preventing the exportation of arms and ammunition without the royal license. There, as here, the Crown possessed a prerogative by the common law, and there, as here, you added facilities for the exercise of that prerogative by statute.” (P. 1250.)
When the House divided, there appeared, ayes, 190; noes, 129.
On June 28, 1819, upon his motion to commit the bill, Earl Bathurst, supporting the bill said:
“The supplying belligerents with warlike stores, and equipping vessels for warlike purposes, were also prohibited. With respect to this part of the bill, he had heard no objection from any quarter. The evils experienced in commerce from vessels roaming over the seas, under unknown and unacknowledged flags, had been too generally felt to suppose that British merchants would be much dissatisfied with the regulations provided by this part of the bill.” (P. 1380.)
He said further:
“Looking, then, to the principles and grounds of general policy, he would say: that he should scarcely look for any other definition of a state incapable of maintaining the relations of peace and amity with other powers than this, that its subjects made war at pleasure upon states with whom their government was at peace, and without any interruption from that government to their pursuits. And yet such had been for some time the actual situation of this country.” (P. 1380.)
He said further:
“What would the British merchants, who petitioned against this bill, say if they saw expeditions sailing from French ports to attack the sources of our commerce in every quarter of the world? He was afraid we should not be much benefited by its being left to the option of French officers to engage on either side, according to their individual opinions.” (P. 1383.)
Lord Holland, opposing the bill, said:
“As an argument in favor of the present bill, the noble lord has said, that if it was not passed we could not preserve our neutrality. Now, he (Lord Holland) would, on the contrary, maintain, that the existing laws were sufficient for that purpose. He [Page 234] would even run the hazard of standing up for the prerogative in this case against the noble lord.” (P. 1391.)
He said further:
“A sovereign might he called upon by one belligerent party, with whom he was in alliance to prevent his subjects from entering into the service of its enemy so as to be employed against it. The sovereign might issue his proclamation prohibiting his subjects from enlisting; and if they did so after that proclamation, they would be guilty of a high misdemeanor and might be punished accordingly. But this was all that a belligerent state could ask. It could not demand from the sovereign a change in the municipal laws of his dominions, or a modification of them, to suit its convenience. The noble earl had said: ‘Look to the United States, and see what they have done;’ but he had not adverted to the difference between the power of the executive in this country and the American Union. The President of the United States had not the power, like the sovereign of England, of making peace and war; and, therefore, as the executive had not the right of enforcing peace, a foreign state had the right of demanding a law from the legislature to prevent war. The example of the United States was, therefore, no precedent for us, where the prerogative already possessed the right which a particular law was there requisite to confer.” (P. 1391.)
The bill on this day went through the committee.
II.—LORD ALTHORP’S MOTION FOR THE REPEAL OF THE FOREIGN ENLISTMENT ACT.
Debate in the House of Commons, on the 16th day of April, 1823. (See Hansard’s Parliamentary Debates, second series, vol. viii, pp. 1019–1059.)Motion to repeal the Foreign Enlistment Act.
Mr. Canning, opposing the motion, said:
“Sir, the act is divided into two plain and distinct parts; the one pro prohibiting British subjects from entering into the military service of belligerent states; the other forbidding the fitting out of privateers for the service of those states, in British ports, with British means and money, or which are to be manned with British seamen.” (P. 1052.)
He said further:
“If I wished for a guide in a system of neutrality, I should take that laid down by America in the days of the presidency of Washington and the secretaryship of Jefferson. In 1793 complaints were made to the American Government that French ships were allowed to fit out and arm in American ports for the purpose of attacking British vessels in direct opposition to the laws of neutrality. Immediately upon this representation the American Government held that such a fitting out was contrary to the laws of neutrality; and orders were issued prohibiting the arming of any French vessel in American ports. At New York, a French vessel fitting out was seized, delivered over to the tribunals, and condemned. Upon that occasion the American Government held that such fitting out of French ships in American ports, for the purpose of cruising against English vessels, was incompatible with the sovereighty of the United States, and tended to interrupt the peace and good understanding which subsisted between that country and Great Britain. Here, sir, I contend, is the principle of neutrality upon which we ought to act. It was upon this principle that the bill in question was enacted.”(P. 1056).
He said further:
“While we declare ourselves neutral, let us avoid passing the strict line of demarkation. When war comes, if come it must, let us enter into it with all the spirit and energy which becomes us as a great and independent state. That period, however, I do not wish to anticipate, and much less desire to hasten. If a war must come, let it come in the shape of satisfaction to be demanded for injuries—of rights to be asserted—of interests to be protected—of treaties to be fulfilled. But, in God’s name, let it not come on in the paltry pettifogging way of fitting out ships in our harbors to cruise for gain. At all events, let the country disdain to be sneaked into a war. Let us abide strictly by our neutrality, as long as we mean to adhere to it; and by so doing we shall, in the even of any necessity for abandoning that system, be the better able to enter with effect upon any other course which the policy of the country may require.” (P. 1057).
When the House divided there appeared for the motion, 110; against the motion, 216.
III.—THE AFFAIR AT TERCEIRA.
Debate in the House of Commons on the 28th of April, 1830. (See Hansard’s Parliamentary Debates. New Series, vol. xxiv. pp. 126–214.)Terceira.
The resolutions before the house were as follows:
“That prior to the 12th of December, 1828, Her Majesty the Queen, Donna Maria II, had been recognized by His Majesty, and the other great powers of Europe, to be legitimate Queen of Portugal; and that at the period above named the said Queen was [Page 235] residing in this country and had been received by His Majesty with the accustomed honors of her royal rank.
“That on the said 12th of December the island of Terceira, part of the dominions of the Queen of Portugal, was governed by authorities, civil and legal, in allegiance to Her Majesty.
“That on the said 12th of December instructions were given by the Lords Commissioners of the Admiralty, stating that a considerable number of Portuguese soldiers and other foreigners were about to sail in transports from Plymouth to Falmouth, and it is supposed they intend making an attack on Terceira or other of the Western Isles; and His Majesty having been pleased to command that a naval force should be immediately dispatched to interrupt any such attempt, you are hereby required and directed to take ship and sloop named in the margin under your command and to proceed with all practical expedition to Terceira; and having ascertained that you have succeeded in reaching that Island before the transports alluded to, you will remain yourself at Ongra or Praia, or cruising close to the island in the most advisable position for intercepting any vessels arriving off it, and you will detach the other ships as you shall deem best for preventing the aforesaid force from reaching any of the other islands.
“That on the arrival of the naval force sent to Terceira, in pursuance of these instructions, the commanding officer found that island in possession of, and governed by, the authorities above mentioned.
“That in the beginning of January, 1829, a number of Portuguese subjects or soldiers of her said Majesty, voluntarily left this country with a view of repairing to the said island, and that their departure and destination were known to His Majesty’s Government; that they appear to have embarked and sailed in unarmed merchant-ships, to have been unaccompanied by any naval force, and themselves without any arms or ammunition of war.
“That these unarmed merchant-ships and passengers were prevented by His Majesty’s naval forces, sent for the purpose, from entering the harbor of Porto Praia; and that after they had been fired into and blood had been spilled they were compelled, under threat of the further use of force, again to proceed to sea, and warned to quit the neighborhood of Terceira and the rest of the Azores, but that they might proceed wherever else they might think proper.
“That the use of force in intercepting these unarmed vessels, and preventing them anchoring and landing their passengers in the harbor of Porto Praia, was a violation of the sovereignty of the state to which the Island of Terceira belonged; and that the further interference to compel those merchant-ships or transports to quit the neighborhood of the Azores was an assumption of jurisdiction upon the high seas neither justified by the necessities of the case nor sanctioned by the general law of nations.” (Pp. 126, 127).
During the debate Mr. Secretary Peel, speaking against the resolutions, said:
“The next question for consideration was the character of the expedition, and his right honorable friend contended that, going unarmed from our shores, the refugees were not to be considered as a military body, and that their conduct was no breach of our neutrality. Was it then to be contended that no expedition was a military expedition except the troops had their arms on board the same vessels with them? If they were on board one vessel, and their arms in another, did that make any difference? Was such a pretense to be tolerated by that common sense to which the Honorable Baronet had appealed,” (P. 198.)
He said further:
“Arms were already provided for them at Terceira; the men were proceeding thither for the purpose of using the arms, and no person could for one moment doubt what was the real nature and character of the expedition.” (P. 198.)
He said further:
“It was not necessary, he believed, further to discuss the question whether the expedition were or not a breach of our neutrality; and conceiving that it was, the next question which required to be settled was, whether or not we were justified, after the expedition had left our ports, in preventing it from reaching the place of its destination. On that point, he thought, a complete answer to the statement of his right honorable friend who opened the debate, had been given by his right honorable friend who sat near him. The Portuguese refugees and their leaders had throughout been guilty of the grossest deception toward the British Government. It had been such as to justly subject them to the treatment they had received.” (P. 200.)
He said further:
“Were the Government of this country to allow itself to be deceived in the way these refugees had deceived it, the ports of England would be selected by all the discontented people of Europe to fit out and prepare expeditions against their governments; or even expeditions to plunder and devastate other countries. It might be true that we had no right to punish the Portuguese for their fraud, but we had a right to prevent them profiting by their fraud, particularly when doing what might have [Page 236] involved us in a contest with another power on account of the breach of our neutrality committed by these people.” (P. 200.)
He said further:
“Neutrals shall not suffer themselves or their possessions to be made instrumental in doing injury to other nations. There is no law of nature or of nations—no obligation of justice—which condemn us to be the dupes of those who would lead us into such wrong. That was the doctrine he would apply to the present case—we were not to be made the dupes of these people, to commit wrong against another power. But the consequences, he believed, of such proceedings, did we permit them, would be fatal to ourselves. If we supported or allowed fraud we should have no remedy but to submit to it when our own rights were in question. If we allowed one hostile expedition to be prepared. within our territory, ten years would not elapse, to use the remarkable words of Mr. Canning in the debate on the Alien Bill, ‘before this country will be made the work-shop of intrigue, and the arsenal of every malcontent faction in Europe.’ Placed, as this country is, on the confines of the Old World and the New, possessing such facilities in her manufactures and in her natural advantages, and above all, in her free institutions, for the purposes of hostility, it becomes her to watch with the narrowest scrutiny that the facilities she affords are not abused to her own injury.” (P. 201.)
He said further:
“He remembered that when he was sitting by the side of Mr. Canning, as his colleague in office, that it was stated by that right honorable Gentleman, shortly before the Alien Act was brought forward, and when Ministers were considering of the propriety of abandoning it altogether, that information had been obtained, and he knew it to be correct, that the Spanish constitutionalists—the martyrs to liberty, as the honorable baronet called them—had resolved to foment internal disorders in the dominions of Spain. Mr. Canning stated in the House that he did not allow a day to elapse, after learning this fact, without notifying to the persons carrying on these intrigues that ‘the Government would not allow them to desecrate the asylum they had chosen for their protection,’ and at the same time he gave information to the Governor of the Spanish province threatened by these machinations of what was going on. Mr. Canning said that it was ridiculous to suppose that if we authorized such a line of conduct we should not have to pay the penalties of hostility. For the interest and peace of this country—not less than for the interest and peace of other countries—he enforced on all those who resided here the strictest neutrality. ‘God knew,’ he said, ‘when we should see the end of the prevailing agitation, when the struggle of opinions would terminate; and no man could wish for it more than he did; but he claimed these bills in order that we might not be fooled, gulled, bullied, cheated, or deceived into hostilities into which we never intended to enter.” (P. 201.)
He said further:
“As long as England remained at peace, she might be an asylum to the unfortunate, a refuge to the distressed, and a retreat to those who were weary and heavily laden, where they might lay down their burden and be at rest. But to maintain our independence, to preserve the power of being this place of refuge, it was necessary, to use the words of Mr. Canning, that ‘we should not be fooled, gulled, bullied, cheated, or deceived into hostilities;’ and m order to prevent such a result, he hoped the house would join with him in rejecting the resolutions which had been proposed, and which were neither more nor less than a severe censure on the conduct of those who had prevented England from being cheated into hostilities.” (P. 202.)
Mr. Huskisson, speaking in favor of the resolution, said:
“But having evaded our laws, we had no right to punish them; we might have some authority over them as long as they were within our jurisdiction, but the complaint made against them proved that they had escaped beyond the limits which the laws of nations recognized as the limits of our power.” (P. 208.)
When the House divided there appeared for the motion 78; against it, 191; majority, 113. (P. 213.)
IV—THE FOREIGN ENLISTMENT ACT OF AUGUST 9, 1870.
Debates in Parliament on the passage in the House of Commons, 1st, 3d, 4th, and 5th August, 1870. (See Hansard’s Parliamentary Debates, third series, vol. cciii, pp. 1365–1381, pp. 1502–1513, pp. 1550––1556, p. 1592.)Foreign-enlistment act of 1870.
In the House of Commons, 8th August, 1870. (See ibid., pp. 1676–1680.)
On 1st August, 1870, on the order for the second reading of the bill, The Attorney General, Sir R. P. Collier, said:
“I think, however, the house will agree that, upon the breaking out of this unexpected and most calamitous war, Her Majesty’s Government would have been very much to blame if they had delayed for a single day to introduce this measure.” (P. 1367.)
He said further:
“I now come to deal with the question of the equipment and fitting out of vessels, [Page 237] with respect to which there has been so much litigation. To this section of the old Act a very important addition has been suggested by the Commissioners, to the effect that it should apply not merely to the arming and equipping, but to the building of a ship. That recommendation was made by all the Commissioners, with the exception of my honorable and learned Friend the Member for Oxford, (Mr. Vernon Harcourt,) for whose authority I have the greatest respect, although I think that he, in the present instance, was wrong, and that the majority of the Commissioners were right. If such a provision were contained in the existing act, the Alabama could not have escaped and the Alexandra must have been condemned. It obviously is very unsatisfactory for a Government to be aware that a vessel is being built for a belligerent, to know her destination, to have to wait day after day till she is completed, and then one fine morning to find that she is gone. Now, that has more than once occurred, and it is desirable that it should not occur again. There is also a provision in this section which touches the case of the mere dispatches of a vessel, and a clause containing a provision to the effect that if it is shown that a vessel has been ordered to be built for a belligerent, and is supplied to that belligerent and used for warlike purposes, that shall be held to be prima-facie evidence that she was built for the warlike service of the belligerent, unless the innocent destination of the vessel can be established. In a provision of that kind there is, I apprehend, no hardship.” (P. 1368.)
He said further:
“I have now to call attention to a very important power which we propose to give by the bill. It is the power which it confers on the Secretary of State, on his being satisfied that a vessel is being built or equipped for the service of a foreign belligerent, and is about to be dispatched, to issue his Warrant ordering her to be seized and detained, which Warrant is to be laid on the Table of the House. It is further provided that the owner of a vessel may apply to the Court of Admiralty for her release, which he may obtain if he satisfies the Court that her destination was lawful, and not only may he obtain her release but damages for her retention. In order to prevent any hardship, there is, moreover, a provision that the Admiralty shall release the vessel on a bond being given that she is not to be employed on any illegal adventure. There is another provision in respect to which the Bill, I admit, goes beyond the recommendation of the Commissioners. It gives power to the local authorities named in it to seize a vessel if they have reason to suppose she is about to escape, but then they will have to report immediately the seizure to the secretary of state, who will be empowered at once to release her should he be of opinion that there were not sufficient grounds for the seizure, and assuming the vessel to have been seized without reasonable cause, and released by the Secretary of State, the owner will be entitled to claim damages for the detention. These are the provisions by which we propose to attain the object which we have in view, and to render extremely difficult, if not almost impracticable, the escape of any such vessel as the Alexandra or the Alabama in future.” (P. 1369.)
Mr. Stavely Hill, supporting the bill, said:
“It was very necessary to prevent the recurrence of what happened during the American War, when this country was made a starting point for a ship of war which, as had been aptly remarked, was an expedition in itself.” (P. 1372.)
Mr. Vernon Harcourt, supporting the bill, said:
“The present law for enforcing neutrality was utterly insufficient. No one could dissent from Lord Russell’s description of the case of the Alabama—that it was a scandal to the law of this country, and that the persons who were concerned in that disastrous fraud upon the laws of this country committed one of the most unpatriotic acts of which an Englishman had ever been guilty.” (P. 1374.)
He said further:
“But he would venture to say, what he was sure would be confirmed by his honorable and learned Friend the Member for Richmond, (Sir Roundell Palmer,) and by the Vice-President of the Council, both of whom were members of the Commission, that the opinion of that body was that what was required was to extend and enlarge the preventive power of the law rather than to aggravate its punitive provisions. There were two objects—to prevent the offense, and to punish it when committed. The use of punishment was small save so far as it would act as a deterrent.” (P. 1374.)
He said further:
“He regretted that the punitive clauses, which, in certain states of public feeling, could not be carried out, had been multiplied, and that the strength of the Bill had not been thrown into the preventive clauses.” (P. 1375.)
He said further:
“The Attorney General had stated that it was his intention to strike out clause 11, which was intended to prevent the hospitality of their ports being extended to vessels that had illegally left that country, on the ground that he thought its object would be better carried out by means of a regulation to be enforced by the Executive. He (Mr. Vernon Harcourt) entirely agreed with the necessity that existed for the enforcement of some such regulation, because he believed that had the Alabama been excluded from our ports after she had escaped from this country the difficulties that had arisen [Page 238] between this country and America, in reference to that vessel, Would have been avoided.” (P. 1378.)
Mr. Rathbone, supporting the bill, said:
“In the name of the mercantile community, he thanked the Government for introducing this Bill, which only carried out the policy which the ship-owners of Liverpool pressed on the Government of the day very soon after the escape of the Alabama.” (P. 1380.)
Viscount Bury said:
“He could not agree with the honorable Member (Mr. Bourke) in regarding this as an inopportune moment for bringing forward this Bill. The fact that war was raging on the Continent was no reason for not amending our municipal law in points where this was notoriously defective. It was ridiculous to say that a builder did not know that the vessel he was building was for war purposes; and it was a less evil that the shipbuilding interest should suffer a little than that the whole nation should be involved in difficulties.” (P. 1381.)
On 3d of August, 1870, upon the order for committee on the bill, the solicitor-general, Sir J. D. Coleridge, said:
“It would not occur in one case out of a thousand that the builder of a ship would have the smallest difficulty in proving what his contract was and under what circumstances it was undertaken.” (P. 1510.)
He said further:
“The object of the clause was to prevent the escape of suspected ships from the harbors of the kingdom till the secretary of state had been communicated with. The clause gave an ad interim power of seizure.” (P. 1512.)
The Attorney General, Sir R. P. Collier, said:
“The object was to give power to any officer who saw a ship about to escape to prevent such escape.” (P. 1512.)
The Attorney General said further:
“The officers named would be able to seize a vessel without special instructions, in order that such vessel might not be allowed to escape. It was a most important power but it was only to be used in case of emergency, and if any wrong was done by the seizure there would be compensation.” (P. 1512.)
Mr. Whalley said:
“He wished to ask, was such stringent legislation in practice in any country of the world?”
The Attorney General said:
“The clause was copied from the merchant-shipping act, which had been in force for twenty years without any complaint.” (P. 1512.)
On the 4th of August, 1870, the bill being under consideration, the Attorney General, Sir R. P. Collier, said:
“He would propose to omit clause 11. This clause provided in effect that no war vessel employed in the military or naval service of any belligerent which should have been built, equipped, fitted out, armed, or dispatched contrary to this enactment should be admitted into any port of Her Majesty’s dominions.” (See the Report of the Commission, documents with the United States Case, vol. iv, p. 82.)
Mr. Dickinson said:
“He hoped this would not be done, otherwise vessels corresponding with the Alabama could be succored in cur colonial ports.”
The attorney-general said:
“He had to explain that, although the royal commissioners made a recommendation to the effect of this clause, they did not intend that it should be embodied in an act of Parliament, but that it should be carried out under the Queen’s regulations. The governor of a colony would, under this clause, have to determine whether a ship entering his ports was illegally fitted out or not; and this was enough to show the object the commissioners had in view could not be carried out by an act of Parliament. It was intended, instead, to advise colonial governors of the escape of any illegally-fitted vessel.”
Clause struck out. (P. 1555.)
Mr. Candlish said:
“He wished to call attention to clause 21. It provided that any custom-house officer might detain a suspected ship, so that the power would be vested in a tide-waiter who received, perhaps, 18s. a week. This was an extraordinary power to vest in such hands, and he would propose that the power should be only exercised by the chief officer of customs in any port of the United Kingdom.” The honorable member concluded by moving his amendment. (P. 1555.)
Amendment proposed, in page 8, line 7, “to leave out the word ‘any,’ and insert the words ‘the chief,’” (Mr. Candlish) instead thereof. (P. 1556.)
Mr. Alderman Lusk said:
“He questioned the propriety of giving so much power to custom-house officers of the lower class, as was proposed by this bill to confer on them.”
[Page 239]The attorney-general, Sir R. P. Collier, said:
“Those officers of customs were, in fact, the police of ports and harbors. No more power was conferred on them by the bill than was already exercised by every parish constable throughout the kingdom. If the power of acting under the bill were confined to the chief officer of customs, as was proposed, it might happen that in a case of emergency that officer would be absent, and serious inconvenience would be the result. I he principle of the clause was in operation in the merchant-shipping act and in all the prize acts. He quite admitted that the issue was more important than any that could be raised on the merchant-shipping act, but it was because it was more important that greater restrictions should be used. The great thing was to prevent the departure from our ports of any ships of the Alabama character.”
“Question. That the word ‘any’ Stand part of the bill” put and agreed to, Amendment negative. (P. 1556)
On the 8th of August, 1870, the House of Lords, being in committee on the bill, Viscount Halifax said:
“He had refrained from entering into any explanation of the object and provisions of the bill on occasion of the second reading, on account of the small attendance which could be expected at a Saturday sitting, but he would do so very shortly. The bill repealed the existing law, re-enacting it with such improvements as experience had shown to be desirable. It prohibits subjects of Her Majesty, without license from the Crown, from taking any part in hostilities between two countries with which Her Majesty was on friendly terms. He need not adduce arguments to show how unjustifiable and monstrous it would be for British subjects to take part in hostilities, when the avowed policy of the government was that of perfect neutrality; but it was a question not of international, but of municipal law—not between this country and foreign countries, but between the Crown and the subjects of the Crown. A similar law existed in the United States, while, on the continent, governments were able to prevent their subjects from violating neutrality. The principal objects of the bill were to prohibit any subject from enlisting or inducing others to enlist in the service of a belligerent power, and from fitting out, equipping, or arming any vessel for such service, During the American war, the powers of the government in this matter were found to be insufficient. In the case of the Alabama, that vessel left this country before the order of the government, issued as soon as they had sufficient evidence before them, reached the port; she left our port as an unarmed ship, and only received her armament at sea, beyond our jurisdiction, so that no blame could attach to the government; and in the case of the Alexandra and of the rams, proceedings before legal tribunals resulted in a proof that the government had not sufficient power in the matter. They were therefore glad to buy the rams in order to avoid any difficulty. This detect would be removed by the present bill, which was based on the report of a commission presided over by the late Lord Cranworth, and composed of other distinguished men.” (Pp. 1678, 1679.)
He said further:
“The measure gave power to the secretary of state to detain a suspected ship; as also to local officers at the ports, who would report to the secretary of state, so as to cast on him full responsibility. It embodied all the recommendations of the report with the exception of that relating to the reception of vessels into British ports, and this object could be accomplished by orders in council.” (P. 1679.)
Lord Redesdale “thought the late introduction of this bill was excusable, as the exigency which called for it had only just arisen.” (P. 1680.)
V.—THE TREATY OF WASHINGTON.
In proposing a question in regard to the “Alabama claims,” in the House of Lords, May 12, 1871–(See Hansard’s Parliamentary Debates, hird series, pp 698–701)Treaty of Washington.
Lord Redesdale said:
“The Southern States built and fitted out the Alabama. They ordered and paid for the ship. Their agents took her out of the Mersey, and equipped her in a foreign port, and the injury to the trade of the North was committed by their officers and the crews under their command.” (P. 698.)
On moving an address to Her Majesty in regard to the Treaty of Washington on the 12th of June, 1871, in the House of Lords—(See Hansard’s Parliamentary Debates, third series, vol. ccvi, pp. 1823–1901)—
Earl Russell said:
“These were my words, in December, 1862:
“‘With regard to the claim for compensation now put forward by the United States Government, it is, I regret to say, notorious that the Queen’s proclamation, of the 13th of May, 1861, enjoining neutrality in the unfortunate civil contest in North America has in several instances been practically set at naught by parties in this country.’
“That, at all events, was a fair principle on which to proceed, and the cause came [Page 240] to a point which, may fairly he considered by the arbiters. Mr. Laird undertook to build a vessel for the confederate government. Mr. Adams complained that it was building, and that it was intended to be fitted out and equipped for the confederates. I replied, as I believe any secretary of state would have done, ‘We must refer this to the board of customs and see whether they can obtain evidence by which the owners can be convicted.’ It was referred to the legal advisers of the board, and on the 1st of July I was able to inform Mr. Adams that the board held there was not sufficient evidence that the ship was fitted out with the view of making war upon the commerce of a power on friendly terms with Her Majesty, and accordingly I deemed myself unable, on that statement, to direct a prosecution.” (P. 1831.)
“On the 23d of July, Mr. Adams informed me that additional evidence had been procured that the ship was equipped so as to be fitted for warlike purposes, for he had obtained the evidence of a man named Passmore, who said it had been proposed to him by the captain of this vessel, ‘290,’ that he should go to sea with him and make war on the commerce of the United States. That evidence was at once submitted to the law-officers of the Crown, who, on the 29th, informed me that there was a case for detaining the vessel and instituting a prosecution. On that very morning, however, she escaped, and it remains a question which may fairly be submitted to any arbitrators, whether I was justified or not, on the 24th or 25th, seizing the ship, afterward well known as the Alabama. Mr. Adams stated in one of his letters that sufficient promptitude had not been used; but Sir Roundell Palmer, speaking on the 27th of March, 1863, said:
“‘The United States Government have no right to complain if the act in question (the foreign-enlistment act) is enforced in the way in which English laws are usually enforced against English subjects—on evidence and not on suspicion; on facts and not on presumption; on satisfactory testimony and not on the mere accusations of a foreign minister or his agents.’ [3 Hansard, clxx, 47.] That remark, moreover, had been quoted by a noble and learned lord opposite (Lord Cairns) when the Alexandra ease was argued, and Sir Roundell Palmer at once adopted it, and said he still held the same opinion. It is, therefore, a very fair question for the arbitrators, whether those five days between the 24th and 29th were lost by want of due diligence, whether the law-officers were entitled to take the time for considering the matter; and whether an order to detain the vessel should have been at once sent down.” (P. 1831.)
During the same debate, Earl Granville said:
“We were in this position—that we were bound by the act; but the American Government were not bound in the least in regard to the future, and I defy any one to say there is any country which has a greater interest than we have in escaping such depredations as were committed by the Alabama. We have agreed to principles which we think are just and right; we have agreed to arbitration to settle details by arbitration, and we have agreed that our subsequent legislation shall be judged by them. According to the treaty, we are to be liable to the consequences of not using ‘due diligence.’ The obligation to use ‘due diligence’ implies that the government will do all in its power to prevent certain things, and to detain vessels which it has reasonable ground for believing are designed for warlike purposes.” (P. 1850.)
“There is one proposal which was made by my noble friend (Earl Russell) so late as last year. After quoting the opinion of an individual who took a very strong part in the controversy, he said:
“‘It appears to me that if the officers of the customs were misled, or blinded by the general partiality to the cause of the South, known to prevail at Liverpool, and that a prima-fatie case of negligence could be made out’—[not an ascertained case after due inquiry and investigation]—‘Great Britain might fairly grant a sum equivalent to the amount of losses sustained by the captures of the Alabama.’
“That passage occurred in the introduction of the noble earl to his published speeches.” (P. 1850.)
During the same debate, the Earl of Derby said:
“The matter is one on which I hardly like to trust to the recollection of the moment, but I do not think that any one who has been concerned in these negotiations, however much he may have justified the conduct of the government of the day, denied that the escape of the Alabama was a regretable proceeding.”
During the same debate Lord Cairns said:
“In the first article the duty of the neutral is qualified in this way. The neutral is ‘to use all diligence to prevent the fitting out, &c., of any vessel’ it has reasonable ground to believe is intended to carry on war against a belligerent. I want to know why these words ‘which has reasonable ground to believe’ are not repeated in the second rule. Why is the phraseology so entirely different in the first and second parts of the clause? The only explanation hitherto given us is that given by the president of the council, who says that the charge against us is that we did not use that due diligence which was incumbent upon us as neutrals. But the words ‘due diligence’ occur in the first part of the clause just as much as they do in the second; and if due diligence is enough, and would prevent the question arising as to whether you had reasonable [Page 241] ground for believing, why should they not be sufficient in the first part as well as in the second? But the question would be one of the first to arise under the second part of the clause. When you urge that you had no reasonable ground for believing that a vessel leaving your ports was intended to cruise or carry on war against a power with which you were at peace, it may be said that you ought to have known it and would have known it if you had used due diligence. Therefore, I think it most important that, through what I may call an oversight on the part of those who constructed this clause, those qualifying words which were our only protection were omitted from the second part.” (P. 1887.)
He said further:
“Any one of your lordships who considers the sentence will see that the point turns upon the words ‘due diligence;’ a neutral is bound to use ‘due diligence.’ Now the moment you introduce those words, you give rise to another question, for which I do not find any solution in this rule. What is the standard by which you can measure due diligence? Due diligence by itself means nothing. What is due diligence with one man, with one power, is not due diligence with another man, with a greater power. Now this becomes much more important when you introduce in connection another, consideration. The rule I have read is to be a rule of international law, and if there is one thing more clear than another in international laws, it is this, that as between two countries, it is no excuse where an international obligation has been broken for one country to say to another that its municipal law did not confer upon its Executive sufficient power to enable it to fulfill its international duty.” (P. 1888.)
During the same debate, the Lord Chancellor, Lord Hatherley, said:
“In the first place, it was well said that there is no correlative connection between international and municipal law in the abstract; that a foreign nation has nothing to do with the municipal law of another nation, but has a right to meet a statement that in any country with which it has dealings there exists no such law as would prevent the acts complained of, with the reply that it ought to have such a law, and that international law alone must settle the question between them—this being the line taken by the United States in reference to the Alabama.” (P. 1890.)
The Marquis of Salisbury said:
“We have not been told what is to be the standard of ‘due diligence’ for us. A neutral will now be bound to adopt a system of espionage in order to ascertain whether any vessel is intended for a hostile cruise. It will be bound to increase its police, that it may have full information of all such undertakings. It will be bound to interfere with its subjects, to make minute inquisitions, to take an enormous number of costly and laborious precautions which before this treaty it was not bound to take.”
On the 29th June, 1871, in the House of Lords, in reference to a motion for an Address to Her Majesty in regard to the Treaty of Washington, (see Hansard’s Parliamentary Debates, third series, vol. ccvii, pp. 729–741,) Earl Granville said:
“On the one hand, nothing is so easy as to prevent a vessel of the Alabama class escaping from our shores; and the only loss to the country which would result from such a prevention would be the small amount of profit which the individual constructing and equipping the vessel might derive from the transaction, which in almost every case is contrary to the proclamation of the Queen.” (P. 741.)