Papers Relating to the Foreign Relations of the United States, Transmitted to Congress with the Annual Message of the President, December 2, 1872, Part II, Volume III

III.—General discussion of questions of law.

June 10, 1872.

We arrive, now, in sequence of the foregoing exposition of the origin, history, and nature of the pending controversy between the United States and Great Britain, to statement of the reclamations of the American Government against the British, comprised in the Treaty of Washington, and explanation of the grounds of public law on which those reclamations are founded, and in view of which the United States ask the judgment of this High Tribunal.

The principle of these reclamations is fully set forth in the Case and Counter Case submitted by the United States.

But a summary restatement thereof is necessary here in order to give completeness to the present Argument, so that it shall constitute a connected and logical résumé of the whole controversy between the two Governments.

I. The United States maintain, as matter of fact, that the British Government was guilty of want of due diligence, that is, of culpable negligence, in permitting, or in not preventing, the construction, equipment, manning, or arming, of confederate men-of-war or cruisers, in the ports of Great Britain or of the British colonies; that such acts of commission or omission, on the part of the British Government, constituted violation of the international obligations of Great Britain toward the United States, whether she be regarded in the light of the treaty friend of the United States, while the latter were engaged in the suppression of domestic rebellion, or whether in the light of a neutral in relation to two belligerents; that such absence of due diligence on the part of the British Government led to acts of commission or omission, injurious to the United States, on the part of subordinates, as well as of the ministers themselves: and that thus and therefore Great Britain became responsible to the United States tor injuries done to them by the operation of such cruisers of the Confederates. That is to say, to adopt in substance the language of the treaty of Washington, the United States maintain as fact—.Contentions of the United States in regard to the failure of Great Britain to maintain neutrality.

First, that the British Government did not use due diligence to prevent the fitting out, arming, or equipping within its jurisdiction of every vessel which it had reasonable ground to believe was intended to cruise or carry on war against the United States, and also did not use like diligence to prevent the departure from its jurisdiction of every vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use.

Secondly, that the British Government did permit or suffer the Confederates to make use of its ports or waters as the base of naval operations against the United States, or for the renewal or augmentation of military supplies or arms, or the recruitment of men, for the purpose of war against the United States.

Thirdly, that the British Government did not exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violation of its aforesaid obligations and duties as respects the United States.

II. The United States further maintain that, it appearing as fact that Great Britain did fail to fulfill all her duties as aforesaid toward the United States, (Article VII,) thereupon and thereby, in virtue of the Treaty of Washington, and of the express compacts therein contained, Great Britain is bound by reason of her liability arising from such failure (Article X) to pay to the United States a sum, in gross or on assessment, for all the reclamations referred to this Tribunal, or such amount or amounts on account of said liability according to the extent thereof as decided by the Tribunal.Responsibility resulting from such failure.

III. The United States find, on inspection of the Treaty of Washington, that Great Britain has submitted to this Tribunal “all the said claims” of the United States “growing out of the acts” of the confederate cruisers aforesaid, (Article I,) without limitation, qualification, or restriction; and that, in pursuance of such general submission, this Tribunal is to examine and decide, by the express compact of the treaty, “all questions” which shall be laid before it on the part of the Government of the United States, as well as that of Great Britain. (Article II.)Scope of the submission.

IV. The United States further find as fact on inspection of the negotiations which preceded the treaty of Washington, that the Secretary of State of the United States declared that the American Government, in rejecting a previous convention, “abandons neither its own claims, nor those of its citizens;”¹ that the claims thus referred to were specifically set forth in a subsequent dispatch of the same minister, as follows:Meaning of the language, “all claims growing out of the acts of the cruisers.”

The President is not yet prepared to pronounce on the question of the indemnities, which he thinks due by Great Britain to individual citizens of the United States for the destruction of their property by rebel cruisers fitted out in the ports of Great Britain.

Nor is he now prepared to speak of the reparation which he thinks due by the British Government for the larger account of the vast national injuries it has inflicted on the United States.

Nor does he attempt now to measure the relative effect of the various causes of injury, whether by untimely recognition of belligerency, by suffering the fitting out of rebel cruisers, or by the supply of ships, arms, and munitions of war to the Confederates, or otherwise, in whatever manner.²

V. The United States farther find as fact that the President, in his annual message to Congress immediately preceding the conclusion of the Treaty of Washington, and which indeed constituted the inducement thereto, spoke as follows:

I regret to say that no conclusion has been reached for the adjustment of the claims against Great Britain, growing out of the course adopted by that Government during the rebellion. The cabinet of London, so far as its views have been expressed, does not appear to be willing to concede that Her Majesty’s Government was guilty of any negligence, or did or permitted any act during the war by which the United States has just cause of complaint. Our firm and unalterable convictions are directly the reverse. I therefore recommend to Congress to authorize the appointment of a commission to take proof of the amounts and the ownership of these several claims on notice to the representative of Her Majesty at Washington, and that authority be given for the settlement of these claims by the United States, so that the Government shall have the ownership of the private claims, as well as the responsible control of all the demands against Great Britain. It cannot be necessary to add that, whenever Her Majesty s Government shall entertain a desire for a full and friendly adjustment of these claims, the United States will enter upon their consideration with an earnest desire for a conclusion consistent with the honor and dignity of both nations.³

VI. We, the counsel of the United States, insist, therefore, that such, n their magnitude, nature, and scope, are the claims submitted to the Tribunal by the express tenor, the spirit as well as the language, of the treaty of Washington, as particularly set forth in the Case and Counter Case of the United States.

To these reclamations the British Government, in its Case and Counter Case, responds:Contentions of Great Britain.

First, taking issue with the United States on the question of imputed negligence, or disregard, in other respects, of the rules of public law laid down in the treaty of Washington.

Secondly, alleging as legal theory, that, in the incidents brought under review, the British Government acted in conformity with, and in obedience to, the provisions of a certain act of Parliament, commonly known as the foreign-enlistment act, and that, by the law of nations, or the public law of Great Britain, the obligations of the British government toward the United States are to be measured in execution by that act of Parliament.

Thirdly, the British Government, in justification or extenuation of its own imputed delinquencies in the premises, adduces certain incidental considerations, derived from the history and jurisprudence of sundry foreign governments, including the Government of the United States.

VI. As to the first of these points, the counsel of the United States propose to exhibit to the Tribunal a complete and authentic analysis of the great body of pertinent proofs contained in the documents annexed by the two governments to their respective Cases and Counter Cases; and to argue thereon that such documents conclusively establish the main fact of the violation by the British Government of the rules of duty stipulated by the treaty of Washington.Proposed course of argument.

VII. As to the second and third of said points, the counsel of the United States will in the sequel submit considerations which, as they conceive, conclusively establish the legal rights of the United States in the premises, notwithstanding such defensive arguments as are adduced by the British Government.

VIII. Preparatory to which, we submit to the wisdom of the Tribunal the following general considerations of law applicable to the defense set up by the British Government.General considerations of law.

1. We maintain, and undertake to prove, that, even if the provisions of the foreign-enlistment act were the measure and limit of the international duties of the British Government in the premises, still, on the facts, there was culpable negligence on the part of Great Britain. The British Government did not do, by way of prevention, or repression, or punishment, all which that act permitted and required.Great Britain guilty of culpable negligence even when measuring its duties by the foreign-enlistment act.

2. But the international duties of Great Britain are wholly independent of her own municipal law, and the provisions of the above-cited act of Parliament do not rise to the height of the requirements, either of the law of nations or of the rules of the Treaty of Washington. That act makes no adequate provision, either of prevention or punishment; and it contains no provision whatever of executive prevention, without which no government can discharge its international obligations, or preserve its own international peace.International duties independent of municipal law.

3. If, as a question of local administration, that act was deficient in powers, it was the international duty of Great Britain, as a government, to pass a new act conferring on its ministers the requisite powers.Defects of foreign-enlistment act.

4. In the domestic institutions of Great Britain, no constitutional obstacles existed to prevent the enactment of such new act of Parliament; for, to affirm the existence of such obstacles would be to deny to Great Britain the capacity and right to subsist in the family of nations as a co-equal sovereign State.They might have been remedied.

In fact, Great Britain has since then, in view of political complications on the continent of Europe, enacted a new act of Parliament, such as she ought before to have enacted, and that on the suggestion of the United States.

5. The British Government throughout argues these questions as questions of neutrality. We deny that they are such; we deny, as hereinbefore stated, that Great Britain had right to interpose herself as a professed neutral between her treaty ally, the United States, and the rebels of the United States. But we place ourselves, at present and in this relation, on the premises of the defensive argument of the British Government. And, standing on those technical premises, the counsel of the United States maintain that the neutrality of a government, as respects two belligerents, is a question of international, not municipal, resort. Its legal relations are involved in the question of the rights of peace and war.These are not questions of neutrality.

Hence, to depend upon punitive municipal laws for the maintenance of international neutrality, is itself neglect of neutral duty, which duty demands preventive interposition on the part of the executive power of the State.

6. Great Britain, therefore, on the narrow and inadmissible premises of her own defense, was legally responsible to the United States for the acts of the cruisers in question, whether as for non-execution of her then existing act of Parliament, which was want of due diligence, or for undertaking to depend on that act, which not only involved want of due diligence, but implied refusal to perform the duties of a neutral.Great Britain legally responsible to United States.

IX. The counsel of the United States will have occasion to refer to some of these points in the sequel, when they come to present, in full and affirmatively, their own views of the international obligations of Great Britain, and of her delinquency in the premises as respects her special obligations toward the United States.Sir R. Phillimore’s authority cited.

Meanwhile, in vindication of the suggestions in this behalf now made by us we submit to the consideration of the Tribunal appropriate extracts from the great work on “International Law,” by Sir Robert Phillimore, of whom it is little to say that, apart from his eminence as a judge and as a statesman, he is facile princeps among the authorities of this class in Great Britain.

We cite as follows:

There remains one question of the gravest importance, namely the responsibility of a state for the acts of her citizens, involving the duty of a neutral to prevent armaments and ships of war issuing from her shores for the service of a belligerent, though such armaments were furnished and ships were equipped, built, and sent without the knowledge and contrary to the orders of her government.

The question to what extent the state is responsible for the private acts of its subjects (civitasne deliquerit an cives?) is one of the most important and interesting parts of the law which governs the relations of independent states.

It is a maxim of general law that, so far as foreign states are concerned, the will of the subject must be considered as bound up in that of his sovereign.

It is also a maxim that each state has a right to expect from another the observance of international obligations, without regard to what may be the municipal means which it possesses for enforcing this observance.

The act of an individual citizen, or of a small number of citizens, is not to be imputed without clear proof to the government of which they are subjects.

A government may by knowledge and sufferance, as well as by direct permission, become responsible for the acts of subjects whom it does not prevent from the commission of an injury to a foreign state.

A government is presumed to be able to restrain the subject within its territory from contravening the obligations of neutrality to which the state is bound.¹

The government of the owner of the captured property may indeed call the neutral to account for permitting a fraudulent, unworthy, or unnecessary violation of its jurisdiction, and such permission may, according to the circumstances, convert the neutral into a belligerent.²

In fact, the maxim adverted to in a former volume of this work is sound, viz, that a state is, prima facie, responsible for whatever is done within its jurisdiction; for it must be presumed to be capable of preventing or punishing offenses committed within its boundaries. A body-politic is therefore responsible for the acts of individuals, which are acts of actual or meditated hostility toward a nation with which the government of these subjects professes to maintain relations of friendship or neutrality.³

The relation of neutrality will be found to consist in two principal circumstances:

1. Entire abstinence from any participation in the war.

2. Impartiality of conduct toward both belligerents.

This abstinence and this impartiality must be combined in the character of a bona-fide neutral.

The neutral is justly and happily designated by the Latin expression in bello medius. It is of the essence of his character that he so retain this central position as to incline to neither belligerent. He has no jus bellicum himself; but he is entitled to the continuance of his ordinary jus pacis, with, as will presently be seen, certain curtailments and modifications, which flow from the altered state of the general relations of all countries in time of war. He must do nothing by which the condition of either belligerent may be bettered or strengthened, quo validior fiat.

It is for him perpetually to recollect, and practically to act upon, the maxim, “Hoslem esse qui faciat quod hosti placet.”⁴

We do not overstate the point when we say that these texts, from such an authority, but recently published, (1871,) and in full view of the present controversy between the two governments, compose, not only a complete answer to the legal doctrines of the Case and Counter Case of Great Britain in this behalf, but affirmation of the larger premises of argument assumed by the United States.

1. Sir Robert Phillimore avers that, so far as foreign States are concerned, the will of the subject is bound up in that of his sovereign.

Now, among the persons who equipped, manned, and armed the cruisers of the confederates in question, were liege subjects of Great Britain.

True it is that these liege subjects of Great Britain were hired to perform the acts in question by rebels of the United States, and the British Government strangely supposes that, because these rebels were citizens of the United States, therefore Great Britain was not responsible for their acts. The argument implies that foreigners in Great Britain are independent of the local jurisdiction. That, of course, is an error. But, if it were otherwise, the British Government would remain responsible for the acts of the Lairds, and all other British subjects, including Prioleau, an American converted into a British subject for the special object of violating the laws of Great Britain, and committing treason against the United States with impunity, under shelter of the flag of Great Britain.

2. Sir Robert Phillimore, at a blow, strikes to the earth the whole fabric of the British Case and Counter Case, in declaring that no government has a right to set up the deficiency of its own municipal law as excuse for the non-performance of international obligations toward a foreign State.

3. He lays down the rule that a government may by knowledge and sufferance, as well as by direct permission, become responsible for the acts of subjects, (including commorant or transient aliens,) whom it does not prevent from committing injury to a foreign State. This proposition is not presented by Sir Robert Phillimore as based on any express treaty stipulation, but as being the doctrine of the law of nations. As such it serves to construe the “due diligence” of the Treaty of Washington.

4. In expounding the proposition of the impartiality requisite in the character of a bona-fide neutral, he declares that such neutrality is violated by any act which betters or strengthens one of the belligerents, or by any act which gratifies one of the belligerents.

It needs only to consider the analysis of the facts hereinafter presented, to see how much the British Government did to strengthen and to gratify the rebels of the United States.

5. Finally, he affirms that if a government, professing neutrality, permits a fraudulent, unworthy, or unnecessary violation of its jurisdiction, such permission may, according to the circumstances, convert the neutral into a belligerent.

That is the position of the counsel of the United States on this point; and it may be shown by signal examples in the previous history of Great Britain, that she herself has acted on this principle with respect to governments which, professing neutrality, did acts to strengthen or favor belligerent enemies of hers.

X. We now proceed to develop more distinctly the nature and basis of the legal theory of the United States in regard to the questions at issue between the two governments.Legal theory of the United States respecting questions at issue.

We commence by laying down a series of propositions, which are, as we conceive, axioms or postulates of the public law of Europe and America.

1. The right to engage in war, and so to become a belligerent, is inherent in the quality of sovereignty.¹Right to make war.

2. We assume, also, that the right to maintain peace and to stand neutral whilst other sovereigns are belligerent, is inherent in the quality of sovereignty.

3. As the right of war and peace is inherent in sovereignty, so is the right to give cause of war to another sovereign.Right to give cause for war.

4. Such cause of war may consist in acts of professed warfare, as the invasion of a foreign country in arms, the reduction of its cities, the military devastation of its territory, the capture of its merchant-vessels, or the armed encounter of its ships of war.What may be cause.

5. Or such cause of war may consist in acts equivalent to professed warfare, as in affording aid to one belligerent against another, such belligerents being each sovereign; or by prematurely conceding the quality of belligerence or of independence to the rebels of another sovereign; or by aiding such rebels in fact, while pretending friendship for their sovereign.

6. True neutrality between belligerents consists in holding absolutely aloof from the war in fact and in truth, as well as in profession. To profess neutrality, and not to observe it, is disguised war.Neutrality.

7. War is by land or sea; and war by sea may consist in combats between ships of war, or in the capture of merchant-vessels and their cargoes.War; what it is.

It is not material to this point that certain of the States of Europe have agreed to abstain from the issue of letters of marque. Even those powers continue to maintain the belligerent right to capture private merchant-vessels and their cargoes, by the agency of men-of-war. The United States have refused to enter into any such agreement, in the conception that it is only adapted to governments which see fit to incur the expense of maintaining a large military marine. The United States have been content to agree with other powers in according immunity from any capture to private property on the sea; but they insist, as they think rightfully, that, if private property is to remain subject to capture, it should be subject to capture by letter of marque as well as by the regular naval forces of the belligerent, letters of marque having the same relation to regular forces in war on the sea, as volunteer levies have to the regular forces in war on land.¹

8. The law of nations, as now practiced, permits the sale of arms by private merchants of the neutral sovereign, and their exportation and transportation for the use of the belligerent, subject to capture as contraband of wary,² although the tendency of modern opinion is to contend that such acts of sale are contrary to the true principles of neutrality.Sales of arms and contraband of war.

Many of the modern regulations of different governments on the subject of neutrality, contained in the documents annexed to the American Counter Case, sustain this view. (See the dispatch of Lord Granville to the Prussian minister of October 21, 1870, on the subject, defending the right of such sales.³)

But it is admitted universally, in theory as well as in practice, that international law does not permit the equipment of men-of-war, or letters of marque, or their re-armament, or the enlistment of men for the military marine of the belligerent, in the ports of the neutral.

9. The pretended neutral, who, as a government, expedites vessels, or with culpable negligence permits the expedition of vessels from his ports, to cruise against one of the belligerents, becomes thereby belligerent in fact, and responsible as such to the injured belligerent.Dispatch of armed vessels.

10. In questions of international peace or war, and in all which regards foreign States, the will of the subject (or of commorant aliens) is merged in that of the local sovereign; that sovereign is responsible if he permits or knowingly suffers his subjects (or commorant aliens) to perpetrate injury to a foreign State; and, apart from other and direct proofs of permission, or knowledge and sufferance, the responsibility for any injury is fixed on such sovereign, if he depend on municipal means of enforcing the observance of international obligations, instead of acting preventively to that end in his prerogative capacity as sovereign.Responsibility of sovereign for violation of neutrality.

11. It is not admissible for any sovereign to plead constitutional difficulties in such an emergency; to do which implies surrender of the rights, as well as abnegation of the power, of a sovereign, and confers on the injured power the right to occupy by force the territory of the incompetent power, and to impose upon his subjects that preservation of order which he professes constitutional inability to preserve.Constitutional inabilities cannot be pleaded in answer to a charge of such violation.

“Culpâ caret, qui scit, sed prohibere non potest” is indeed one of the rules of private right; “but,” says Sir Robert Phillimore, “such an avowal, actual or constructive, on the part of the unintentionally injuring State, justifies the injured State in exercising, if it can, that jurisdiction by foreign force, which ought to be, but cannot be, exercised by domestic law.”¹

12. But no independent State exists, either in Europe or America, encumbered with constitutional incapacity in this respect.

Violations of neutrality are issues of war and peace. Whatever power in a state declares war, or makes peace, has jurisdiction of the issues of peace and war, including, of course, all violations of neutrality.

In point of fact, such authority is not a quality of despotic government only: it belongs equally to the most constitutional government, as appears, for instance, in the political institutions of constitutional republics, like Switzerland and the United States, and in constitutional monarchies, like Italy and Brazil.²

The counsel of the United States submit these propositions as undeniable and elementary truths.

Yet the Case and Counter Case of the British Government assume and persistently argue that the sole instrument possessed by the British Government to enforce the performance of neutral obligations at the time of the occurrences in question, was a particular act of the British Parliament.

Every government in Europe or America, except Great Britain, asserts and exercises authority to prevent its liege subjects (and à fortiori commorant aliens) from doing acts which tend to involve it in a war with any other government.

But the British Government maintains that the sovereign State of Great Britain and Ireland, the imperial mistress of the Indies, the proudest in fame, the richest in resources, and (including her transmarine possessions) the most populous of the great States of Europe, does not possess constitutional power to prevent mercenary law-breakers among her own subjects, or bands of desperate foreign rebels, commorant on her soil, from dragging her into acts of flagrant violation of neutrality, and thus affording, or tending to afford, just cause of war to other foreign States.

And such is the defense of Great Britain in answer to the reclamations of the United States.

13. It would be difficult to find any other example of a great State defending itself against charges of wrong by setting up the plea of its constitutional incompetency and incapacity to discharge the most commonplace duties of a sovereign State.Alleged constitutional inability of Great Britain examined.

Great Britain is not in that condition of constitutional disability which her ministers pretend.

We find, on the most cursory observation of the constitution of Great Britain, that the declaration of war, the conclusion of peace, the conduct of foreign affairs—that all these things are in Great Britain elements of the prerogative of the Crown.

We cannot believe and do not concede that in all these greater prerogative powers there is not included the lesser one of preventing unauthorized private persons from engaging in private war against a friendly foreign State, and thus committing Great Britain to causes of public war on the part of such foreign State.

If the exercise of such power by the Crown involves derogation of the rights of private persons which ministers fear to commit, they should obtain a proper act of Parliament, either for antecedent general authorization or for subsequent protection, all which is within the scope of the theoretic omnipotence of Parliament. The British ministers do not scruple to suspend the privileges of the writ of habeas corpus, whether with or without previous parliamentary authorization, and whether in the United Kingdom or in the Colonies, on occasion of petty acts of rebellion or revolt, that is, the case of domestic war: à fortiori they should and may arrest and prevent subjects or commorant foreigners engaged in the commission of acts of foreign war to the prejudice of another government.

Is it possible to deny or to doubt that British ministers might as well do this as the ministers of Switzerland, Italy, Brazil, and the United States, in like circumstances?

Has the Queen of the United Kingdom of Great Britain and Ireland less executive power than the President of the United States? And if she have less, could not the deficient power be granted to her by act of Parliament, just as readily as similar executive power, in this relation, has been granted to the President of the United States by their Congress?

14. But there is no such deficiency of power in the British ministers; their own conduct in pertinent cases proves conclusively that they have the power, and can exercise it, when they choose, without affording occasion of any serious doubt or denial of the constitutionality of their acts.

Be it remembered that the excuse of the British Government, for omitting to detain the Alabama and other confederate cruisers, was the alleged want of power to act outside of the foreign-enlistment act.

And yet, subsequently to the escape of the Alabama from the port of Liverpool, on occasion of the construction in the ports of Great Britain of certain other vessels for the confederates, commonly spoken of as the Laird rams, the British Government seized them upon its own responsibility in virtue of the prerogative power of the Crown, and so prevented their departure to make war against the United States.

And what the ministers did on this occasion was fully justified in the House of Commons by Sir Roundell Palmer, the then attorney-general of Great Britain, in the following words:

I do not hesitate to say boldly, and in the face of the country, that the government on their own responsibility detained them. They were prosecuting inquiries which, though imperfect, left on the mind of the government strong reasons for believing that the result might prove to be that these ships were intended for an illegal purpose, and that if they left the country the law would he violated and a great injury done to a friendly power. The government did not seize the ships; they did not by any act take possession or interfere with them, hut on their own responsibility they gave notice to the parties interested that the law should not be evaded until the pending inquiry should he brought to a conclusion, when the government would know whether the inquiry would result in affording conclusive grounds for seizing the ships or not. If any other great crime or mischief were in progress, could it he doubted that the government would be justified in taking steps to prevent the evasion from justice of the person whose conduct was under investigation until the completion of the inquiry? In a criminal case we know that it is an ordinary course to go before a magistrate, and some information is taken of a most imperfect character to justify the accused’s committal to prison for trial, the prisoner being remanded from time to time. And that course cannot be adopted in cases of seizing of vessels of this description: the law gives no means for that. And therefore it is that the government, on their own responsibility, must act and have acted in determining that what had taken place with regard to the Alabama should not take place with respect to these ships, that they should not slip out of the Mersey and join the navy of the belligerent powers, contrary to our law, if that were the intention, until the inquiry in progress should be so Tar brought to a conclusion as to enable the government to judge whether the ships were really intended for innocent purposes or not.

The government were determined that the inquiries which they were making should be brought to a legitimate conclusion, that it might be seen whether those inquires resulted in evidence or not of the vessels being intended for the confederates, and that in the mean time they would not permit the ends of justice to be baffled by the sudden removal of the ships from the river.

It is impossible that the case of the government can now be brought before the house: but the government have acted under a serious sense of their duty to themselves, to Her Majesty, to our allies in the United States, and to every other nation with whom Her Majesty is in friendship and alliance, and with whom questions of this kind may be liable hereafter to arise. Under a sense of that duty they have felt that this is not a question to be treated lightly, or as one of no great importance. If an evasion of the statute law of the land was really about to take place, it was the duty of the government to use all possible means to ascertain the truth, and to prevent the escape of vessels of this kind to be used against a friendly power. It was their duty to make inquiries, and to act if there was a good ground for seizure, taking care only to adopt that procedure which was justified by the circumstances.¹

And well might Sir Hugh Cairns say, on that occasion, to the British minister: “Either our Government must contend that what they did in September (that is, in the matter of the Laird rams) was unconstitutional, or they ought to have done the same with regard to the Alabama, and are liable.”

But in truth these extraordinary professions of impotency, on the part of the British Government, are but additional proofs of the negligent spirit of that government in permitting or not preventing the expedition of the Alabama and other vessels, and the perilous consequences of which they had come to appreciate and to shrink from at the time of the arrest of the Laird rams.

15. There is another pertinent example in the modern history of Great Britain of the power of her ministers to arrest such expeditions when they have the desire.

We allude to the celebrated affair of the so-called Terceira expedition.

During the pendency of the civil war in Portugal on occasion of the disputed succession between Donna Maria and Don Miguel, certain Portuguese refugees, partisans of Donna Maria, sailed from England in transports ostensibly destined for Brazil, but, as was suspected, intended for Terceira, in the Azores. It was not pretended that the transports were fitted for war, and the Portuguese on board were unarmed. Nevertheless, the British ministers conceived that the expedition was one in violation of the neutrality of Great Britain.

Whereupon, they dispatched a naval force to pursue these vessels, and to prevent the persons on board from landing, either at Terceira, or at any one of the Western Islands; which was done, and the Portuguese were compelled to leave the waters of the Azores, and to take refuge in France.

It is to be noted that this act of force by Great Britain in the maintenance of her neutrality was done, not in the ports of Great Britain, or in her waters, but on the high seas, or rather within the waters of the Western Islands, and in the actual jurisdiction of a sovereign to whom the Portuguese in question professed and owed allegiance; for Terceira then acknowledged the power of Donna Maria.

No pretense existed here of action in subordination to the forms of the foreign-enlistment act, or any other act of Parliament. What was done, was done simply in virtue of the prerogative power of the Crown.

The conduct of the ministers in this affair was earnestly discussed in both houses of Parliament, and was approved by both houses.

But it is remarkable, and pertinent to the present controversy, that neither in the House of Lords nor in the House of Commons was it maintained that the ministers had on this occasion overstepped the limits of the constitution of Great Britain.

The objection was, that the British Government had itself committed a breach of neutrality, in undertaking to intercept the transports on the high seas, or within the legitimate jurisdiction of one of the belligerents; and that the act was a violation of the sovereignty of the State to which the island of Terceira belonged.

We respectfully submit to this high Tribunal whether it is not idle to pretend that British ministers, possessing the constitutional power to pursue and arrest the Terceira expedition even on the high seas, for violating the neutrality of Great Britain, have no power to prevent, even within the ports of Great Britain, the expedition of men-of-war against the United States.¹ In fine, the British ministers, it is impossible to doubt, had the same constitutional power to arrest and detain the Alabama in the ports of Great Britain, imperial or colonial, as they had to arrest there the Laird rams; and they had the same constitutional power to arrest the Alabama, Florida, Georgia, and other confederate cruisers on the high seas, as they had to arrest there the Terceira expedition.

16. And the existence of this constitutional executive power serves to explain, what otherwise would be to the last degree inconceivable, that is to say, the omission, in the British foreign-enlistment act of 1819, to provide for executive action, as was done in the American foreign-enlistment act.The prerogative power of the Crown.

In the United States, it was necessary to impart such executive powers to the President, because, according to the tenor of our Constitution, it does not belong to the President to declare war, nor has he final and complete jurisdiction of foreign affairs. In all that, he must act by the authority, or with the concurrence, as the case may be, of the Congress, or of the Senate.

In Great Britain, on the contrary, it appertains to the prerogative power of the Crown to declare war and to make treaties, either of belligerent alliance or of peace; and, how much soever in practice it may be customary for ministers to communicate with Parliament on these questions, it is not the less true that, constitutionally speaking, the prerogative power resides in the Crown.

17. The affirmative resolution of the British ministers to call this prerogative power into action for the sole purpose of elevating the rebels of the United States into the dignity of belligerents on a level with their own sovereign, and thus converting piratical cruisers into legitimate cruisers, and the negative resolution of the British ministers, in refusing to call into play the prerogative of the Crown, in order to give effect to their own professions of neutrality, injurious as even such professions were to the United States, in undertaking to place them and their rebels in the same category of international rights,—these two resolutions rendered it possible, as it would not otherwise have been, for the confederates to fit out cruisers in the ports of Great Britain: whereupon ensues responsibility of Great Britain for acts of the Confederates, in which, by false theory of action and negligence in fact combined, she participated to the prejudice of the United States.

1. Mr. Fish to Mr. Motley, May 15, 1869. Documents annexed to Case of the United States, vol. vi, p. 1.
2. Mr. Fish to Mr. Motley, September 25, 1869, Documents as above, vol. vi, p. 13. (See the commentary on these national or (so called) indirect damages by Mr. Abbott, in Lord Clarendon’s dispatch, in Appendix to the British Case, N. A., No. 1, 1870, p. 19.)
3. Papers relating to foreign relations of the United States, December 5, 1870, p. 9.
1. Phillimore’s International Law, vol. i, preface to 2d ed, p. 21.
2. Phillimore’s International Law, vol. iii, p. 228.
3. Phillimore’s International Law, vol. iii, p. 218.
4. Phillimore’s International Law, vol. iii, pp. 201–2.
1. Vattel, Droit des gens, éd. Pradier-Fodéré, tome ii, p. 337, (note.) Cauchy, Droit maritime, tome i, p. 18; tome ii, p. 14. Martens, Droit des gens, éd. Vergé, tome ii, p. 198.
1. See Cauchy, Droit maritime, tome ii, pp. 374 and 404. Idem, Du respect de la propriété privée dans la guerre maritime, passim.
2. Bynkershoek, Questiones Juris Publici, 1. i, c. 22. The “Santissima Trinidad,” Wheaton’s Reports, vol. vii, p. 340. Phillimore, vol. iii, p. 321. Pistoye et Duverdy, Traité des prises maritimes, t. i, p. 394.
3. Documents with the message of President of the United States, December, 1870.
1. Phillimore’s International Law, vol. iii, p. 218.
2. See Appendix to the American Counter Case, cited or commented on hereafter.
1. Documents annexed to the American Case, vol. v, p. 477.
1. See the facts of the Terceira expedition, Phillimore’s International Law, vol. iii, p. 229.