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

IV.—Miscellaneous considerations.

June 10, 1872.

The British Case and Counter Case are largely occupied with matters which are secondary, immaterial, not to say totally irrelevant, in the judgment of the counsel of the United States, but which, being seriously presented by the British Government, seem to require attention.Many irrelevant matters in the British Case and Counter Case.

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

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

It is quite vain for the British Government to assert the sufficiency of the foreign-enlistment act of 1819. Its practical inefficiency was glaringly apparent on the face of all the relative diplomatic correspondence between Great Britain and the United States. The same insufficiency manifested itself in the legal proceedings in the case of the Alexandra in such degree as to throw contempt and ridicule upon the whole act. Quibbles of verbal criticism, fit only for insignificant things of mere domestic concernment, pervaded the opinions of the great judges of England in a matter closely affecting her international honor and foreign peace. It needs only to read the report of this trial to see how absurd is the hypothesis of the English Case and Counter Case, in arguing, that any question of peace and war, between Great Britain and other governments is to be determined according to the provisions of that act, and that in such a transcendent question the British ministers are under the necessity of floundering along in the flat morass of the meaningless verbosity and confused circumlocution of any act of Parliament. Well may Sir Robert Phillimore speak of “its loose phraseology and disjointed sentences.”¹ Well might Baron Channell say of the language of the act, “more imperfect or faulty wording I can scarcely conceive.”² We cannot understand by what strange perversion of reason it is that the British Government continues to maintain that its ministers were compelled to drift into the condition of foreign war rather than break free from the entanglement of the cobweb meshes of that act.

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

II. With similar sacrifice of the principal to the incident, and of the large to the minute, the British Government insists that the British act of 1819 is equal in efficiency to the American act of 1818. It is strange enough that the British Government should make this suggestion in the presence of the documents contained in the appendix to the British Case, in which appears the report of the British minister at Washington, Sir Frederick Bruce, on the subject of the foreign-enlistment act of the United States, pointing out in detail the plain superiority of the American to the British act.¹Its comparison between the British and American acts unjust.

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

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

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

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

III. Of these differences between the American and the British acts, and of the singular deficiencies of the British act, the explanation is at hand. It is to be found in what English writers themselves delicately describe as the prejudices of Great Britain, or which can better be described as indisposition to appreciate fully the rights of other governments.The Government of the United States has always been anxious to possess legislative powers sufficient for the performance of its duties as a neutral.

The United States encountered the question of their own right of sovereignty in the matter of foreign equipments and foreign enlistments, and the relation of that matter to their own peace and the rights of other governments, at the very commencement of their career as a sovereign State. They were placed, at the very outset, in presence of the state of universal warfare produced by the French revolution, being exposed especially to the extreme exigencies of France and of England. They adopted a foreign policy of peace and neutrality. They determined, if possible, not to be drawn into the vortex of war, which had swallowed up Europe and all European America. The Case of the United States has related with fidelity and with all due amplitude the measures, administrative and legislative, adopted by the American Government, under the inspiration of President Washington, to maintain the rights of neutrality, in spite of aggression on both sides, which at length compelled the United States, in the defense of its neutrality, to encounter even war, first with France and afterward with Great Britain.¹

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

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

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

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

Not only in its legislative measures, but in its diplomatic intercourse with other governments, the United States diligently and sedulously pursue the policy of neutral right, and especially the immunity of the ocean, by exerting themselves on all fit occasions to introduce these principles into its treaties with other governments. D. Carlos Calvo calls attention to a “curious document” published by the minister of marine of the French Empire, in 1854, which enumerates some, but not all, of the treaty stipulations of this class initiated by the United States.²

We find this document in Pistoye et Duverdy’s Traité des prises maritimes, tome ii, p. 492, and cite some portions of it to show the estimation in which the neutral faith and the neutral diligence of the United States have been held in France:

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

The document then refers to the American foreign-enlistment acts, and continues:

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

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

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

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

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

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

Four years afterward the debate was resumed in Parliament, on a motion made by Lord Althorpe for the repeal of the foreign-enlistment act. On that occasion Mr. Canning again distinguished himself by the courage, the eloquence, the statesmanship, and the elevation of view, with which he combated the prejudices of his countrymen. He referred to the United States in language which every American may read with pride, and which is pertinent to the present line of observation on the part of the counsel of the American Government.

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

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

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

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

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

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

The provision of the French Code Pénal is as follows:

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

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

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

To the casual reader of them the first idea which suggests itself is their brevity, as compared with corresponding legislation of Great Britain and the United States.

But careful examination shows that they express in plain language the true object and theory of all such laws, which is to punish private persons who undertake acts of war by land and sea, in derogation of the sovereignty and in prejudice of the peace of their country; and that they do it effectually, but in terms of equal terseness and precision.

On the other hand, the English acts are so overloaded with a mass of phrases, alike unprecise and confused, with so much of tedious superfluity of immaterial circumstances, as if they were specially designed to give scope to bar chicanery, to facilitate the escape of offenders, and to embarrass and confound the officers of the government charged with the administration of law. Such indeed has been the ordinary complexion of the legislation of Great Britain, and this style of complex verbosity of legislation has unhappily been transmitted to the United States, although there it begins to encounter steady efforts of reformation, which are conspicuous in the legislation of many of the American States.

These are secondary considerations, however. The important point is, that neither the administrative nor the judicial functionaries of France, nor her legislators and statesmen, ever conceived that the provisions of her penal code were anything more than what they profess to be, namely, the means of punishing the crimes of private persons. Statesmen and legislators of France never imagined that these provisions of the penal code are the measure and limit of her soverign rights or of her sovereign duties. Incidentally those provisions may come in aid of executive action. But to punish individual wrong-doers does not prevent wrong-doing, save incidentally by admonition and example. Punitive legislation is one thing, preventive another; and the only effectual prevention of the wrongful acts of private persons, which tend to compromise the neutrality of a Government, is the summary act of forcible prevention of such deeds by the supreme authority of the Government. Such is the theory of the laws of France in this behalf, as it is of the laws of the United States.¹

This appreciation of the articles of the French Code Pénal is confirmed by authoritative commentaries thereon, some of which are reproduced in the documents annexed to the American Counter Case.

Accordingly, it is to be remembered that no cruisers sailed from the ports of France to depredate, under the Confederate flag, on the commerce of the United States.

At the very commencement, all Frenchmen were forbidden by sovereign act “to take a commission from either of the two parties to arm vessels of war, or to accept letters of marque for a cruise, or to assist in any manner in the equipment or armament of a war-vessel, or privateer, of either of the belligerents.”²

And when attempts were made by the Confederates to construct and equip cruisers in the ports of France, on complaint being made by the minister of the United States, the construction of these vessels was arrested; and when a builder professed that vessels under construction, with suspicion of being intended for the Confederates, were in fact intended for a neutral government, the French ministers required proof of such professed honest intention, and carefully watched the vessels to make sure that they should not go into the service of the Confederates.

On this point we quote the language of the minister of marine, as follows:

The vessels of war to which you have called our attention shall not leave the ports of France until it shall have been positively demonstrated that their destination does not affect the principles of neutrality, which the French Government wishes to rigidly observe toward both belligerents.¹

Contrast this with the conduct of the British Government in like circumstances, as exhibited in the analysis of facts comprised in the present Argument, where it is shown with what incredible credulity the British Government accepted the false and deceptive statements of the criminal and mercenary ship-builders engaged in the violation or evasion of the laws of Great Britain.

It requires exercise of much candor to believe that the British ministers could have permitted themselves to be so grossly imposed upon, if they desired to know the truth. Had they done what the French Government did in like circumstances—if they had required the known tools of Confederates at Liverpool, as might well have been done in virtue of the provisions of the merchant shipping act, and, indeed, of the foreign-enlistment act, to make proof of pretended honesty of purpose,—the present controversy between the two Governments might not ever have arisen.

In like manner the conduct of France, regarding the remanning of Confederate cruisers in her ports, is in striking contrast with the conduct of the British Government in reference to the same subject-matter.

(b) All the observations regarding the legislation of France apply, in substance, to the legislation of Italy,² and the regulations of the Government of Italy, including circulars of the minister of marine, and decrees of the King, all with distinct reference to the present controversy, are comprehensive, definite, and explicit in preventing, as they did prevent, any attempt of the Confederates to fit out cruisers in the ports of Italy, to abuse the right of asylum, or to cruise therefrom against the commerce of the United States.Italy.

All these measures, in form and effect, assumed preventive action by the executive, independently of the penal provisions of the municipal laws of Italy.³

The universality of laws of this class in the various countries of Europe is indicated by recent Italian juridical writers.⁴

(c) In like manner, examination of the laws, regulations, and political action of Switzerland, in the matter of neutrality, shows their conformity in theory with that of the United States, and emphatically contradicts that of Great Britain.Switzerland.

The Code pénal fédéral of Switzerland is in this respect more concise and comprehensive even than that of France, for it inflicts punishment on all persons guilty in Switerland of committing any act contrary to the law of nations.⁵

Various ordinances of the Federal Council contain the most stringent provisions for the maintenance of the neutrality of the republic.⁶

A federal law of Switzerland regulates in the fullest manner, and with all proper restrictions, the enlistment of troops in the territory of the republic for foreign service, providing that it shall not be done without the express permission of the government; and various official reports demonstrate the active efficiency of the federal government in defending its neutrality, not merely by municipal laws, to be executed by the courts, but by the most complete executive action supported by the military force of the republic.¹

(d) Similar conclusions apply to the legislation and the administrative action of the empire of Brazil: in considering which it will be convenient also to refer to the legislation and administrative action of Portugal, because of the similarity of their laws, and the more or less of common commentary thereon by juridical writers in one country or the other, of eminence and authority.Brazil.

The penal code of Portugal in this respect is substantially the same as that of France.²Portugal.

That of Brazil, while comprehending the same idea, is more complete in its development.

By that code it is a crime on the part of any individual to “provoke directly and by acts a foreign nation to declare war against the empire,” or “if in case no declaration of war take place, but in consequence of such provocation there should be necessity for any sacrifice on the part of Brazil, or prejudice of her integrity, dignity, or interests.”

By that code it is also made a crime to “commit, without order or authority of the government, hostilities against the subjects of another nation, so as to compromise peace, or provoke reprisals.”

Furthermore it is declared to be piracy “to practice on the sea any act of depredation or violence, whether against Brazilians, or against foreigners with whom Brazil is not in a state of war.”³

Both in Brazil and Portugal these provisions of the penal code are but incidents only to the executive action, which prevents by supreme authority any violation of their neutrality, either by subjects or by foreigners.

We beg leave to refer this high tribunal to the administrative regulations of the Brazilian Empire, for the enforcement of neutrality in all the ports of the Empire, in the amplest manner, by efficient action on the part of the imperial ministers, and of the provincial presidents.⁴

In the American Case, and the documents to which it refers, there is sufficient indication of the loyalty and efficiency with which the Brazilian Government maintained its sovereignty against the aggressive efforts of the Confederates.⁵

As to Portugal, we refer to the correspondence annexed to the American Counter Case, to show that she also never pretended that her neutral duty was confined to the execution of the provisions of her penal code. She also put forth the executive power of the Crown to prevent, repress, or repel aggressive acts of the Confederates in violation of her hospitality, or in the derogation of her sovereignty. Nay, more, the Government of Portugal, finding its own naval force inadequate to prevent the Confederates from abusing the right of asylum in the Western Islands, expressly authorized the American Government to send a naval force there for the purpose of defending the sovereignty and executing the law of Portugal.⁶

(e) In Spain, the “Codigo Penal,” while repeating the general provision of the French “Code Pénal,” adds the following important specific enactment to punish “any person who without legitimate authorization shall levy troops in the kingdom for the service of any foreign, power, or shall expedite cruisers, whatever may be the object proposed, or the nation against which it is intended to commit hostilities.”¹Spain.

But Spain never pretended that she had any right to plead these provisions of her penal code as excuse for omitting to act preventively by executive power to repress misconduct on the part of the Confederates.²

(f) In regard to the governments of Brazil, Portugal, and Spain, it deserves to be remarked that their respective juridical commentators fully explain the theory of their penal codes as being chiefly valuable to aid in the preservation of the national peace. They rightfully maintain that neither the enlistment of troops in a country for foreign service, nor the equipment of ships of war in their ports for such service, would of themselves, and of necessity, involve any disturbance of the domestic peace. Such acts are not prohibited as being immoral or criminal per se, but only if done in derogation of the local sovereignty and in prejudice of the rights of other governments. That is to say, these laws, although not bearing the title of “Neutrality Laws,” are quite as clearly neutrality laws in fact as the foreign-enlistment acts of the United States and of Great Britain.³

We might extend-these remarks to the legislation of all the other maritime states of Europe.

(g) The penal laws of Belgium and the Netherlands, in this respect, are identical with those of France.⁴Belgium and Holand.

(h) The provision of the penal code of the Netherlands deserves attention because of the very pertinent remarks respecting it made by the Netherlands minister, Mr. Van Zuylen, in reply to the inquiries of the British chargé d’affaires, Mr. Ward.

Mr. Van Zuylen writes as follows:

The Hague,March 6, 1867.

Mr. Ward’s note of the 16th instant, asking information for his government about the laws, regulations, and other means that the Netherlands may use to prevent violation of neutrality within her borders, has been received.

In reply, the undersigned informs Mr. Ward that there is no code of laws or regulations in the Kingdom of the Netherlands, concerning the rights and duties of neutrals, nor any special laws or ordinances for either party, on this very important matter of external public law. The government may use articles 84 and 85 of the penal code; but no legislative provisions have been adopted to protect the government, and serve against those who attempt a violation of neutrality.

It may be said that no country has codified these regulations and given them the force of law; and though Great Britain and the United States have their foreign-enlistment act, its effect is very limited. The Netherlands government has not yet thought proper to collect the regulations in relation to the rights and duties of neutrality; but has always scrupulously observed the principles of the European law of nations, and has published notices (as Great Britain and France did in 1861) to Netherland subjects not to carry dispatches or articles contraband of war, nor to break an effective blockade, nor to engage in privateering, nor accept letters of marque.

The admission of belligerent ships of war into our ports was regulated in the same manner, and the special instructions sent to our colonial governors, during the civil war in the United States, were communicated to the British legation on the 17th December, 1861.

Those notices were more extensive and precise last year. The government undertook to prevent the equipment of war vessels for the belligerents in her ports. A copy of the Official Gazette, March 20, 1866, containing those notices, is hereto annexed.

Articles 84 and 85 of the penal code may he used as coercive measures to prevent violations of neutrality. For example, they might serve to prosecute those attempting to equip or sell vessels of war in our port for the benefit of belligerents. The vessels could then be seized on evidence, and their departure be thus prevented.¹

Mr. Van Zuylen’s language is inaccurate. He obviously intended to express that the Netherlands have no laws known by the name of laws of neutrality, or codified as such. He seems not to have thought that mere penal provisions deserved the name, although he refers to penal provisions, which, as he says, are ancillary, in that sense, to the exercise of the executive power of the government, this being the proper, and indeed the only effectual, agency for the protection of its sovereignty against invasive or evasive acts on the part of belligerents.

The efficiency with which executive power is applied to such subjects in the Netherlands is fully manifested by the pertinent circulars of that government.²

(i) We find similar laws existing in Russia; in Prussia, which had occasion once to apply those laws to the acts of British agents in Prussia: in Denmark, and in Sweden.³Russia and Prussia, Denmark and Sweden.

(j) The documents, which exhibit the legislation and political action of Denmark in this relation, are particularly interesting, because they so clearly show how the penal or punitive laws were merely and simply supplemental to the preventive action of the Government.

6. On review, therefore, of the legislation and political action of Great Britain, as compared with that of all other Governments, we arrive at the following conclusions:Comparative review.

(a) The institutions of Italy, Brazil, Switzerland, France, Spain, Portugal, the Netherlands, and all other Governments of Europe indeed, except Great Britain, expressly assume, as do the institutions of the United States, that volunteer and unauthorized military and naval expeditions, undertaken in a neutral country, are to be restrained, because tending to involve such country in war with the country aggrieved. Infringements of the law are punished mainly for that reason, including the protection of the national sovereignty.

(b) Hence, in all those countries, except Great Britain, the punitive law is a secondary fact; the primary fact being the preventive action of the Government.

(c) The United States perfectly understood this, the true relation of things, and while they indicted persons and arrested ships, they did not, when occasion required action, rely on such merely punitive, or at most auxiliary, means, but called into play the armed forces of land and sea to support the Executive in summary acts of prevention by force for the maintenance not only of the sovereignty but of the neutrality of the Government.

(d) Neither Lord Russell, in his correspondence with Mr. Adams, nor the framers of the British Case, appear to have had any clear conception of these higher relations of the subject, although distinctly and explicitly stated in the best works of international law of Great Britain herself.

(e) Great Britain alone pretends that punitive law is the measure of neutral duties: all other Governments, including the United States, prevent peril to the national peace through, means of prerogative force, lodged, by implied or express constitutional law, in the hands of the Executive.

VIII. We are now prepared to judge whether, in the incidents of the present controversy, the conduct of other governments was, as the British government pretends in answer to the reclamations of the United States, the same as that of Great Britain, and whether Great Britain did all which they did in discharge of international obligations toward the United States.Conclusions.

It is obvious to see that, upon her premises of political action, it was impossible that Great Britain should discharge those duties as they were discharged by other governments.

In point of fact she did not.

(a) Other governments not only prevented the armament of cruisers, but also forbade their construction. For example, France, the Netherlands, Denmark.

(b) Other governments imposed just limits on asylum, and punished its abuse. For example, Brazil, France, Spain, Portugal.

(c) No other government allowed armed cruisers to sail from her ports to prey on the commerce of the United States. She alone furnished the Alabamas and the Floridas, which, by the capture of our merchantmen, gave to the United States cause of national reclamation.

(d) In no other government was the wrong committed of allowing itself, as Lord Russell unequivocally admits, to be subjected to the shame of being the established seat of the military and naval supplies of the Confederates.

IX. Both in the Case and Counter Case of the British government there is elaborate arraignment of the government of the United States, in respect to the manner in which, at various periods of their public history, they have discharged their neutral obligations toward other governments.The history of the United States as a neutral a part of the British pleadings.

We dispute the right of the British government to discuss any such matter before this Tribunal. Great Britain is here accused, not only of violation of neutrality, but of permitting or suffering the active complicity of her subjects with the rebels of the United States. It is no answer to this charge to say that, at some time past, the American Government was, or may have been, delinquent toward some other government. Such an answer is not compatible with reason or justice, but is contrary to both. Nothing is, or can be, on trial before this tribunal, but the conduct of Great Britain. That, and that alone, is submitted by the treaty of Washington. To summon the United States to enter into discussion of its acts toward other governments, which is in effect now done by the British Government, is to call on the Tribunal to pass judgment on imputed acts of the United States which are wholly outside of the questions to be submitted by the two governments, according to the tenor of the Treaty.Its relevancy denied.

The British Case and Counter Case, it is true, introduce these matters professedly as bearing on the inquiry of what is due diligence, by examination of what has been the conduct of the United States under circumstances of alleged similarity to those involved in the present controversy. But these matters are not the less discussed by the British Government in the manner and spirit of counter accusation. And, even as to the specific relation in which the subject is professedly introduced by the British Government, it is not the less utterly irrelevant, valueless as argument, and incapable in any respect of instructing the conscience of this Tribunal.

The two governments have submitted the question of the conduct of Great Britain at a precise period of time and in a specific relation, that of the late domestic rebellion in the United States. That is the definite subject to be investigated and judged by the Tribunal, upon the proofs presented by the two governments. As incidental to this particular subject, is the Tribunal to take up and examine twenty other controversies, each wholly independent of that and of one another, and to determine seriatim each one of them, in order to know how to determine the particular controversy submitted by the Treaty? That would be preposterous as reason, and impossible to be done, as act.

The counsel of the United States must refuse to consent to have drawn in judgment here the past or present relations of their government to France, Spain, Portugal, Mexico, or even Great Britain herself.

Nevertheless, being thus challenged by the British Government, we presume to say that the history of the foreign relations of the United States, in this respect, if it have any pertinency to the present controversy, has such pertinency to the effect of confirming the theories of public law on which the present reclamations of the United States here stand, as maintained in this Argument.

The Tribunal cannot fail to observe, in the first place, that while Great Britain constantly asserts that her duties of neutrality are defined by an act of Parliament, and that her government has no means or power to maintain neutrality, except by the agencies of an act of Parliament, yet during her entire national life, for a period of nearly eight hundred years, she did not possess any such act of Parliament, and, of course, during all that period she neither could nor did discharge her duties of neutrality towards other governments. It would be an unwelcome task to the counsel of the United States, as they well might, to proceed to imitate the British case, and recount all the occasions, even in more modern times, in which it might be charged that by acts of aggressive intervention, by sea and by land, Great Britain has manifested her slight consideration of the proper rights of the other states of Europe, more especially in the class of maritime questions, and of domestic disturbances existing in other states. Are not the works of jurisprudence of all nations full of inculpations of these acts on the part of Great Britain? Has not every maritime state of Europe, one after the other, been forced in self-defense, in these relations, into war with Great Britain?¹

And yet it would be much more pertinent to the present issue thus to scrutinize the political conduct of Great Britain with reference to other governments, than it is to scrutinize that of the United States.

Now, then, while, until the year 1819, Great Britain had no municipal law for the preservation of neutrality, and while she steadily disavows the possibility of using any other means, the United States, on the contrary, almost at the very moment of entering into the family of nations, asserted, and have continued to assert, the right and the duty of every government to act as such politically, and by exercise of supreme executive force to watch over, guard, and maintain its neutrality between contending belligerents. While England professes, as her view of public law, that constitutional governments must of necessity allow themselves to drift continually into war by reason of having no other means to keep peace except an act of Parliament, and that confessedly insufficient,—the United States, on the other hand, have as constantly maintained, and do now maintain, that it is the duty of all governments, including especially constitutional governments, to discharge their neutral duties in obedience to rules of right, independent of and superior to all possible acts of Parliament. In consonance with which doctrine it is that every President of the United States, from President Washington to President Grant, inclusive, has never failed to apply due diligence, voluntarily, sponte suâ,—in the vigilant discharge of his own official duty, not in mere complaisance to foreign suggestion,—by himself or by other officers of the Government, to prevent all unlawful enterprises of recruitment or equipment in the United States.

In proof of these assertions, we proceed briefly to touch on such incidents of the past history of the United States as are (however illegitimately) brought into question here by the British Case and Counter Case.

(a) In regard to our first controversy with Great Britain in this respect, in the time of President Washington, we need do nothing more than cite testimony of Englishmen themselves, to the honor and good faith of the American Government.Neutrality toward Great Britain during President Washington’s administration.

In the first place, Lord Tenterden, in the documents appended to the British Case, admits the good faith and the efficiency of President Washington.

Secondly, Mr. Canning, certainly one of the greatest ministers of Great Britain, on occasion of opposing the repeal of the British foreign-enlistment act, said:

“If I wished,” Mr. Canning said, “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 vessels in American ports. At New York a French vessel, fitting out, was seized, delivered over to the tribunal, 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 sovereignty of the United States, and tended to interrupt the peace and good understanding which subsisted between that country and Great Britain.¹

“Here, sir, (he added,) I contend is the principle upon which we ought to act.”²

Finally, in the midst of the occurrences now in controversy between the two governments, Sir Bounded Palmer spoke as follows in the House of Commons:

“As long ago as 1793, we emphatically insisted that the American Government should not supply France, with whom we were then engaged in hostilities, with vessels of war. We required them to detain those vessels, and Washington did detain them, before any foreign-enlistment act was passed. Washington not only detained the vessels at our instance, but he proposed and carried in Congress the American foreign-enlistment act, as his enemies then said, at our dictation. Precisely the same attacks which are now directed against Her Majesty’s Government in this House were then directed against Washington in Congress. There were members of Congress who said that he was truckling to England and allowing the English embassador to dictate to him; they lamented the humiliation of their country and declared that the stars and stripes had been dragged in the dust. But that great man despised the imputation of cowardice; he was strong enough not to fear to be thought afraid, and in spite of clamor—for there will always be violent and excitable men in all popular assemblies,—Washington pursued the course which he knew to be just, and at the same time best calculated for the interest and welfare of his own country. He passed the foreign-enlistment act, and a treaty was subsequently entered into, stipulating, among other things, for the restoration of prizes captured by vessels that were fitted out in American ports.”¹

The counsel of the United States are for themselves content with their own convictions on this point, but they conceive that the testimony of Mr. Canning, Sir Bounded Palmer, and Lord Tenterden may fitly serve to satisfy this high Tribunal.

(b). The British Case impliedly blames the United States on account of the expedition of Miranda.Expedition of Miranda.

Francisco Miranda, born in the Spanish-American province of Venezuela, had served in the army of France under commission of the National Convention, but was suspended from command, and banished for misconduct at the battle of Nerwinde.² He became besotted with the idea of being the predestined regenerator of his native country, without other capacity or resources than his own extravagant self-conceit. He by some means made himself acceptable to Mr. Pitt, who encouraged him in the idea of getting up an expedition for the invasion of Venezuela.³

Political considerations standing in the way of his doing this in England, he went to the United States, thinking to find there a convenient point of departure. But President Adams steadily repelled his advances, and rendered abortive all his attempts to get up the proposed expedition.⁴ Some years afterward, still favored by Great Britain,⁵ he again appeared in the United States with the same purposes.

He had much of the plausibility, and all the impudence, of that class of cosmopolitan exiles and adventurers. By the exhibition of deceptive letters written by himself to President Jefferson and Secretary Madison—letters, on their face, of mere courtesy—he contrived to impose on credulous persons and obtain aid in New York; for in this case, as in all like cases, fraud and falsehood lie at the bottom of such unlawful enterprises.

Thus he was enabled to organize an expedition and get to sea without knowledge of the Government.⁶

On the way to Caracas he stopped at the English islands of Barbadoes and Trinidad, where he was treated with the utmost consideration by the British officers, civil and military, and where he received from Admiral Cochran, in command of the British West Indies, a written contract of alliance and copartnership under date of June 9, 1806, by the tenor of which Great Britain adopted the expedition of Miranda, and furnished it with additional supplies and vessels.⁷

The expedition landed at Vela de Coro, but failed of success by reason of the deplorable incapacity of Miranda; and he, dishonored by the manifest proofs of the falsehood by which he had imposed upon the adventurers, British and American, enlisted in the expedition, disappeared from public sight. We find him living some time afterward; but we do not find that he ever did any actual service to the patriots of Spanish America.

Some of these adventurers, on their return to the United States, were indicted; but the jury failed to convict, partly in consequence of ingenious sophistries of their counsel, and partly, we think, by reason of the notorious participation of the British naval authorities in the West Indies.¹

We submit that there is nothing in the adventures of this Miranda which reflects discredit on the United States or favors the argument of the British Government.

Whatever responsibility, if any, devolved on the United States in the premises, was long ago amicably settled between them and Spain.

(c) Next the British Case calls attention to the general conduct of the United States in reference to the long-continued hostilities between Spain and her revolted Colonies in America.Revolt of Spanish American colonies.

We confess that we are surprised that Great Britain especially should, in this relation, question the acts of the United States.

The American Government did not hasten at the earliest moment of revolutionary political movement in those Colonies, and before the occurrence of any significant military event whatever, to accord the status of belligerents to the rebels of Spain, as Great Britain did to those of the United States. We waited, as discretion and justice required we should do, until the civil war in Spanish America forced itself upon our attention by incidents in our own ports arising out of captures on the sea, as to which action became requisite on the part either of the Executive or of the courts of the United States.

When that civil war had raged for years, without Spain having succeeded in reducing her rebel subjects to submission, we still abstained from all political action in the premises to the prejudice of Spain, until we had sent informal commissioners to Spanish America to inquire and make report concerning the condition of things there. Even then, before proceeding to definite political action, we deliberated still, and, not without concurrence of opinion at least of Great Britain in this respect, at length we concluded that the revolted Colonies had reached such a condition of sure actual independence as to be fully entitled to be recognized as independent States.

During all this long period, the United States steadily labored to prevent the equipment of vessels in their ports to the prejudice of Spain. The successive Presidents of the United States were positive in instruction to all subordinate officers, and vigilant in observation, to enforce the execution of the laws of neutrality, international as well as municipal. Prosecutions were instituted in the courts; vessels unlawfully captured were restored, by judicial or administrative order; and the principals of neutrality were proclaimed and maintained in every act, whether of the courts or of the Executive.

As to the courts of the United States, we have a right to say that their decisions, during that period, on this class of questions, are now received as authoritative expositions of public law not less in Great Britain, and in other parts of Europe, than in the United States.

As to the deportment of the Executive in the course of these occurrences, we confidently appeal to the mass of official acts and correspondence contained in the documents annexed to the American Counter Case, to prove that the American Government not only did everthing which law required, but did everything which was humanly possible, by preventive vigilance, as well as by punitive prosecution, to discharge the neutral obligations of the United States.

Did the American Government, at any time, or on any occasion, either willfully or with culpable negligence, fail to discharge those obligations? We deny it; although, in the midst of almost continual warfare, both in Europe and America, it is possible that violations of law may have occurred, in spite of all preventive efforts of that Government.

What then? If we did injury to Spain we repaired that injury. The treaty of amity, settlement, and limits between the United States and Spain, of February 22, 1819, disposed of all this subject by mutual concessions, renunciations, or indemnifications, in the following article, namely:

Article IX. The two high contracting parties, animated with the most earnest desire of conciliation, and with the object of putting an end to all the differences which have existed between them and of confirming the good understanding which they wish to be forever maintained between them, reciprocally renounce all claims for damages or injuries which they themselves, as well as their respective citizens and subjects, may have suffered until the time of signing this treaty.

The renunciation of the United States will extend to all the injuries mentioned in the convention of the 11th of August, 1802.

2. To all claims on account of prizes made by French privateers, and condemned by French consuls, within the territory and jurisdiction of Spain.

3. To all claims of indemnities on account of the suspension of the right of deposit at New Orleans, in 1802.

4. To all claims of citizens of the United States upon the government of Spain, arising from the unlawful seizures at sea, and in the ports and territories of Spain or the Spanish colonies.

5. To all claims of citizens of the United States upon the Spanish Government, statements of which, soliciting the interposition of the Government of the United States, have been presented to the Department of State, or to the minister of the United States in Spain, since the date of the convention of 1802, and until the signature of this treaty.

The renunciation of His Catholic Majesty extends—

1. To all the injuries mentioned in the convention of the 11th of August, 1802.

2. To the sums which His Catholic Majesty advanced for the return of Captain Pike from the Provincias Internas.

3. To all injuries caused by the expedition of Miranda, that was fitted out and equipped at New York

4. To all claims of Spanish subjects upon the Government of the United States arising from unlawful seizures at sea, or within the ports and territorial jurisdiction of the United States.

5. Finally, to all the claims of subjects of His Catholic Majesty upon the Government of the United States, in which the interposition of His Catholic Majesty’s Government has been solicited before the date of this treaty, and since the date of the convention of 1802, or which may have been made to the department of foreign affairs of his Majesty, or to his minister in the United States.¹

This high Tribunal perceives that, in view of this treaty, it is vain for the British Case to attempt to revive controversy on the subject. Both Spain and the United States had mutual causes of reclamation, which both governments frankly settled and terminated by amicable convention, to their mutual satisfaction, and on conditions which cannot be questioned by any other government.

One thing more in this relation. We respectfully request the Tribunal to observe that neither Spain nor the United States supposed that damages or injuries done by one government to another were mere indirect damages or injuries, and so not comprehended in the terms of a treaty, expressly professing to dispose of “all claims,” “all questions,” and “all differences.”

Spain and the United States by this treaty “reciprocally renounced all claims for damages or injuries which they themselves, as well as their respective citizens and subjects, may have suffered.” They rightly supposed that a blow struck by one government at another is a direct wrong, sounding in direct damages, and calling for direct compensation, quite as much at least as a blow struck by one government at individual subjects of another government.

(d) The British Case also calls in question the conduct of the United States in reference to the war between Portugal and the Banda Oriental. This matter is thoroughly and exhaustively discussed in the correspondence appended to the American Case. It also receives satisfactory exposition in the Case itself.War between Portugal and the Banda Oriental.

We, therefore, content ourselves here with reference to the voluminous documents annexed to the American Counter Case, which manifest the unceasing efforts of the American Government to prevent its citizens from taking part in that war, or doing any acts prejudicial to the Portuguese Government.

(e) The British Case makes reference to the acts of William Walker, and other adventurers of that sort, who, at a certain period, embarked in expeditions of adventure to Central America.Walker’s expedition.

The United States, in extenuation of the fact that some expeditions of this class escaped the vigilance of the American Government, do not plead either the extent of the coasts of the United States, and consequent difficulty of surveillance, nor the disturbed state of the countries which were the objects of such expeditions, as we might do, but we pass over all that class of considerations to say that the American Government, in these occurrences, exerted all its power, legal and political, to prevent, repress, and punish everything contrary to its duties of neutrality or its rights as a sovereign.

The successive Presidents of the United States acted efficiently in the premises by proclamations to all citizens generally, and by instructions and orders to officers, civil and military; and the Attorney-General of the United States directed the prosecution and secured the conviction of leading offenders; and the naval officers of the United States even proceeded to break up such enterprises by military interposition either on the high seas, or in the ports of Central America, in action not unlike that of the British Government in the affair of Terceira.

We entreat the members of the Tribunal to peruse the documents, in this relation, contained in the appendix to the American Counter Case, to which we confidently point as furnishing complete vindication of the United States in the premises.

(f) We make the same observation as to the alleged absence of due comportment on the part of the United States, either at the present time or heretofore, in reference to the Spanish possessions in Cuba. The documents annexed to the Counter Case, we confidently believe, will satisfy this Tribunal of the rightfulness of the conduct of the United States in this behalf.Cuba.

Here, also, we call attention to signal proofs of the upright spirit and just action of the United States with reference to the rebels of Spain, in contrast with the temper and action of Great Britain with reference to the rebels of the United States.

In the first place, the President of the United States did not jump to make recognition of the belligerence of the Cubans, upon the first rumor of a gun having been fired by or against them; and to this day he has resisted temptation and pursuasion to take that step, moved to abstinence by his own conviction of public duty and right.

Secondly, in case after case, Cubans seeking to fit out vessels in the ports of the United States have been arrested, and their attempts broken up by the executive interposition of the President.

Thirdly, Spain, as the treaty friend of the United States, has not been subjected to the wrong of seeing her rebels raised in the ports of the United States to the level of herself their sovereign; but, on the contrary, has been allowed, as she had a right to do, openly to build or purchase men-of-war in the United States.

Finally, no cruisers have sailed from the ports of the United States to prey on the commerce of Spain. Therefore, if, which we deny, Spain suffered any damages in the premises at the hands of the American Government, those damages must be of the nature which Great Britain regards as indirect damages, and therefore never in any circumstances due from one to another gonernment.

(g) Allusion also occurs, in the British Case or Counter Case, to some occasions in which persons in the United States have invaded, or attempted to invade, the Canadian Dominion.Fenians.

Such occurrences have existed, as they do in all frontier countries. As to the first of them, it deserves to be stated that special provisions of law were enacted to enable the President of the United States more effectually to discharge the duties of the Government toward Great Britain.

In reference to that, and some other occurrences of the same nature, it is well to note the testimony borne by Sir Roundell Palmer in a speech made by him in the House of Commons, already quoted on a particular point, and in which he further says:

I wish to impress upon the House that, as far as the enforcement of their foreign-enlistment act is concerned, we have absolutely no grievance against them, (the United States.) They have again and again restored prizes captured in violation of that act. As recently as the Russian war, in a case where we complained that a vessel called the Maury was fitted out in violation of the foreign-enlistment act, they immediately detained that vessel, her clearance was stopped, and an inquiry was subsequently directed, and that inquiry, conducted entirely to our satisfaction, ended in our expressing a belief that there were no real grounds for the suspicion entertained. In the interest of peace and amity between the two countries, therefore, I wish the House to understand that we have no grievance against them with regard to the foreign-enlistment act, and that it deeply concerns our honor to enforce the foreign-enlistment act.¹

In reference to later incidents of the same class, in which Irishmen in the United States have attempted to invade Canada, we present the testimony of the British minister in the United States, whose dispatch testifies in terms which may fitly close this part of the present Argument, as follows:

Washington, July 13, 1866.

Sir: I have duly reported to Her Majesty’s Government the disturbances that lately took place on the frontiers of New Brunswick and Canada, and the measures taken by the Government of the United States to prevent those expeditions of armed men, in breach of the neutrality laws, from being carried into effect.

I am directed by Her Majesty’s government, in reply, to state that for some months past they have observed with regret, though without alarm, the organization of the Fenians in the United States; but they have invariably abstained from making any official representation to the cabinet at Washington, because they felt they had no right, as indeed they had no desire, to interfere with the administration of the law in the United States. They had, moreover, a perfect conviction that if ever the time came for the fulfillment by the United States of the obligations which international law imposes upon friendly and allied governments, that Government would take all the measures which those obligations and regard for its own honor might call upon it to perform.

Her Majesty’s Government rejoice to find that this confidence has been fully justified by the result, and that the Government of the United States acted, when the moment for acting came, with a vigor, a promptness, and a sincerity which call forth the warmest acknowledgments.

I am, in consequence, instructed to express to the Government of the United States the thanks of Her Majesty and Her Majesty’s Government for the friendly and energetic assistance which they have afforded in defeating the attempts to disturb the peace of Her Majesty’s possessions in North America.

I have the honor to be, with the highest consideration, sir, your most obedient, humble servant,

FREDERICK W. B. BRUCE.

Hon. William H. Seward, &c., &c.¹

We remark, in passing, that in all the cases referred to by Sir Frederick Bruce and Sir Roundell Palmer, of the conduct of the United States in relation to Great Britain, this conduct has been the same at all times in relation to other governments. As we are entitled to the ascription of “a vigor, a promptness, and a sincerity which call forth the warmest acknowledgments,” in the former class of occurrences, so we are in the latter, the British Case and Counter Case to the contrary notwithstanding. In every instance of attempt to violate our neutrality, on the part whether of governments or of private persons, we have set in action all the juridical machinery of the municipal law; we have pushed into vigilance our custom-house officers, which England has, and our district-attorneys and marshals, which England has not; but in addition to and beyond all that, the President of the United States acted in advance to enforce, not diligence only, but active vigilance, on all subordinate officers of the Government; and when wrong-doers manifested obstinate persistence of wrong, the military and naval officers, of character and discretion, like General Scott, Admiral Paulding, and General Meade were employed to apply to such persons the only method of prevention applicable to the case, namely, force, to maintain the domestic order and foreign peace of the Government.

We regret, and have sufficient cause to regret, as the present controversy shows, that Great Britain, who cannot blind herself to the vigor, promptness, and sincerity manifested by the American Government in repressing such acts in America, has not manifested equal vigor, promptness, and sincerity herself in repressing similar acts in Great Britain.

(h) The counsel of the United States would gladly abstain from reference to another occurrence in this class of incidents, because, unlike what has gone before, it is not of a defensive, but of an accusatory character.British enlistments during the Crimean war.

It singularly happens, while Great Britain, in her Case and Counter Case, is so careful to recount what she assumes to be the imperfections of the United States, in the execution of our foreign-enlistment act, heaping up a long train of accusations against us, she forgets that the most serious of all the occasions, in which the United States have been called on to act, was the attempt of Great Britain, to the prejudice of Russia, to violate, on a large scale, the neutrality of the United States. And the occasion is the more remarkable, seeing that the British ministers themselves, with characteristic misconception of the whole subject of neutral rights and duties, procured a special act of Parliament to be passed for the single and precise object of enabling them to invade the sovereignty, and to violate the local laws, of every country in Europe and America.

We allude to the act of Parliament, passed at an early day during the war between Great Britain and Russia, professedly and avowedly to enlist soldiers abroad of its own authority for service against Russia.

We understand how the British ministers fell into the error of thus exposing to the gaze of the world, on this occasion, the difficulty of obtaining troops at home. In former wars, as we in the United States had sad experience, it had been the custom of Great Britain thus to act, at a period of time when the enlistment of foreign troops was a practice all but universal in Europe.

But what we should not understand, but for the false theory which pervades the Case and Counter Case of Great Britain here, is, that the British ministers should have imagined that the rights of Great Britain, as respects all foreign governments, are determinable by an act of Parliament.

On both points British ministers appear to entertain consistent theory. The neutral obligations of Great Britain, as respects any foreign government, are but such as are set forth in an act of Parliament: and Parliament is to determine her rights as respects foreign governments. On both related points they act and think as if no law of nations existed, or, at least, as if an act of Parliament could dictate the law of nations for all other governments.

That enlistment of troops in any country, for foreign service, can only be made lawfully with the consent of the local government, is elementary doctrine of public law.¹

It is equally well established at the present time that, if such enlistment be allowed by a neutral to one belligerent, it must be allowed to the adverse belligerent; and, since the publication of Sir Robert Phillimore’s great work on international law, probably no person, even in Great Britain, would dispute the proposition.

It took time, however, for British jurists to open their eyes to this self-evident doctrine of neutrality. Wildman seems to have little or no conception of that point,² and it needed that Manning should enter into elaborate argumentation on the subject, as if it were a wholly new question, in order to introduce the rightful opinion into Great Britain.³

And yet Great Britain herself had manifested, by several acts of Parliament, that she saw clearly the inconvenience and the wrongfulness of foreign governments, or private persons, enlisting troops within the jurisdiction of Great Britain, without the authorization of the government.⁴

There never was any doubt or hesitation upon this subject in the United States. Our statesmen, beginning with Mr. Jefferson, at all times have unequivocally and positively maintained it; and our jurists, such as Wheaton, Lawrence, Kent, and Halleck, are careful to state the doctrine with explicitness. At the present day, in presence of the extensive erudition and systematic completeness with which Sir Robert Phillimore has expounded the principles of international law, including this point in all its relations,⁵ it might seem that the truth would be accepted in Great Britain.

Nevertheless the same old error still lingers there, if we may judge from the tenor of the British Case and Counter Case; that “insularity” of legal perception, of which eminent English jurists speak, still operates;¹ and, while the British Government acted in the matter of enlistments as if the act passed during the war with Russia was supreme over all the sovereign rights of other governments, so it now assumes that an act of Parliament is supreme over all the neutral rights of other governments.

On the former occasion Great Britain came in conflict with the neutrality laws of the United States and Prussia. In each of these countries, she assumed to carry into effect a domestic act of Parliament of her own, without asking the consent of the local government. In each of them, her agents were indicted and convicted of violation of the municipal law of the land. And in the United States, where the British minister was personally compromised in these unlawful acts with various British consuls, in disregard of their diplomatic or semi-diplomatic quality, it became painfully necessary for the American Government to withdraw the exequaturs of the consuls, and to deliver his passport to Mr. Crampton.²

We trust the Tribunal, on the perusal of those documents, will be satisfied of the sincerity and good faith with which the American Government executed its municipal laws, and discharged its neutral duties, on this, the only occasion, since the revolutionary action of France, in which any foreign government has undertaken to perpetrate such acts in the United States.

Qualis ab incepto talis ad finem. With consistency unwavering, and at whatever hazard of domestic or foreign inconvenience, even if it were friendly powers like France and Great Britain with which we were thus brought into contention, the United States have steadily adhered to the principles of international neutrality; and we may well, therefore, demand the observance of those principles, or reparation for their nonobservance, on the part of Great Britain.

X. We repeat a previous remark, that we are not disposed to follow the example set us in the British Case and Counter Case, as we might well do, by entering into examination and arraignment of the course pursued by Great Britain at various times on the subject of neutrality in her controversies with other governments. It is not agreeable to a friend to be compelled to say,The course of Great Britain as a belligerent towards neutrals.

“All his faults observed,

Set in a note-book, learned and conned by note,

To cast into my teeth.”

This the British Case does, wantonly, offensively. If the United States were to scan with like evil eye every occasion in which Great Britain might seem to have neglected her duty as a neutral, or to Have violated the rights of neutrals, we might produce a fearful list of charges; and such examination would be more pertinent to the present issue, and bring into view matters more pregnant of instruction, than those as to which the conduct of the United States is called in question here by the British Government.

We content ourselves, in this relation, with a brief reference to two or three great controversies of special interest to the American Government, where the British Government has manifested its views of the duties of neutrality, and of the manner of dealing with alleged breaches thereof by the neutral.

1. The celebrated orders in council, issued by the British government in retaliation of the Berlin and Milan decrees of the first Napoleon, involved intense assertion of neutral obligation; and that in the form of acts of force as against the United States which responded to these wrongful measures by an act of Congress forbidding all commercial intercourse between our citizens and either of the belligerents.¹ This act, says Phillimore, “ranks high in the history of nations. It conveyed a just and dignified rebuke both to France and England, and it was worthy of the country which has contributed such valuable materials to the edifice of international law.”²Orders in council.

2. The discussion between Great Britain on the one hand, and France on the other, in the first year of the American Revolution, produced three papers on the subject of neutral obligation, of the greatest importance in the diplomatic history of modern times, and which contain many observations pertinent to the present controversy, namely, the “Exposé des motifs de la conduite du Roi de France relativement à l’Angleterre, 1779;” the responsive “Mémoire justificatif,” published by the court of London, the authorship of which is attributed to the historian Gibbon; and the “Observations de la Cour de Versailles sur le Mémoire justificatif de la Cour de Londres.”³Course toward France during the American Revolution.

3. Meanwhile, controversy was pending between Great Britain and the Netherlands similar to that with France. The British Government complained that the Government of the United Provinces had not exercised due diligence to prevent their subjects from furnishing arms and other supplies to the Americans; and that abuse of the right of asylum in the ports of the Netherlands had been suffered the advantage of the Americans and the prejudice of Great Britain.Course toward the Netherlands.

Especially is it interesting to see, in this controversy with the Netherlands, that Great Britain complained incessantly of occurrences in the Dutch colonies of Saint Eustatius, Saint Christopher, Curacao, and Surinam, charged as bleaches of neutrality, although acts by no means so serious as those, of a similar nature, which the United States here charge against Great Britain, in regard to the Bahamas, Bermuda, and other British possessions in the West Indies.

The Government of the United Provinces, unlike France, had no thought or purpose of departing from neutrality. It defended the acts, inculpated as breaches of neutrality, by the same arguments, in reference to commerce, and to the right of asylum, as Lord Russell employed discussion with Mr. Adams. But the British Government regarded all those acts as acts of neutral negligence or of belligerent complicity on the part of the United Provinces, and as a sufficient cause of war, and thus forced the Netherlands into an armed alliance with the United States.⁴

But the prudent and sagacious statesmen, who have administered the foreign affairs of the United States in the present controversy, have preferred a patient perseverance of insistance in the right direction, so as to cause arbitration to be substituted for the more dread issue, to which, in like circumstances, men of less wisdom conducted Great Britain.

X. The Counsel of the United States desire to say in conclusion of this part of the Argument, that we have, by the imperative exigencies of the present controversy, been compelled to compare and contrast the manner in which the duties of neutrality have been performed at different epochs by the United States and by Great Britain, and especially to insist on the delinquency of the British Government, in this respect, relatively to the American Government. We could not otherwise discharge the special duty devolved upon us in behalf of the United States.General obligations of neutrals.

We concede the embarrassments which a state of war throws upon neutral nations, by reason of the conflict which it involves between the interests of the latter and those of the belligerent state or states.¹

The right of neutrality, we concede and admit, is co-extensive with the right to declare war and to make peace. All these rights are included in the simple right of national independence and sovereignty.²

Recognizing, then, the right of neutrality as equally sacred with the right to make war, we insist that the duty of neutrality corresponds to the right, although to the prejudice of one or the other belligerent; and in so far as the right of neutrality obstructs belligerent operations, the neutral State may nevertheless stand on its neutrality, even combatively. But such neutral must stand there in an attitude of absolute impartiality: that is of course.³

And such impartiality implies as well impartiality of inaction as impartiality of action.⁴

Neutrality, as defined by Klüber, is the condition of a neutral people, who, in the case of war, render succor to neither of the belligerent parties.⁵

As defined by Hübner, neutrality consists in complete inaction relatively to the war, and in exact and perfect impartiality, manifested by means of acts with regard to the belligerents, in everything which has relation to the war, and to the means, direct and indirect, of carrying it on.⁶

Azuni defines neutrality to be the continuation of the state of peace on the part of a power, which, on war arising between two or more nations, abstains absolutely from taking any part therein;⁷ and this last definition has the approval of one of the most conspicuous of the modern jurists of Italy.

But in whatever sense neutrality is to be defined, and howsoever it originates, certain it is, that such neutrality must be one of absolute good faith: it must not degenerate into war in disguise.⁸

Accepting, as we do, the comprehensive definition of neutrality given by Fioré, we need not scruple to cite the appreciation, which that intelligent author expresses, of the historical attitude of the United States in the relation.

“In spite,” says Fioré, “of the efforts of Holland and Scandinavia, the cause of neutrals found no real support until there arose a powerful State to maintain their common rights. It was not, in truth, before the constitution of the potent neutral State of the United States of America, which was followed by the league of the armed neutrality in the seas of Europe, that the right of neutrals, having solid support to stand on, began to develop itself progressively, until that right reached its assured triumph, in resolving, by principles of justice, the multifarious questions which had agitated past ages.”¹

We need not stop to inquire against what power it was that these efforts for the development and establishment of neutral rights were directed by the neutral powers which acted in concert to that great end.²

The Counsel of the United States may be permitted, in view of the express or implied charges of the British Case and Counter Case, to regard with satisfaction, if not with pride, the part thus accorded to their country, in the maintenance of neutral rights, and the discharge of neutral duties alike, by the impartial voice of Europe.³

1. International Law, vol. i, p. 466.
2. Documents annexed to American Case, vol. v, p. 440.
1. Appendix to the British Case, vol. iii, p. 67.
2. Lord Clarendon. says Mr. Buchanan, in one of his dispatches, referred to our neutrality law of April 20, 1818, in terms of high commendation, and pronounced it superior to their own, especially in regard to privateers. (App. Am. Case, vol. iv, p. 69.)
1. Cauchy, Droit maritime, tome ii, p. 236 et seq.
2. See Calvo’s Derecho Internacional, tome ii, p. 181.
1. See Hansard’s Parliamentary Debates, vol. xl, passim.
1. International Law, vol. i, p. 467.
1. See documents annexed to the American Counter Case, pages 800 et seq.
2. See Documents, ubi supra, p. 912.
1. See Documents, ubi supra, p. 912.
2. Documents as above, p. 949.
3. See Documents annexed to the American Case, vol. iv, p. 150 et seq.
4. See Ferrarotti, Commentario del codice penale, vol. i, pp. 261–2; and Castelleri, Legislazioni comparate, p. 284.
5. Document annexed to the American Counter Case, p. 1092.
6. Ubi supra, p. 1105.
1. Vattel, Droit de gens, éd. Pradier-Fodeéré, tome ii, p. 454, note.
2. Documents annexed to the American Counter Case, p. 958.
3. Ubi supra, p. 1041 et seq.
4. See the circulars issued by the Brazilian Government, in supplementary documents annexed to the American Case, Vol. vii, p. 107 et seq.
5. American Case, p, 465.
6. See documents annexed to the American Counter Case, p. 1013 et seq.
1. Documents, ut supra, p. 1051 et seq.
2. Ubi supra, p. 1072 et seq. See also the letter of the Spanish minister, M. Ribeiro, to Sir A. Paget, Amer. App., vol. iv, p. 158.
3. See Silva Ferrão, Theoria do Direito Penal, vol. iv, pp. 181, 231; and Pacheco, Codigo. Penal Concordado, tome ii, pp. 91, 96, in Documents, ubi supra, pp. 958, 1052.
4. See Nederlandsche Wetboeken, ed. 1865, p. 677, for the law of the Netherlands.
1. Documents annexed to the American Case, vol. iv, p. 155.
2. Documents annexed to the American Counter Case, Supplement, p. 56.
3. Ibid., pp. 54, 53, 51, 62.
1. See Canchy, ubi supra; Lucchesi Palli, Droit Public et Maritime, p. 55, et seq.; Cussy, Phases, etc., préf.
1. Appendix to British Case, vol. iii, Supplement, p. 22.
2. Hansard’s Parliamentary Debates, N. S., vol. viii, p. 1019. Canning’s Speeches, vol. v, p. 50.
1. Hansard’s Debates, vol. clxxiii, p. 955.
2. See History of Don Francisco de Miranda’s attempt to effect a revolution in South America.
3. See Antepara’s Documents, Historical and Explanatory, p. 13.
4. The Works of John Adams, by Charles Francis Adams, vol. i, pages 523, 531; vol. viii, pages 569, 581, 600; vol. x, p. 134.
5. Dodsley Annual Register for 1807.
6. History of Miranda’s Expedition, as above, passim.
7. See this extraordinary contract in Autepara’s Documents, Historical and Explanatory, &c., p. 213.
1. See Trial of Smith and Ogden, passim.
1. The United States Statutes at Large, vol. viii, p. 258.
1. Hansard’s Debates, vol. clxxiii, p. 955.
1. Documents annexed to the American Case, vol. ii., p. 130.
1. Wolff, Jus gentium, s. 747. Vattel, Droit des gens, éd. Pradier-Fodéré, liv. iii, chap. 7, S. 449. Klüber, Droit des gens modernes de l’Europe, s. 285. Martens, Précis du droit tes gens, s. 30. Galiani, Dei doveri de principi neutrali, p. 325. Hautefeuille, Droits et devoirs des nations neutres, tome i, 312, 313. Riquelme, Derecho publico internacional, tom. i, p. 144.
2. International Law, vol. i, p. 64.
3. Law of Nations, book iii, chap. 1.
4. See numerous acts of Parliament on this subject, collected in Phillimore’s International Law, vol. 1, p. 212.
5. Vol. iii, p. 209 et seq.
1. Phillimore, 1st ed., pref., p. 11; Chitty’s Practice, pref., p. 5, note.
2. See the documents on this subject in the Appendix to the American Counter Case.
1. Manning, Law of Nations, vol. iii, ch. 10; Phillimore, vol. iii, p. 412.
2. Vol. iii, p. 250.
3. See these documents at large in Martens, Causes célèbres, tome iii, cause 2de.
4. See the history of this controversy in Martens, Causes célèbres, tome ii, cause 10me.
1. See Casanova, Del Diritto Internationale, vol. ii, lez. 21.
2. Klüber. Droit des Gens, § 279; Galiani, Dei Doveri del Principi, pt. i, c. 3; Hautefeuille, Droits et Devoirs des Nations neutres, tom. i, p. 376.
3. Martens, Droit des Gens, éd. Vergé, tome ii, p. 292 et seq.; Heffter, Droit international, p. 276 et seq.; Cauchy, Droit maritime, passim.
4. Massé, Le Droit commercial dans ses Rapports avec le Droit des Gens, tomo i, p. 165.
5. Droit des Gens, chap, ii, § 279.
6. De la Saisie des Bâtiments neutres, tome i, part 1, chap. ii.
7. Diritto Marittimo dell’ Europa, cap. i, art. 3.
8. See the complete and exhaustive discussion of this question in Calvo, Derecho internacional, Téorico y Practico, de Europa y America, tome ii, pp. 150, 403. See, also, Gessner, Droit des Neutres sur Mer, passim.
1. Fioré, Nouveau Droit international public suivant les besoins de la civilisation modern, tome ii, p. 388.
2. See Cauchy, Droit Maritime, tome i, préf.; Gussy, Phases, &c., préf.

3. Among the matters which the British Case or Counter Case introduces to attention are several which are too insignificant for notice in the text, but which may need a word of commentary.

   John Laird, ex-partner and father of “John Laird, Sons & Co.,” appears making statements against the United States.John Laird as a witness.

   The Lairds, it should seem, would better hide their heads. And it would seem that Great Britain, who, largely by their means, has been involved in acts which profoundly, and perhaps permanently, disturb her relations with the United States, had had quite enough of such persons.

   As witnesses, they are worthless, Laird, senior, dishonored himself by deceptive statements in the House of Commons with respect to the operations of Laird, Sons & Co. The time when he could win applause there by boastful hostility to the United States has passed. Neither Lord Palmerston, if living, nor Lord Russell, if in the House of Commons, nor Mr. Gladstone himself, could look with complacency to-day on the ship-building firm which so zealously served the confederates, to the injury alike of Great Britain and of the United States.

   1. John Laird says that a man-of-war was built in the United States for Russia, and delivered to her during her late war with Great Britain. Proof, a newspaper statement in the Times. Laird and the Times are both mistaken. The case of the Maury, mentioned by Sir Roundell Palmer, shows that at this period British officers in America, while engaged in violating the American foreign enlistment act themselves, were watchful to prevent its violation by Russia.

   Laird communicated to Lord Tenterden, December 12, 1871, copies of letters between Laird, Sons & Co. and Mr. H., an American, who corresponded with the former on the subject of building a ship or ships for the United States. The correspondence shows that Mr. H. was a mere speculator on his own account, wholly without any authority from the Secretary of the Navy of the United States. “Our Department of Naval Affairs,” as he ignorantly calls it, and our “Minister of the Navy,” which expressions alone ought to have satisfied the Lairds that they were being victimized by some ingenious New Yorker. Mr. H. abusively referred to the Secretary of the Navy to promote his own private interests or those of the Lairds.

   John Laird, in the zeal of his sympathy with the rebellion, made the same statement in the House of Commons long ago, and was flatly contradicted by Mr. Welles, the American Secretary of the Navy.

   The superserviceable Mr. H. had no commission from the American Government. He began to treat orally with the Lairds, early in 1861, before the arrival of Mr. Adams in England. No officer of the United States appears to have countenanced Mr. H. but the Navy Department, according to Mr. Welles, was importuned by more than one person in behalf of Mr. Laird. If Mr. H. was the agent of anybody, it was of the Lairds.

   The British Government must be in desperate straits for defense, when it condescends to resuscitate the stale calumnies of “un homme taré,” like John Laird and to put them into its Case.

   2. In this connection we dispose of another of the smaller items of accusation of the United States.

   It is charged in the British Case that we purchased arms in England. What then? Was it not lawful to do so, according to the accepted law of nations?Purchase of arms.

   This charge is another illustration of the injustice of that act of the British Government which assumed to put the United States and their rebels on a footing of international equality in the markets of Great Britain.

   Not thus have the United States deported themselves toward Spain in the matter of Cuba.