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Maps, plataa, charts, ate. may ba filmad at diffarant reduction ratioa. Thoaa too larga to ba entirely included in one exposure ara filmed beginning in the upper left hand comer, left to right and top to bottom, aa many frsmea aa required. The following diagrama illuatrata the method: Lea cartea. planches, tableaux, etc., pauvant dtre fiimia i dee taux da rMuction diff Grants. Lorsque le document eat trcp grand pour dtra reproduit en un seul cliche, il aat fiim^ ^ partir da Tangle supArieur gauche, de gauche it droite. et de haut en baa, an prenant le nombre d'images nAcessaire. Lea diagrammes suivants iliustrent la m^thoda. 1 2 3 1 2 3 4 5 6 I I I I •i r THB LAW AND FACTS OF THB CASE OF THE "ALABAMA," WITH REFEEENCK TO THE GENEVA ARBITRATION : H 4 i f. BY JAMES O'DOWD, Esq., Baebistee-at.Law. LONDON: BUTTERWOETHS, 7, FLEET-STREET. Law Publishers to the Queen's Most Excellent Majesty. 1873 ■1^A£ PBEFACE The Geneva Award has relegated the case of the Alabama to the regions of history. But, before the exact story of that vessel can be written, the merits of the award and the legal principles upon which it proceeded, will, no doubt, be canvassed in both Houses of Parliament. It is with a view to aid the lull and fair discussion of the subject that the following pages have been written. The Author does not deny, that whilst anxious to uphold the law of England as against a retroactive treaty and its rules, he has also been influenced by, he trusts, a pardonable desire to vindicate his official conduct and his professional character. He bega it to be uiider^itaod that the essay is not, in any sense, to be regarded as official. 4, Aljred-Plac;, West. South Kensington. M. : If. = I lii LAW AND FACTS OF THE "ALABAMA' CASL. T-A-BUjE 0:F OOITTEITTS. § l-LAW OF CONTRABAND. Sale of contraband not iiocessarily a broat^h of neutrality. Doctrine of passivM^ oontraband now obsolete. Revived by United States Oovjrnment in Alabama case. Power of Sovereign to prohibit exportation of contraband articles. Rights of belligerent to seize and confiscate in tramiiu. Complaint in Alabama case rests on Act of 1819 alone. Immorality of sale of contraband. Opinion of Lord Chief Justice as to effect of present law. iBSue in 1862 merely as to construction of Act of 1819. Embarrassment caused by rule as to " due diligence." § 2— SHIPS AS CONTRABAND. No distinction between arms and ship? unless founded on municipal law <^r treaty. Vessel not a base of operations unless intent shown. Observations of Dr. liushington in 182.S. Of Ml'. Dana in edition oi: Whoaton's on " International Law," Judgment in the Alerta case. Observations of Mr. Justice Story in the case of the Independeneia. Intent must be absolute and on the part of the equipper or his contractce. Extract from President Pierce's message to Congress in 1855. Observations of Mr. Webster in 1842. Of President Pierce in 1854. No author except Haute villc makes the distinction. Obiervations of Sir Alexander Cockbum. 'i st s ^a^i^ . mmmm Hanteville'H doctrine ouce u„i vernal -now exploded -^-.ro....:-r^:t::i^-- Despatch of M, Adams of ,Uh Apr,-,, ,H,;:, '' "• Apphcftfions to M.'NsrM. Laird in Iflfii l.v vir' i.- S .1-THE FOnmuN ENLISTMENT ACT 1819. United S,.,e.Ac; „,,»;"■ "■'""■"*'' ""°°- Co.p.H»„. ,„._ u..l,o., «„,.., s..,«„ o, isi, ,„. BH«», «„,„ Burden of proof under Aof r.f ia-r> i I ^ """^r Actof 18/0andprevbu8lv Old Acts never carried into effect. Preamble to Act of 1819. Section 2-first part, as'to service of Foreign Statn« . . Observations of the Lm-A Chi^f n section r doe. nor^'^.o'^Llr °'°" "" "' ""° ^'''""^"•- Intent must be immediate and on the mr^ nf k m^ S«.io„ 8, .. .„g„en.i„, or .he w ^uj^t^'" " " "°""'-- Section 9, offencos committed out of the United Kingdom may be tried at WcBtminBtcr. Section 10, pcnnlties how sued for. Section 11, privileges given of persons suing on behalf of the Revenue. Section 12, Act not to extend to enlistments sanctioned by Indian authorit 'cs. Act contrary to common law maxim. Owner liable for acts of master. Even for acts not connected with navigation. Commissioners of Customs a fortiori exempted from obligation to look outside Act. Observations of Chief Baron Pollock as to terms " equip, furnish,"' &c. Of Sir A. Cockburn (upon United States Act of 1818) to the same effect. Act of 1810 silent about building ships. Opinion of Lord Chief Baron that building lawful. Rarity and expensivcness of «hlps the reason for fancied distinction. Opinion of Mr. Mellisli, of Sir H. M. Cairns, and of Mr. Keniplay upon case submitted for Messrs. Laird. Facility with which law might be evaded. Conduct of lYesldeut Grant's Government during Franco-Pruasian war. High reputation of American International Jurists. United States Government must have known their sales to the French were juatitiable. Absurdity of international rule. Law unsound but here correctly stated. Act of 1870 necessary because Act of 1819 worthless. §4— RELATIONS OF ENLISTMENT TO THE DETENTION OF SHIPS. J Diffei-ence between English and Ameri(;an rule as to arrest. Magna Charta and Habeas Corpus Act. Act of 1870 repeals hoih pro tanto. Crown cannot arrest on suspicion in foreign emergency. Commissioners of Customs could not calculate on an indemnioy. Passmore's the only evidence available, § 5— FACTS OF THE ALABAMA CASE. Statement of Messrs. Laird's foreman. Course taken by Customs authorities really in accordance with Lord Chief Justice's opinion. Report of Commissioners of Ist July. J.^-.JJIL.lJ|i.iW Communication by Lord Russell to Mr. Adnms Opinion of Law Offlccrs upou fact, «tat,..I I., m'p. Adam, Opunon of Sir A. Cockhurn tl.a. evidence il.fflci... On 30th of Solicitor to the Customs Consequent n^po-t of Commissioners t^ Lords of Treasury. Mr. Dudley unable to furnish evidence Letter from Mr. Du.lloy to Mr Adams of lU,h July Inconsistency of Lord Chief Justice's censure of ,lio" ( 'ustoras No power to detain in the absence of general procin at r Mr La>rd s statement in House of Commons of 27th March 1872 No h:ng to excite alarm on the part of Customs autho^ es AuthorUyofLordPalmer.ston as to detention under A t of 181» Difficult position of British officials * Effect of cross-examination, Sec, upon evidence. Prima face insufficiency of Passmore's affidavit I-irst application .« information on oath" hv Mr « Analysis of material parts of Pas.more-: affid/vif '""^'' ''''''''" Wages offered inadequate for fighting-ships Vessel not necessarily more than a blockade-rannor ■Ignorance of Passmore hi<»tinaiH,,r. „ i • Post of signalman promised conditionally Terms applicable to fighting-ship not disclosed Passmore not enlisted within the meaning of Act of 1811) Actual enlistment not proved by Passmore's affidavit. Better evidence ought if possible to have been produced. Mssr. Laird not necessarily responsible for Captain Butcher's acts Mr. Dowd's report that evidence was insufficient. Mr. Hamel's report concurring. Course of Customs authorities approve.^ by Lord Chief Justice Letter from Secretary of Treasury to Mr. Layard "^Taw Offie!::r ^"^'^^"^ ^^^ ^^- ^^^^-'^ ^^^-^^ -^-^^tea to Statement in new affidavit as to articles. Mr. O'Dowd's report of 23rd July, 1862 ' Mr' O'Do:^ '"'' "' T^''^' ^^"^^^ ^'^ '^ ^^^'- -d -tides. Mr. O Dowd 8 report of 25th July, 1862 Report of Law Officers that vessel ought to be seized Reasons for not concurring, escape of vessel. Recapitulation of facts. Case of the Maury, delay of the Washington Government. Customs authorities could not have ^crmauently detained ship. InconBiMteiil opinions of Sir \. (-'ockburn, Unrcasonabloncss of Mr. Adams's censure of Customs officials. Further inconsistency in opinions (jf Lord Chief Justice. Act of 1870 only warrants temporary arrest. Observationsof Soli(utorOeneriiliaHou«eof Commons ou27th March, 1863. Of Lord ralmerBtou on 27th March, 1868. Of tlie Vltorney General on Ist August, 1870. Kscape of the Caroline and the America. The case of tlie Alexandra and other vessels. llesult of trial in cnse of the Alexandra. Out of four cases tried under Act of 1870, Government successful In one only. Case of the International, of the Oauntljt, § 6— THE GENEVA ARBITRATION. First treaty rule contains a principle new to our jurisprudence. Second, contains nothing new of itself. Third, engrafts a new point given upon second. Geneva award rather the conclusion of a private arbitrator than a legal judgment. Intention of parties upon arbitration to be gathered from submission. Informality of treaty reduces result to political and friendly compromise. Award of damages not the finding of a legal tribunal. Commissioners of Customs in 1862 bound by rules of law. Distinction between high courts of conciliation and legal tribunals. Contrast between position of United States Government in 1872 and of English Government in 1862. Had proceedings been taken a juiy must have acquitted Capt. Butcher. British municipal law not inconsistent with international law. Had former law been sufficient new rules unnecessary. § 7— CONCLUSION. Conflicting rights of belligerents and neutrals. Innocent shipowners only liable to penalties and their ship only detainablc as security. Complicity of Messrs. Laird not charged in affidavits. Changes show that Act of 1819 did not authorize required action. Consequences of action by Customs Collectors as required by Act of 1870. Treaty of Washington different from Act of 1819a8 regai'ds "due diligence." Result of the case of the Alexandra. tf ^ ', Act ot 1819 to be construed strictly. No express eulistment by Captain Butcher bliip could not have been deta--ned except as security for penalties Jf not so detained must have been permanently conLater No evidence of intent or even of equipment Burden of proof did not lie on Messrs. Laird Facilities offered to Mr. Dudley if h chose to prosecute "'^Tntl'aral r." "^ ""'^ "^^ "^ ^^ ^ — or Customs autherities could only act under statute. Customs authorities coQid not in Iftfi? ho„^ * i. Washington treaty " ''''" "''"^"^^^ ''^^'''^ ^y Appeal to authorities previously cited. NoTK-Page 29-for Latin quotation read "migenter ay as ne e. leges, ,u. ad preterita respicere putenZ ante-acta non injirmanr {De Aug. Sd.) ' sited. )ie8. imon or ired by LiW AND FACTS OF THE 'ALABAMA' CASE. nter tur, 1 :>^/ ■ HI ■i Im '^' ii ' ' v:; ! \ LAW AND FACTS OF THE ALABAMA CASE. — 0- § 1— LAW OF CONTRABAND. ir According to the present doctrines of international law, there is no restriction placed upon sales of contraband, so far as a breach of neutrality, as distinguished from a forfeiture of the contraband articles, is concerned. The only question that arises with respect to sales of contraband is whether the neutral territory has not been made a base of mihtary operations. If this has been done with the connivance of the neutral Govern- ment, it has forfeited its neutrality. The sale of munitions of war on neutral territory, as dis- tinguished from the carriage of those articles to a belligerent port, was formerly considered to be rendering the neutral territory a base of operations. Such transactions were termed sales of passive contraband. It is unnecessary to say that all such doctrines are now obsolete, and that but a year or two ago the American Government itself actually sold on its own soil immense quantities of arms to France, which was then at war with Prussia. The doctrine of passive contraband, however, was sought to be revived in the case of the Alabama, and the United States Government then, and frequently since contended, that ships differ from other contraband in necessarily constituting the neutral soil a base of operations, or that they at least ar • so far different from other contraband, that any sale of a ship, armed or unarmed, by the citizen of a neutral State to a belligerent, is a breach of neutrality. a Sales of oacr kinds of conteaband are confessedly no breaches of nentrality. The Sovereign n:ay, indeed, prohibit the export of sach articles, if he or she pleases, and our Govern- ment has on some occasions done so, not wishing to deplete oar own stores of military supplies, and for other motives personal to the nafon .tself. But, in the absence of any restriction im- posed by the Crown, the trade in contraband is no breach of neutrality or .a»,WK, although a belUgerent may seize and confiscate the articles m transitu. The vessel, however, if it makes the return voyage, is free from capture ever afterwards, and a vessel UlegaJly equipped is nevertheless scot-free after her nest succeeding cruise is terminated, Kent Com. vol. i. p 12S. T"T/.^^- '"'• ''"'' »"• "''■ 8 « "• The Sulusin,: Tnmdad, 7 Wheaton Eep. p. 848. Although the United States Government alleged in the ml-: ^'T" ""' "" «-™-nt disregarded th obhgations imposed on as, both by international law and our shTw T »f ""'■" ^°' "' '"»' y^'' " »» be readily shown, that this complaint has long since been abandoned, I far as mternational law is concerned, and has lately been rested alone on the Act of 1819. At international law, the sale of slups-armed or anarmed-by the citizen of a neatral State to a belhgerent m the way of commerce, and not for the parpose starting from the neatral territory on martial expedition!, is witi.out any doubt 7- fectly lawful. ^ Whether the sale of any kind of contraband is moral or not IS another question. The better opinion appears to be that it is odious an the sight of God and man. Free trade in contraband IS a bounty on the success in war of the richer belligerent It IS adding fuel to fire. It is to give drink to the drunken, or weapons to intending duellists. The power of the Crown to forbid the export of contraband may be used in favor of any belhgerent It please.. Why should the Crown, or its servants have any discretion in a matter concerning the lives of hundreds of thousands of excited and almost insane persons, struggling with the tide of hostUe passions, and unable to check themselves 8 in their wild and blood-thirsty career ? The opinion of the Lord Chief Justice on this point is hardly in keeping with his general criticisms in the Alabama case. Really, all neutrality, as defined by the law of nations, is most insincere and fraudulent. It is a game of hide-and-seek, got up in the interest of the leading maritime powers, who cry " catch me if you can," and sometimes " catch me if your dare." Yet, no nation is more earnest on behalf of the existing legal rights of nations than the United States, whose war with ourselves in 1812 was owing to our supposed invasion of neutral privileges. The Lord Chief Justice, indeed, thinks that only for the present law of contraband, the nation which was well prepared for war should necessarily succeed. But, in fact, no nation ever increases its military strength without the fact becoming known. The issue, however, which the Government, and the Customs Authorities, had before them in 1862, was not what was morally right — for this is not always the question even at international law — nor what was politically expedient, but simply what was the construction of the Enlistment Act of 1819. At the commencement of every war the Foreign Secretaries of the belligerent powers are found to be remonstrating with the Governments of neutral States for allowing their citizens to dis- pose of arms to the enemy. Count Bernsdorff wasted quires of paper in writing on this subject to Secretary Fish in 1870. If the circumstances of the case were reversed, we would find perhaps Mr. Fish remonstrating with Count Bernsdorff for a similar cause. Nothing was more natural, therefore, than that Amricans should feel exasperated towards us for the escape of the Alabama. As late as June 8rd, 1819, we find Lord Castlereagh deny- ing that the Government connived at any export of contraband, Hansard, vol. 40, p. 906. The present law of nations in fact wiU always be revolting to our feelings, and could only have been established after a long struggle. However, officials have no concern with the morality of a rule of law. They are sworn to administer not the doctrines of morality, but of the municipal Customs l^^tl^JZ "'"r""" """^'^^ "^ *« simUar lo wW T ^ °" "'"''" "^ embarrassment similar to what the Jeneva CWl must have experieneed in a^g down a definition of d„e diligence, tliat spXTnew teohmcal and ex post facto rale. [h § Z-SHIPS AS CONTEABAND. It is, however, preposterous to assert that the law of nations aUows a neutral to sell to a belligerent large andlmLlr but not ships In Central Europe, Asia, and America, Z™ ^e Sates which have no sea-board. Why must intern t on! aw show them no mercj, and be so lenient to England tte United States, and every other nation with a sea-cofs" The lung IS ridiculous, and any distinction that exists must be founded on positive municipal law or treaty i„t»/' ?*' "T," '"^".°'*' ^^"'^- """ "» «'^" ■» "-oaer rule of mternational law which forbids a belhgerent to make neutrll territory a base of operation., thi. l^phes that he may buy at there but not ships, as every ship is a base of ^perlZs Grantog hat this distinction is solid-and it is most trans parent y thm, and not recognised at international law-an intent to use the ship for hostile purposes must be proved If 1 IS consistent with the facts that the vessel is to be used as a a^u!n "T7' Z '° "''"«° " """""K^ ''^'-^^ •>«'»« she ac ually puts to sea for mUitary purposes, or if she is sold with- out any expression of intent on the part of the vendee-which of course, .s the »Bual case-the vessel is not a base of opera-' tions^ She IS mere passive contraband, and cannot be detained On the motion for the repeal of the Act in 1828, April 16th D. Lushington said in the House of Commons he "Lhe to know when we were allowed by statute to send ships and "warlike stores to foreign nation,, why we should not be pTr " mitted to send men also." Here no distinction was taken by that eminent civilian between ships and other contraband ; nor does anyone else who took part in the debate draw such a distinction, although it was drawn between men and other contraband. It is, then, a great, though prevalent error to suppose that the Messrs. Laird would not be legally justified in building and eauipping a vessel of war to be sent for sale in a port of a belligerent. Mr. Dana, in his edition of Wheaton on •' Inter- " national Law," p. 503, says "An American merchant may " build and fully arm a vessel, and supply her with stores, and "offer her for sale in our own market He may, without '• violating our law, send out such vessel so equipped, under the " flag and papers of his own country, with no more force of crew " than is suitable for navigation, with no right to resist search " or seizure, and to take the chances of capture as contraband " merchandize. In such case the extent and character of the " equipments is as immaterial as in the other class of cases. " The intent is aU. The act is open to great suspicion and " abuse, and the line may often be scarcely traceable ; yet the " principle is clear enough. Is the intent one to prepare an '• article of contraband merchandize, to be sent to the market of •* a belligerent, subject to the chances of capture ? On the other " hand, is it to fit out a vessel which shall leave our port to " cruise, immediately or ultimately, against the commerce of a " friendly nation ? The latter we are bound to prevent. The " former the belligerent must prevent." This passage occurs in the edition of 1865, a period not only subsequent to the passing of the American EnHstment Act of 1818, but even to the occurrence of the Alabama affair. In 1815, in the case of the Alerta, tried before the Supreme Court of the United States, the following passage occurs in the judgment, "A neutral nation may, if so disposed, without " a breach of her neutral character, grant permission to both " belligerents to equip their vessels of war within her territory ; *' but, without such permission, the subjects of such belligerent f I iM I 11 power, hare „„ right to e,„ip vessels of war, or to moreaseor ■augment their force, either w.th arms „r ^.h J^Thin the territory of such neutral nation." But, it seemsTnhe Jtz i: iter ztir '"' " '" ''™'™' --" According to the decision in the AUHa, the United Slates under/w A / '' ""■"• *^""''"""' "o""" '» ^l^"' *» ™o either under that Act or at the common law of nations The latt!r awgavethemnoright,andbytheformertheywer:estopp:i r„^: out by the Act, y,z., „„ sworn evidence of facts, and not on hearsay or rumour. No foreign Government has a legal rllt It must m proceeing under the statute adopt the mJde of procedure pointed out by it. The /»*/,«,*„o;», in 1816, was armed and sold bv an Amencancmzen to the Government of Buenos Ayres then at war with Spain. We f;nd Mr .Tn«ti« st„ ■ ,' " Tbo „„».;■ "" -na «'• Justice Story saymg m that case. The question as to the original illegal armament and outfit o the Inaei,e^encia, may be dismissed in a few words I ^s sTtrBu'en'r"^" '''"'''' "' " ™-"°' war shew "neurlv W "° /'"'f J^'^'-S onr laws or our nationa neutrahty If captured by a Spanish ship of war during the voyage, she would have been justly condemned as good prize ■Hh^; Z ' " "'" '"'"• "' ^ tte law of nations that forbids our citizens from sending armed vessels, as weU as munitions oi war, to foreign ports for sale. It is a cI •mercial advent.™ which no nation is bound to proHMt and which only exposes the persons engaged m it to thep", confiscation. Supposing, therefore, the voyage to have been or commercial purposes, and the sale at Buenof Ayres" h ve "been a «„„, ^.e sale (and there is nothing in the elie:: " before us to contradict it), there is no pretence to say that the " original oufit on the voyage was illegal, or that a capture made " after the sale was, for that cause alone, invalid," The San- tissima Trinidad, Wheaton's Rep. 7, p. 840. In 1882, it was held also in America that the intent referred to in the Act must be an absolute and not a contingent intent. This ruling, indeed, follows from the penal nature of the statute. For every such enactment is to be construed strictly. Of course the intent must be on the part of the equipper, or his contractee, and not of the master or any other person ; else the property of A. would be confiscated for the conduct or acts of B. This indeed is partly authorized by the sixth section (hereinafter referred to) of our Act of 1819. But such a provision is not to be presumed, and not to be extended beyond its strict letter. President Pierce stated in his message to Congress in 1856, that " The laws of the United States do not forbid their citizens " to sell to either of the belligerent powers articles contraband " of war, or to take munitions of war, or soldiers, on board their "private ships for exportation." In 1842, Mr. Webster writes, " It is not the practice of "nations to undertake to prohibit their own subjects from " trafficking in articles contraband of war." In December, 1854, President Pierce declares the same thing, and adds " Our merchantmen have been, and still con- " tinue to be, largely employed by Great Britain and France in "transporting troops, provisions, and munitions of war to the " principal seat of military operations, and in bringing home " the sick and wounded soldiers ; but such use of our mercantile " marine is not interdicted either by the international or by our " municipal law, and therefore does not compromise our neutral " relations with Russia." No author, except Hauteville, in thus treating of contraband, makes any exception as to ships, or regards them as more or less unlawful than other articles of contraband. Sir Alexander Cockburn says (London Gazette, p. 4129) "In " principle is there any difference between a ship-of-war and any u •• other article of warUke „» ? I „„ un.blo to „e any. Nor equipped for armament ai.,1 a ehin aotanlly armed " nentralt^H ""f f "■"'' » '=»'-'"'-d 'o-. breach of nentrahty He, therefore, oonsietently held the equipping or a mmg of a ,hip to be also a breach. If hi, unLZpr po^t>on.eunte„a le, eo is his partieular doctrine as to .hi;. Iherefore, Iu3 rule as to ships is also obsolete. Ortolan considers that a ship-of-war can be sold to a belhgerent but not made to order, without breach of neutraUty In m,1, r'T '^"" ""^ ™""^-'-» »' «"» «-'ion the TT "^'' "" "'^ ^•"'e'^' of England, except one, declared in th House of Lords that the Crown had no power t„ prohib" CMefts: etCl7 ^S^ "T"^' ""'' " '^' """' io„ • n ""^^^ ^P- *1^2), ofifences against international Spr";h;:;°'''"°''"'""^^™"™""- '""'- '"-e Crown f ' ^T'""! ^^ *"'■'"'• »f ■'""'""T. 1871, says "It may and sale of a sh>p, even of a ship-of-war, to a beUigerent is ■ gal by the rules of international law It was not," add '• Ir ach o ; ' ,'" ™ '"" " "'"'" °8"-' England f^ a breach of .nternational law; but it was because collateral -" jments for completing the equipment and annamen o the ships so sold, by placing on board officers and crew, guns and provisions, rendered the entire procedure, in fac the inception of a hostile undertaking from the ontines o a ■neutral country." But how, I should hke to know, were the Government aware of these •. collateral arrangements "e oTtlT;. T ^'""' T" '"'^""^ «"^» "f '^^ non.detention of the Alabama as a hopeless task, since he bases his argument ml s ae TT f *'^ "'"^' •"" "^ "'^ »"»*-' -4°- ments, the alleged enlistment, &c. Mr. Adams himself, on fith April, 1868, writes to Lord Eussell with reference to certain American anthorities. " The " sale and transfer, by a neutral, of arms, of munitions of war, •• and even of vessels of war, to a belli{?erent country, not sub- " ject to blockade at the time, as a purely commercial transac- " tion, is decided by these authorities not to be unlawful. They "go not a step further; and precisely to that extent I have " taken no exception to the doctrine." On SOth July, 1801, the Department of Naval Affairs at Washington applied to the Messrs. Laird to build a ship "to bo " furnished complete, with guns and everything appertaining." The United States Assistant Secretary of the Navy wrote again on the 14th August to the gentleman, who was acting for the Messrs. Laird. "I hope your friends will tender for the two iron- plated steamers." The Messrs. Laird replied that they could not complete the orderf! within the time appointed. Their agent, in acknowledging this letter, wrote that "the Secretary of the Navy was very desirous " to have you build the iron-plated or " bomb-proof batteries, and I trust that he may yet decide to "have you build one or more of the gun-boats." These facts were all stated by Mr. Laird in the House of Commons in the debate on the Foreign Enhstmeut Act, 27th March, 1868. Hansard, vol. 170, pp. 07, 08, 09. After perusing these authorities— some of them American — will anyone venture to suggest even a doubt, whether at inter- national law, ships of war may not be sold by a neutral to a belligerent, without any breach of neutraUty ? § 8— THE FOREIGN ENLISTMENT ACT 1819. I now come to our Foreign Enhstment Act of 1819. And here let me repeat that a foreign nation has no right to seek the enforcement of a municipal provision which is not a rule of international law. For instance, France and several other States, have provided by statute thot the exportation of muni- tions of war may be forbidden either generally or for a particular •^. f 10 period or dostination. Yet, iu the event of our being enRaged in war, we could not think of making bo useleHs a request to the French Oovornmont as to put thin law in force. It was made for their protection, not ours. One of its objects was to prevent the depletion of the military stores of the country in time of danger, even though it might not be one of actual war. By the K; .fe 17 Vic. c. 107, our Government (in addition to the royal prerogative), has acquired a similar power, and exor- cised it by a prohibition against exporting contraband durin^ the late Kussian war. But, during the American civil war, they never dreamed of prohibiting the export of contraband. In 1887, the United States Government had an act passed authorizing them to seizo any ship or vehicle with arms or ammunition intended to cross the frontier to Canada. All these municipal enactments, and. in short, all statutes, can neither confer or abrogate an international right. The American and British Acts are so far alike, that they both prohibit enlistment and the e.piipping of ships (or military purposes, but not for sale. But, the Acts differ as to the mode in which they are to ba enforced. It is here necessary to con- sider only our own Act. With respect to it, the Lord Chief Justice himself is a witness that the Act made no change in the law, as regards the building of vessels of war to be sold to a belligerent. This certainly would seem to be an odd con- structiou of the Act, if the very same interpretation had not been put on the analogous American statute by a Jud-e of world-wide fame, Mr. Justice Story. (Vide the case oi tJie Santissima Trinidad hereinafter referred to.) Sir A. Cockburn says (p. 4135) that at one time -the " Spanish Minister loudly complained that some thirty ve' ^els " specifically named, the property of American citizen., and " belonging to ports of the Union, were then preying on 'Spanish connnerco. The representative of Portugal made - similar complalr^s." The American Act of 1818, accordin-dy, ■was directed aga'nst privateering carried on by American citizens against countries with which the United" States were i< — J&, i SliihrnAam^ ^aawan 11 at poaco. Buildiiifjr or fitting out nliipH of wi»r for a bolligereut liad not como into (luostioii at that timo at all. In liko luannor tho British Aot of 181U had in viow. not tho provoution of building or equipping ships for a boUigorent in tho way of trade, but tho provoution of military or naval expeditions on bohalf of the revolted colonies or malcontent subjects of Hpain. The Lord Chief Justice says (p. 4147) "I will only in " passing repeat my conviction that neither the American nor " tho English statutes were over intended to interforo with the "execution of orders from belligerents by American or British " shipbuilders, but simply to prevent tho ports of tho respective " countries from being used for fitting out privateers, or being " made tho bases of hostile operations." All old English statutes operate in tho several States of the American Union except Louisiana, Texas, and tho territory ceded by Spain and Mexico. Magna Chavta and the Habeas Corpus Act, therefore, propnu vigore are, until repealed, the laws of most of the United States. But, the Federal Government is not bound by the common, or the old statute, law ; and this is the reason why Mr. Adams adduces no argument for the purpose of reconciling the rules of the Wasliington treaty or tho American Enlistment Act with tho provisions of Magna Charta and tho Habeas Corpus Act. With us tho case was diiferent. The statutes referred to are still the leading charters of our civil rights, and to allow the Crown to sot thom at nought during a foreign war, would be virtually to repeal them wholly, as well as to commit the egregious folly of tloing for foreigners much more than we do for one another in our municipal proceedings. Even Dido only said that Trojan and Tyrian would bo treated by her nullo discrimine. She did not say she loved tho Trojans more, and would treat them better tlian the Tyrians. ^neas would not believe such a declaratiun. The American Act of 1819 gives the President a discretion. Need we fear that he will ever use that option in the interest of foreign belligerents in cases where he would remain passive if the contention were between different citizens and not between different belligerents, or a belligerent ^ m I i m 12 and a citizen. Surely, Spain must have often remonstrated in vain, notwitlistanding the extensive powers of the President, and though she could adduce clear evidence of a violation both of international and municipal law. Were we in 18G2, without any evidence at all and on mere hearsay 'as will be presently shown), to confiscate property and to imprison persons, where, if the case were one between subject and subject, it could not keep its ground in a Court of Law one instant. Law is either prohibitory or punitive, or both. The Act of 1819 is only punitive. It does not authorize a perpetual injunction, but only confiscation (founded on legal evidence) as the punishment for a preceding crime. Accordingly the American "case" referc to the " practical inefficiency" of the Act, and comparing the American with the English statute, states that "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 instru- " mentality; whereas the American A.ct is preventive in calling " for executive action, &c." Our Act, however, is, in one respect, apparently stronger than the American, as the latter requires a fitting out and arming to constitute an offence under it, whereas our statute requires only a fitting out or arming. As to the supposed arbitrary powers conferred on the President by the Act, they are given to him only " in order to the execution " of the prohibitions and penalties of the Act." Even he must bring the ship to trial and then adduce evidence. The Act of 1870 makes it an oftence to build, and affects the question of intent, so far as that the vessel can be seized if the builder has reasonable cause to believe she will be employed in the service of a belligerent. The burden of proof is then transferred to the owner or builder. He must prove his innocence. Tiiis was not a rule of our law in 18G2. Lideed, the only mode of acting on suspicion is to require bail or bond. The 10th section of the American Act of 1819 (Hke the 23rd of our Act of 1870), empowers the United States Government to get bond from anv citizen any (but fom an in:! ^ I' in alien), exporting an armed ship. I should like to know how many bonds were ever taken from citizens under this section. Surely tlu citizen would sell to a belligerent at once, and so avoid the giving of the bond. The fact is, that both the American and the English Acts have been so much waste paper, owing to the construction put upon them by the Courts. Well might the Judges say to Charles the First that " every statute " hath its interpretation," and well may an able tribune of the people boast of driving a chariot and six through an Act of Parliament. Law is not what is found in the statute books, but what is administered by the Judges. As the last brush alone gives a character to the picture, so it is the complexion imparted to a statute by judicial construction, and not its inherent letter, that renders it vigorous and effective. The Bill of 1819 was intended to extend the Enhstment Act of 9 & 29 Geo. II. to belligerent as well as recognized States, and to reduce the penalty from a capital felony to a mis- demeanour. (Speech of the Attorney General, May 13th, 1819, Hansard, vol. 40, p. 3G3.) It also sought to prevent the fitting out of armed vessels, and also to prevent the fitting out or supply- ing other ships with warhke stores in any of His Majesty's ports. Upon these points the previous Acts were wholly silent. Not that such vessels may not receive provisions in any port in the British dominions. But, the object of the enactment was to prevent them from shipping warlike stores, such as guns and other things obviously and manifestly intended for no other purpose than war. The American Act of 1818 was, like ours of the succeeding year, intended to extend to unrecognized States the provisions of their earlier Act of 1792. The Acts of Geo. II. were intended to prevent British sub- jects from being engaged in hostility against the British Govern- ment on behalf of the Stuarts (Hansard, vol 40, p. 371), and the aim of the Act of 1819 was to extend the penalties of the pre- vious Acts to enhstment on behalf of the South American colonies, or of Spain, which were then in revolt. The old Acts of Geo. II. were never in one case acted upon. They m Is. ! 14 were a dead letter. At one period, out of 120 companies of Austrian Grenadiers, 70 were commanded by Irish officers At Fontenoy, some of tlie Irish-Frencli brigade were taken but none of tliem were executed. In short, the old Acts, on account of their great severity, were never carried into eifect not even against those captured from the Irish brigade at Mmden, and again at Culloden. The preamble, which is also the first section of the Act of 1819 (59 Geo. III. c. 59), states that the enUstment of soldiers for foreign service, or the equipping and arming of vessels, with- out the lung's hcense, "may be prejudicial to and tend to en- " danger the peace and welfare of this kingdom." How ^ evidently if rival enhsters or rival ships, commence hostihties in British territory or waters, and not by giving cause of com- plamt at international law to a belligerent, for the royal license could not have any eliect on the grounds of such complaint, which would be founded on international law, to which the dispensing power of the Crown never extended. The second section consists of two parts: the first relates to natural-born subjects, the second to any person. A natural- born subject who, without the royal license, shall accept any military commission, or shall enlist as a soldier, or enter himself to serve m any militry operation, or shall accept any com- mission or enlist or enter himself to serve as a sailor or marine on board any ship-of-war, or on board any ship fitted out, or equipped, or intended to be used for any warlike purpose, in the service of any Foreign State, recognized or belligerent, and any natural-born subject who shall agree to go to any Foreign State or to any place beyond the seas, with an intent to serve as aforesaid, though no enlisting- money be paid to him, shall be guilty of a misdemeanour, and be liable to fine and imprison- ment. This first part of the section might possibly be held not to apply to the deponents in the Alabama case, as these were neither enhsted nor had agreed to go to any Foreign State, but were alleged merely to have had an understanding that they should be enhsted on the high seas - when the ship got cutside." The 15 statute is a technical and criminal one, and should be construed strictly. However, it is clear, the first part of section two applies only to natural-born subjects. The second part of the section applies to any person for trying to enlist, but not for enlisting himself. No foreigner could be punished under this section for enlisting himself as distinguished from enlisting others. The phrase "intended to be used for any warlike purpose" means •' intended to be so used before putting into a port of destination." Else the sale of a ship-of-war, and the serving therein in a neutral port, would be always unlaAvful, whereas all admit that such sales are lawful, if the immediate object of the sale is gain, and not a warlike expedition or purpose, svpra § 2. The third section merely prevents the Act from having a retrospective operation. The fourth section empowers Justices to apprehend offenders " on information on oath of any such offence," and to commit the accused, unless released on bail, to stand their trial on indict- ment at Westminster, or at the Assizes or General or Quarter Sessions. This section appears to have been drafted by Sir Boyle Eoach, inasmuch as it requires, that, if an offence is com- mitted out of the United Kingdom, some " Justice of the Peace, " residing near to the port or place where the offence is committed," is to issue his warrant for the arrest of the offender. Offences committed abroad are required by this section to be tried in one of the Superior Courts. The fifth section empowers the Officers of Customs, and if there be none such at hand, the Governor or person havmg the chief civil command, "upon information on oath given " before them," to detain and prevent any such ship or vessel from proceeding to sea, or to cause such ship or vessel to be detained and prevented from proceeding to sea on her voyage with such persons as aforesaid ojj board. This section requires that tlie person giving the infomiaUon yhould specify the facts on which he founds liis kuowledge or belief. It is very clear that this section does not authorize any detention of the vessel when once the offenders are brought 10 ?n \ I aslioro. The next section would be inoperative under any other construotmn of section five. Voy, if tl«e vessel could bo con- demned under tlmt section, she could not also be a security for penalties under section seven. The sixth section directs that if any master, or other person m command of the ship, or any owner, shall knowingly enc:a.e to take on board an ollender under the Act, such master or owner will bo liable to a penalty of £50 for every such person so talcen on board, and the Officers of Customs may seize and detain the ship .«/// such penalties are paid or security given therefor. _ So far it is clear that no absolute power to detain the ship IS -nven. 8ho is only a security for penalties. The master or owner too, olTending under the sixth section, can- not be imprisoned, hut only fined. After paying the fines, lie would be entitled to depart. The seventh section is the only one that relates to the seizure of the vessel with a view to her condemnation. This section (which is the material one of the Act) directs that if any person shall, in British territory, withoui royal license, '< equip, furnish, fit out, or arm. or attempt or " endeavour to equip, furnish, fit out or arm, or procure to be "equipped, furnished, fitted out or armed, or shall knowinc^ly " aid, assist, or bo concerned in equipping, furnishing, fitthig out " or arming of any ship or vessel, with intent or in order that "such ship or vessel shall be employed in the service of any " Foreign State as a transport or store-ship, or with intent "to cruise or commit hostilities against any State, .tc," with wlucl. His Majesty shall be at peace, or if any person shall, lu British territory, " issue or deliver any commission for any " ship or vessel, to the intent that such ship or vessel shall be "employed as afor. said, every person so offending shall be " deeme™ to Ml. D,„lloy, „i,y ,I„| 1,0 „ot pro8co„to „,„1 call tI,o fororaan «» a w,.„„», ? No ,lo„l.t it wa» hotter for him .0 set the G v^rn mont to aot Still if he ha,l eogent ovi.le„co, he „„ght to low Louit and jury hy i.roscciitins in opou Conrt. statomen, „ ,,„„,„ „„,,,„„„ f,„,„ „„ „, ,„i,,,^^f' vn ,f „,,,„,„„„„ „„„,„„ ,„ ..i„i,.„,„„.j,„,„„„^;,„^ oath, w„„M have fallen ,l,„,.t of what wonl,! p,.ol,„bIy been . The ttors and world, to rily con- Sly, and As re- 3 alleged istion in treaty, lers, hut nith, no A pre- ying on prohibi- 2fl tion to the wliole nation not to export contraband. The Crown can, by proclamation, Jbrbid such export, although a proclama- tion cannot create any new crime. For, dealings in contraband arc not at common law strictly lawful, more than at international law. But, until forbidden, no trade in such articles can be punished either at common law or by statute. The opinion of the Judges already referred to establishes this conclusively. Mr. Laird stated in the House of Commons, 27th March, 1872, that " the Ollicers of the Government had every facility " attbrded them for inspecting the ship during the progress of " the building. When the olHccrs came to the builders, they " were shown the ship, and day after day the Customs officers " were on board, as they were when she finally left, and they " declared there was nothing wrong." As the armament was put on board only at Tcrceira, there was nothing in or about the vessel at Liverpool to excite such extreme alarm on the part of the Customs authorities, especially, indeed, as they were daily familiarized, or, shall I say, demoralized, by the sight of the cargoes of arms and ammunition which were shipped to both North and South. The diligence required by the Lord Chief Justice is the pre- ventive, or - due diligence" prescribed by the first of the three rules of the Washington treaty. Lord Palmerston is a sufficient authority, that the Act of 1819 admitted of no such preventive measures on mere grounds of suspicion, without evidence, that would, if not weakened by the trial, warrant a condemnation of the vessel. No doubt it was very difficult for tlie arbitrators at Geneva, while deciding the .-ase according to the treaty rules, to remember that, if the rules were clear law before the treaty was signed, there would have been no occasion to place them expressly at the head of the treaty. The treaty rules, however, cannot be construed so as to impose any con- structive obhgation of diligence on the Officers of Customs to which they were not in re verd liable in 18G2. For, well has Lord Bacon observed '^Diligmta attendas ne cw leqes, qner ad "preterita respicere putantur, ante-acta mjirmant" De Aug Sci. i III ll'^l 80 How hard is the fate of a Lntish Official, especially if he is supposed to possess anyportion of the mind of the Government. If he recommen.ls action, either unpopular or unsuccessful action, he may earn for himself the cor, sequences of just dismissal. If, owing to the want of due knowledge or due diligence on the' part of others, his masterly inactivity comes to be called in question, he finds that the day of atonement for the prejudices and sms of the people was only postponed. Empson and Dudley the Ministers of Henry the Seventh's extortions, would have been put to death by that Monarch if they disobeyed him. But, Henry the Eighth had them executed, because they did obey the commands of his father. A hapless dilemma this for officials : nor IS It at all unlikely that with the transference of much of the royal prerogative and power to the people and their repre- sentatives, the same parties have also inherited the tendencies of the old monarchs to charge every mishap to the credit of their legal advisers. In this, however, they were not abetted by a Lord Chief Justice of England. Had the Lord Chief Justice only recently left the ranks of the bar, he would have remembered how small a residuum of the evidence placed before him on the part of a client survives the ordeal of a rigid cross-examination and the artillery of the opposite camp. Of all the suits instituted only two per cent, reach the stage of judgment ; but of all the evidence laid before a professional man, not a fraction per cent, is left at the trial uncontradicted either by proof positive from the opposite party, or by its own inherent infirmity. Even were Passmore's swear- ing, therefore, more to the point than it was, I should not have felt justified in acting en it, when the affidavit disclosed that not only was there no set proceeding towards an enlistment, but the man did not know whether Butcher was saihng-master or fighting-master. Mr. Dudley having engaged the services of Mr. Squarey, a most respectable Sohcitor of Liverpool, that gentleman appeared on the 21st before Mr. Edwards, with six depositions. The above was the date when the first legal application was made " on in- 81 " formation on oath" as required by the Act of 1819. The chief of these affidavits is Passmore's. It is to it Lord Selborne re- ferred in his excellent speech in tlie House of Commons, 27th March, 1863, when he said that there was one deposition only that was admissible in evidence. As respects anxious care, close attention and due diligence, Mr. Squarey wiU admit that I went over each deposition in conference with him, and debated each statement with pains-taking anxiety. The following is a verbatim copy of all the material parts of Passmore's affidavit : — " I, William Passmore, of Birkenhead, in the County of " Chester. Mariner, make oath and say as follows : 1— I am a " seaman, and have served as such on board Her Majesty's ship " Terrible during the Crimean war. 2— Having been informed " that hands were wanted for a fighting-vessel built by Messrs. " Laird & Co., of Birkenhead, I applied on Saturday, which was, " I believe, the 21st day of June last, \o Captain Butcher, who', " I was informed, was engaging men for the said vessel, for a " berth on board her. 8-Captain Butcher asked me if I knew " where the vessel was going, in reply to which I told him I "did not rightly understand about it. He then told me the " vessel was going out to the Government of the Confederate " States of America. I asked him if there would be any fighting, " to which he replied yes, they were going to fight for the " Southern Government. I told him I had been used to fighting- " vessels, and showed him my papers. I asked him to make me " signalman on board the vessel, and, in reply, he said no '« articles would be signed until the vessel got outside, but he "would make me signalman, if they required one, when they " got outside. The said Captain Butcher then engaged me an " able seaman on board the same vessel vX the wages of M lOs. " per month ; and it was arranged that I should join the ship " in Messrs. Laird & Co.'s yard on the following Monday To " enable me to get on board, Captain Butcher gave me"a pass- " word, the number .' 290.' " The rest of the affidavit describes the vessel, and states the ii ? nfl II in n^poi'lnd on linnid <'ii|»liiiii Miilclior ill Id I niiniiiiiM IIimI. \vt-ii> nllun', ultiMit lii'C. ""'" "'"I'." Ill" lllllilllVll, IMld.'.l, ■• (|,„(, '■'.''; ''*'"M."..Ml.-r. M,Hill,„,(,| ll,.,.,,,;.M.M,nn. wl,.. „n " ' '';'''"^"'" illllin,!,. IM I.. 1... M,„ (l,,;|,(,i„^. ,,.,p^M,.ll." 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Il,;,( •■||,..y \v,.,v ;.,-,>i.,;r lolnyhl lorU.o "Sou(I..M',M;oN..,„,uo„r- w.,s uuvnsislo,,! \viih I,..,- .,1 onoo pnvM...M„,K Mihl p,vv,n;r up.>„ .v,„nunv.v If Hulolior moaut to OvMivoy tins, vvluoh was thoival ob.jool .>fo.iiuppins' tlio voss,.|. tfe ''.f^l*BB BB !..■ wouW hnv. Hai.l "Y..., will nm fi^^l.tinK fl.o moment you leave '• M'lM porl,. W(, will pilla^r,, and uuilw. Hpoil of ovory Northern " v^HHol w„ ,„,.,.!,.•• I ,u„ r,,,. ivo.u M,^yiM^r thai, M.,ioh„r'H vvordfl, "H r<.i.(,rlitHi<>f wa,H hound to accept I'aHHnioro'H Hc^rvicoH in hattlo. Was I'asMinoiv s<. enlisted as to he liahle to he tried by Court Martial if he ahscv.nded •• (!ertainly not. WaH ho com- l'"ll'«''l<> In 'MiliHt wli(.n the vessel reached her port of destuiatiou ? I»y no nuMins. Not a word .i,hout enlisting passed hotween him and Oapliiin Ihitcher. Now the Act of 1 HIS) only provides either '"'• "'-'"I'l «'Mlist.n,.nt. proniises, or agrccmieuts to enlist at a future ti.iK". or el,s(> for engaging persons to serve on board a v.«ss,d about ,.nt(u-ing on actual s(«rvice. The two first supposi- tions I hav.> disposed of. The third could not arise until after the v(-ss,.l reoeived a conuuission from the President of the ('onl\>derat(> Sttites. and was actually armed. From the beginning to the end of Passmorc's affidavit the word enlist does not occur. " Captain r^utcher," Passmore says, "told me the vessel was going out to the (Jovornment of the " Confe.h-ra.te States of America,. [ asked him if there would be " any lighling. to which he replied yes, they were going to fight " for the Southern Government." There was nothing in the world to prevent Captain Butcher, or anybody else, from going to iight for any Foreign Government, provided they did not enlist, nor take anybody on board for the purpose of enlisting bun. - I told him I had been used to fighting- vessels, and I i , ■■! 84 " showed liim my papera. I aHkcd liim to mnke mo Hipnalman " on board tlio vchhoI, and in reply lio said that no articles would '• bo signod until t-ho vohsoI got outsido, but ho would make mo " .signalman if thoy rocjuired ono. Tho said Captain Butcher " then ongaf^M'd mo as an able Hoatnan on board tlio same vosboI •• at tho wa^'os of ,1'4 lOs. per month." ThiH is all of PasHmore's afTidavit that rohitod to his alloi^'od culistmont. Tho rest of the d(>poHitionH roliito to reports about tho vohkoI's military character, which, as f have shown, is beside tho (luestion. Nor would any jury convict Captain Butcher of a broach of tho Act bocauso ho onj,'a.,'od Passmore as an able seaman, and made a conditional promise of promoting him to the office of signalman. If Captain Butcher was really known to have enlisted, and not merely suspected of it, why did not Uv. Dudley hire some ono wlio could got enlisted and thus clench tho matter. Pass- more's statement does not hit tlie mark. Besides he was an accomplice according to his own confession, and the unsupported testimony of such a witn(iss is practically worthless. The Lord Chief Justice calls Butclier "the registered captain" of tho vessel, but it so happens that she was never registered at all, and even if she liad been registered, tliere would have been uo record of tho captain's name. What privity then was there between Captain Butcher and the Messrs. Laird ? The Act made thorn responsible only for the acts of the master or other person in command of the vessel, and Passmore did not know whether Butcher or Bullock was the sailing-master. The Lord Chief Justice tliinks that i\[r. Edwards ought to have conversed with Passmor(>, and asc(^rtained nil he knew. The matter having been referred to me for my opinion, I reported as follows : — " There is not sufficient evidence in this case to justify the " detention of the vessel under the 55) Geo. TIL c. 69. The "only affidavit that professes to give anything like positive " evidence is that of the seaman I^assmore ; but. assuming all " he states to be true, what occurred between the reputed master " (Butcher) and himself, would not warrant a detention under ,.'??f'» . 86 " Hoction 0, nor support an information for a penalty under that "soctica. Nor do I tliink, howovor probable it may seem, "that the vessel is fitted out for the military operations men- " tionod, that sufficient evidence has been adduced to entitle the " applicants to the interference of the Collector of Customs at "Liverpool. The only justifiable grounds of seizure under " section 7 of the Act would be the production of such evidence " of the fact as would support an indictment for the misde- " meanour under that section. " Signed, James O'Dowd." '• Customs, July 22nd, 1862." Mr. F. J. Hamel, the Solicitor of Customs, concurred in this report, and added that there was some evidence of the enhstment of individuals, « and if that were sufficient to satisfy " a Court, they would be liable to pecuniary penalties for security " of which, if recovered, the Customs might detain the ship until " those penalties were satisfied or good bail given ; but there is " not evidence enough of enlistmei^t to call upon the Customs to " prosecute. The United States Consul, or any other person, " may do so at their own risk if they see fit. "July 22nd, 18G2.'' " Signed, F. J. Hamel." The Customs authorities adopted these views, and reported to the Lords of the Treasury accordingly, " but," says the Lord Chief Justice, "accompanied their report with the very proper " suggestion that should their Lordships entertain any doubt "upon the subject, the opinion of the Law Officers should " be taken." This course, which is pronounced by the Lord Chief Justice to be proper, is referred to by Mr. Adams as the reverse as regards me, when I recommended that the opinion of the Law Officers should be taken. On the same date as last referred to, the Secretary of the Treasury wrote to Mr. Layard as follows :— " My dear Mr. Layard— As the communication maybe con- " sidered pressing, I send it to you unofficiaUy to save time. " Perhaps you will ascertain from Lord Eussell whether it is " his wish that we should take the opinion of the Law Officers 80 " as to the case of this vessel. It is stated that she is nearly " ready for sea. Sincerely yours (signed) Geo. A. Hamilton." Does the letter disclose any remissness ? The papers were submitted to the Law Officers on the 23rd, with a request for an answer at their earliest convenience. Two other affidavits were also forwarded, together with an opinion of Mr. (now Sir Eobert) Collier, the private Counsel of Mr. Dudley, to the effect that the Act of 1819 had been violated, and that the vessel ought to be seized. Mr. Collier had given a previous opinion on the 16th to the effect that the case was one only of suspicion. In one of the two new affidavits the deponent states " I " asked him what port he was going to, and he replied that he " could not tell me then, but that there would be an agreement " made before we left for sea." This explains what was meant by the statement in Passmore's affidavit that " articles would •' be signed outside." Butcher could not specify at once the port of destination, as blockade running was perilous, and they could only steer their course according to circumstances. I submit that this explanation would entitle Butcher, on an indictment, to the benefit of the doubt thus raised as to why the signing of the articles was delayed. It seemed to me that there was nothing material in the fresh affidavits, and reported accordingly, but added, "As " regards the opinion of Mr. Collier, I cannot concur in his " views, but, adverting to the high character which he bears in " his profession, I submit that the Board might act judiciously " in recommending the Lords of the Treasury to take the opinion " of the Law Officers of the Crown. " July 23rd, 1862." " Signed, James O'Dowd." The papers were immediately submitted to the Law Officers. On the 25th, Mr. Squarey forwarded a further affidavit from a person named Reddin, who deposed that he was engaged by Captain Butcher as boatswain on board the ship No. 290. " The said Captain Butcher," Reddin proceeded, " offered me " jglO per month, and said an agreement should be signed when -: > -: . 87 " wo got outside. He told me that we should have plenty of " money when we got home, as wc were going to the Southern " States on a speculation to try and get some." It would he a waste of argument to contend that no jury would convict under a highly penal statute on evidence such as that of Beddin. And yet the above is all that was material in his deposition. The rest was merely descriptive of the ship, and of the rumours prevalent respecting her. It appeared to me that Reddin's affidavit rather weakened the case, " as after the lapse of several days since the date of " the former affidavits, the applicants are confessedly unable to " make out a better justification for detaining the vessel." It is no doubt, I added, " difficult to procure satisfactory evidence " in such a case ; but, in the absence of at least a clear primd "facie case, there cannot exist those grounds for detaining the " vessel which the Foreign Enlistment Act contemplated. " Customs, July 25th, 1862." " James O'Dowd." The Law Officers reported on the 29th of July that the vessel ought to be seized. They said in their report " We do " not overlook the facts that neither guns nor ammunition have " as yet been shipped ; that the cargo (though of the nature of " naval stores in connection with war- steamers) may yet be " classed as a mercantile cargo ; and that the crew do not ap- •' pear to have been, in terms and form at least, enrolled as a " military crew and an argument may be raised as to the "proper construction of the words which occur In the seventh " section of the Foreign Enlistment Act ' equip, furnish, fit out, " 'or arm,' which words, it may be suggested, point only to the "rendering a vessel, whatever may be the character of its " structure, presently fit to engage in hostilities. We think, "however, that such a narrow construction ought not to "be adopted." The Law Officers, be it observed, with all respect, do not appear to have recently read the case of the Inclependencia, or Kent, or Wheaton. The opinion is founded on the warlike and combatant character of the vessel. For it concludes by stating " In the absence of any such countervailing I J 8fl \i Ilk J Ml i i <'tt.o. .t, appoarH t„ „h M.ut tho vohhoI. car^o. an.l HtoroM. may l»'in-opor]yrou,lo,.n.o,l.- Hut. M... vossol n,„l,l only I,., a Hoc.inty t„r p.maltioH an.l n„t cn.lonu.o.l ,ih far as tho allo«..,l onhstmonl Ih oonoorno.l. Thin roport nun. t<.. Ia(,.. Tlu, vohhoI "'t.u-t Collier tol.l Inm tho caso was ono of Huspioion only. l-lid.toon clays pasHo^" " The evidence must come to the Government. It was not for " the Government to go to tlie evidence. Of course it naturally "happened that this worked entirely for the benefit of the " malefactors, and to the injury of the party that ought to have "been protected." But, in page 1292, his Lordship says, " Nor could ine Government call on the parties interested in " the vessel to show that the purpose for which she was being " built was lawful, till they liad made out in a Court of Justice " at least a sufficient pHmd facie case to call upon these parties " for an answer." Yet, shortly after, and in the same page, the Lord Chief Justice says, that the Government ought to have enquired of otJier "parties capable of giving evidence." It appears to me that there is the same constitutional difficulty in making the latter enquiry as in making the former one, if the Lord Chief Justice means that the persons alleged to be enHsted ought to have been interrogate d. What a Justice of the Peace does IS to caution the accused against making an admission, and if he fails to give such caution, the confession is valueless But, if the Lord Chief Justice does not refer to the persons enlisted, but to others, he is referring to hearsay, the very thing that could not make out the <^ primd facie case," which he says was necessary to warrant calling upon any party for an answer. The right to put the interrogatory implies, according to the Lord Chief Justice, that the desired prima facie case has been already esta])lislied by legal and not hearsay evidence. In fact, I may say of the supposed right of our Government to interrogate accused persons, that such powers though known to French "and Scotch Juiiot^.udence. are wholly abhorrent to the common law of England. This ground of complaint against the Govern- ment, to use the words of the Lord Chief Justice (p. 1298) -pro- u ^ > «*!*» u f 41 "ceeds on an entirely mistaken notion of the powers of a «' Constitutional Government in a free State." The rules of the treaty do not dispense with the element of intent. But, instead of legal evidence of such intent, they re- quire merely " reasonable ground" thereof. But cui bono this "reasonable ground" if it is not legal evidence, it will justify a Government in seizing a ship. But, it will not exempt them from being mulcted in damages, unless protected by the very objectionable mode of legislating ex post facto by a bill of in- demnity, or priviUgium. Nor, though the ship is seized, can she be detained, except on legal evidence sufficient to warrant her condemnation. This is the law under the Washington treaty. But, as our Act of 1870 goes farther than the rules of the treaty, and shifts the burden of proof to the owners of the " suspected vessel," the case is different under that Act. Yet, as regards the application of the treaty rules to the circum- stances of the ^/aiawa in 1802, "reasonable ground" of sus- picion would only have warranted a temporary arrest. The Lord Chi^f Justice himself admits she could be detained only with a view to legal condemnation, and if not condemned on proper evidence should be released. Lord Selborne (then Solicitor General) said in the House of Commons, 27th March, 1868, that the accusations against the Government with respect to the Alabama were «' entirely " groT^dless," and again he adds, that they «' are utterly des- " titute of solid ground," and denies that the "Act was meant " to prohibit all commercial dealings in ships of war with " belligerent countries. She might have been legitimately built "for a Foreign Government; and though a ship-of-war, she " might have formed a legitimate article of merchandize even "if meant for the Confederate States." On the 27tli March, 18G3, Lord Palmerston said in the House of Commons, with respect to the Alabama claims or com- plaint, "Those complaints, I think, are totally unfounded on the " part of the American Government. The Solicitor General " has demonstrated indisputably that the Americans have no W^J-~--A. i. I'ff I rN 42 '• oanse of complaint aprmnst ns. Ho Ims shown tliat tho British "Oovovnnio.it iiavo dono ovorytliinrr w],icl, tlio hiwR of tho " country onahh-,1 Ihoni to ,1<>. You cannot scizo a voasol nn.lcr "tho Foroi-n EnH.stniont, Act unioHs you havo ovi.lonco on oath "confirminf? a just suspicion. Slio sailed from this country " unarniod. and not jiroporly fitted out for war, and slu^ rocoiv(>d " her arnuunont, o.pnpnu-nt. and crow in a l()roi-n port. Her " conditio], at that time {i.e. wlion at Liverpool) would not havo " justin(>d a seizure. The law is in this case of very difficult oxcou- " tion. This is not the iirst time where that has he.Mi discovered. " When the contest was raf^nng in Spain hetwcen Don Carlos "and gueon [8a,l)ella, it was my duty-tho liritish Govornmont "Iiavni,!,^ taken part with the Queen- to prevent supplies from " IxMug sent to Don Carlos from this country. There were several " cases of ships fitted' out in the Thames. But, thou^'h [ knew " they were intended to jro i„ aid of Don Carlos, it was in.possihle "to obtam that information which would havo enabled tho " Government to interfere with success. Thore must, however, " bo a deposition upon oath, and that deposition must be made " upon facts that will stand examination before a Court of Law." Tho Attorney General said in tho House of Commons 1st AufTUst. 1870, " Tho A/ol>a>,>a escaped by a stratagem which " we could not foresee, and which, as wo maintain, could not " be prevented by ordinary care in the then existim? state of the "hiw. We deny that we are responsible to the American " Government for the escape of the A/ahama.'' Vessels will always bo able to escape in this wav. The Caro/ine attempted to invade Canada from tho United States. Walker's expedition to Honduras is another instance; and durinjv the Eussian war, a vessel-of-war called the AmeHca, was built in the United States, brouu/ra was seized ; so were the Birkenhead rams; and the Fhrufa, as already mentioned, at Nassau, bv virtue of the pre- ventive powers alone of the Government. The Oreto loft Liver- pool on the 22nd March, 1802, and was afterwards seized at Nassau, but she was acquitted, the evidence being insufficient. i;=??wW» •'■' 48 In the caso of the Alexandra it was clearly proved that the vessel was built for tlio Confederate Government, and was to u certain extent equipped for service. Yet, the Chief Baron directed tlio jury that the Act did not apply, because the vessel was not fully equipped; and on appeal to the Court of Exchequer the Court was equally divided in opinion. When Earl Russell detained the steam rams, his proceed- ings were severely criticised in the House of Commons, and on a division— nominally for papers, but really amounting to a vote of censure-his conduct in stopping the steam rams was approved by a comparatively small majority. (Speech of the Attorney General, House of Commons, Ist August, 1870.) Shortly after the passing of the Act of 1870, two vessels, the Steady and the Sharpshooter, were seized in the Port of Liverpool, but both ships were soon after released. Thus out of the four cases that arose under the Act of 1870, viz., the Sleadu, the Sharpshooter, the later national, and the Gauntlet, the Government succeeded only in one, the case of the Gauntlet, while they totally failed in the case of the Alexandra. In the case of the Inter national, a Telegraph Company, under a contract with the French Government, shipped some telegraphic cables to be laid down between the French ports on the North Coast during the war. The steamship which had the cables on board was seized under the Act of 1870. But, the Court decided that as the object of the Company was gain,' and not glory, the Act did not apply. In the case of the Gauntlet, aste...-tug which towed a prize of war from the Downs to Dunkerque, was held not to have violated the Act, as the transaction was not directly military, but for gain solely. § 6-THE GENEVA ARBITRATION. The three rules prescribed by the Washington treaty for the guidance of the Arbitrators at Geneva were as follows :— "A neutral Government is bound " First, to use due di'igence to prevent the fitting out, " arming, or equipping within its jui-isdiction, of any vessel,' If^' h'l 44 " which it has reasonable ground to boliovo, is intended to cruise, " or to carry on war against a power with which it is at peace ; " and also to use hko diligence to prevent the dcoarturo from its "jurisdiction of any 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." Spain and Mexico will doubtless rejoice at the adoption of this principle by the United States. I need only say of its pre- ventive character, that it is wholly new to our jurisprudence to seek to prevent a crime not on legal evidence, but on " reasonable ground," that is on suspicion and hearsay, and not on sworn proof cf revelant facts. The second proposition runs thus : " Secondly, not to permit or suffer either belligerent to " make use of its ports or waters as the base of naval operations " against the other, or for the purpose of the renewal or aug- " mentation of military supplies, oi arms, or the recruitment "of men." This proposition, so far, contains nothing new, but it is materially affected in meaning by the third proposition, which is as follows : — " Thirdly, to exercise due diligence in its own ports and " waters, and as to all persona within its jurisdiction to prevent " any violation of the foregoing obligations and duties." This gives a new point to the second proposition, because it requires the Government to enforce that doctrine with " due diligence," that is, as the phrase is interpreted by clause one, on moral or prolnible grounds of suspicion, even though these should fall short of legal evidence. The adjudication at Geneva, of course, is not to be considered as founded on a review of the legal merits of the case. The award is not the judgment of a Court of International or Municipal Law or of a Court of Prize. It is the mere summing up, so to say, upon a question of a disputed account, in ac- cordance with the provisions of the Washington treaty. It reminds one of what Lord Kenyon suggested in the case of 45 "Habershon v. Troby" (8 Esp., 38.) It was an arbitration case, and, though dissatisfied with the award, he said that possibly, in arriving at liis conclusion, the arbitrator had pro- ceeded to cut the knot rather than loose it, according to the strict rules of law, from a wish to do complete justice between the parties. England and America are, of course, bound by their own agreement. But foreign nations are not bound by it, nor is there a word contained in the judgment of the arbitrators that has the authority of any decision in a Court of Prize. However much, therefore, the public may admire the judgment of the Lord Chief Justice, it is not hke a decision rendered by him on a question of municipal law judicially brought before him. He has acted at Geneva merely as a private arbitrator bound by special treaty and rules, and was not expected to devote his con- sideration to abstract questions of law. But, that was the duty of the Government and of its officials dealing with the Alabama case in 1862. To ascertain what the powers and duties of an arbitrator are, the submission which confers the one and imposes the other, must be carefully regarded. By this alone can the in- tention of the parties be ascertained. Of course an arbi- trator is not a counsel or advocate, and although the Lord Chief Justice stated that he regarded himself as, in some sense, the arbitrator of England, yet he was not so, in any sense, that can be tolerated by sound legal principle. Vide Eussell on Arbitrations, p. Ill to 114. The treaty, however, besides its peculiar rules, was what a lawyer would term an executory or inchoate draft of heads of agreement, rather than a complete deed drawn with the usual formahty and care. To call a finding under it the result of a legal enquiry is incorrect. It was a poUtical and a friendly com- promise, and was so understood. Are, then, the Cabinets of the United States and of England to be blamed for this mutual set off of negatives ? By no means. On the contrary, the two Governments are most highly to be praised for theii' beneficent, though somewhat cirouitouB action. I ^V-^ 'J- •.-y^i^t* js&AsM 4fi The position of our Government was not so difficult as that of President Grant, inasmuch as we won on the main issue— the indirect chiims. But, wliy, then, must we call the subsequent proceedings a legal enquiry into liability, or why regard the damages as the finding of a legal tribunal which decided on the law and facts. No ; at Geneva law and evidence were, by the implied consent of the parties to the arbitration, sacrificed to the desire of both nations for peace. Those concerned in the Alabama case in 1862, can, therefore, regard the Geneva award, as every lawyer must regard it,' as a non-judicial finding. The Commissioners of Customs had to act according to the mode pointed out by the Foreign Enlistment Act 1819, that is to say, by means of legal evidence, judicuil process, and the known forms of law. Had they been in the happy position of the Court of Arbitration, and were masters of law, fact, evidence, their duties and discretion might have been different. But, the question they had to consider was not the politic one how far it was desirable to conciliate the Northern States, or to irritate the Southern ones, but the simple legal problem how to fit the evidence forthcoming in the Alalja?na case to the Foreign Enlistment Act, and so to secure a verdict. It may be, doubtless, desirable that High Courts of Concilia- tion should be often held. But, let us not mistake them for legal tribunals. The lay members of the Geneva Court were ''as innocent of a knowledge of the laws of evidence as they were of any acquaintance with the Foreign Enlistment Act the day before they were appointed arbitrators. Every one who has at any time acted as an arbitrator feels that he is not bound by the strict rules of law. Indeed, if he is not a lawyer, he cannot be bound by what he knows nothing of. He, therefore, acts with rough and ready justice, and no one can doubt that this is superior to anything like technical restraint. The President perceiving that he was before a court of honor and not of law, therefore, naturally enough wished to re- tain the claims for indirect damages in the American case, even though he expected "no award on foot of them." For, he 47 wished to put his whole case in its integrity, and not in a mutilated form before a Court, which, not being wholly com- posed of lawyers, would naturally aim at doing comprehensive and not merely technical jastice to the parties concerned. The course which the Government of England, and especially the Commissioners of Customs, had to pursue in 1802, was of a very different nature. Their obligations were of a legal character, and they could not entertain any consideration not founded upon the law of the land. Let no one blame the Customs Department as the fount and so\irce of the angry feelings whicli America has entertained towards us on account of the escape of the Alabama. That escape would have taken place, and those feelings would have arisen, although Sir Robert CoUisr had pleaded every form of indictment known to the criminal code, and though the Lord Chief Justice had with his usiial exhaustiveness enlightened the jury as to tlie state of the law, the question of fact would have remained, and the jury— even if Piissmore's evidence were not rebutted, or weakened, as it certainly would be —would have considered the case not proven, and would have acquitted Captain Butcher. Let me suppose that the form of a trial was gone through, and that the Alabama was acquitted. Would this have satisfied America ? By no means. An acquittal would have exasperated the Northern States. They did not want trials under an Act which they deemed " a mockery, a delusion, and a snare," but they wanted a detention of the Alabama by force of the inherent prerogative of the Crown. Even, this demand was doubtless entertained, and duly considered, by the Government. But the Officers of Customs do not pretend to wi( Id such high power, or to have any duties in respect to contraband, except those prescribed by statute law. Municipal law, indeed, is not the measure of neutral duty, and it was open to Americans to contend that our Foreign EnHstment Act was not in accord with international law, al- though their own Act was so. This argument is quite tenable, I ^t^ - / I ll.li 48 and even granting that a neutral State, or citizen, could legally sell ships-of-war to a belligerent, yet, a neutral State may have been bound to take the initiative and enquire respecting the intent of the sale, whether it was a commercial bargain or a military one. Assuming, however, that I have stated the law on this point correctly, and of this Mr. Dana is my authority, still, it is possible that the Executive of a nation may be bound to take the initiative and to use due diligence in ascertaining the proximate purpose and intention of the builders. This was a question for Earl Eussell, but, not for the Customs authorities, whose sole guide of conduct was our own Foreign Enlistment Act, and not the American one, or any new fledged rule of inter- national law. Now, if our law would have justified such domicihary visits and prying investigations in 1862, why did the United States get the three rules prefixed to the treaty ? This would have been unnecessary if international law, much less our own municipal law, were already to the same effect. Is not this an ex absurdo proof that, if the Customs authorities acted iu 1862, as the Washington treaty, the American Enlist- ment Act, and our own Act of 1870, direct, they would have acted illegally, § 7~C0NCLUSI0N. Briefly to summarize the foregoing statements, it is clear that according to international law a neutral may sell any des- cription of contraband (including ships-of-war) to a belligerent, without involving his Government in a breach of neutrality' He has the right to sell, and the belligerent has the right to capture, if he can, m transitu. These are conflicting private rights, which give no casus belli. The only question regarding such sales is whether the neutral territory is made a base of operations, besides being merely the market for the contraband. If the ship is fitted out for the purpose of at once entering on a career of hostilities, the property in the ship of any person so offending, or having know- ledge of the purpose for which the ship is fitted out, is forfeited. 40 f In tlin spocial caso of cnlistmcut, if tlioro is nothinp: move proved, tho sliii) cannot bo confiscated or periimnently detained (wliicli implieH confiscation), but only kept as a security for the penalties imposed by the sixth section of the act, viz., £50 for each person enlisted. So far as enlistment is concerned, the property of innocent shipowners may be rendered liable for tho penalties. But, the complete confiscation of the ship can only take place through the conscious default of the owners. None of the affidavits charged any complicity on the part of tho Messrs. Laird with any offender against either inter- national or municipal law. The affidavits were all evidently founded on the vain assumption that, if the warlike character of the vessel were proved, a breach of the Act was committed ; whereas the only evidence in the affidavits that could be acted upon was that relating to enlistment, and for this the ship could only be detained until the penalties recovered (if any) were paid. The change in the law effected by the Act of 1870, the adoption of special rules in the Washington treaty, and the abuse of the Act of 1819 and its framers by Mr. Adams, show satisfactorily that the Act of 1819 did not authorize the action that the American Government called for. Had the Customs Collectors acted as the Act of 1870 requires, they would have rendered themselves liable to damages at the suit of the Messrs. Laird, and to dismissal at the liands of the Government. Collectors of Customs are gentlemen of liberal education, and capable of carrymg out the ordinary directions of a statute. But, to give them a discretion to involve this country in war with any belligerent, is to confer on persons who do not profess to be very astute in political science, a degree of arbitrary power that could hardly be entrusted to a Secretary of State. Besides, if the Collector of Customs at Liverpool is to have the powers referred to, so should every Collector throughout the whole United Kingdom. The " due diligence" referred to by the Lord Chief Justice means of course diligence according to the rules of the Wash- ington treaty. Mr. Adams explains the phrase as meaning w 66 diligence proportioned to the importance of the interests at stake. But, Mr. Adams forgets, that the South had an interest m the gravity of the situation, and that diligence is not <ntt.,w.uTnu(,|.n-.h.U.ntion , v.n in ll... opiui..,. ,.r M.. ^.ul.a SluU.s own 0<.uns,.|. I.onI (||..n Si. Iluj,l.) Cain.s, an,l Mr. AhU.sh. as ainu.l.v .li..w„. w..,v uf ihu Han... npinion. VVt, M, was HM^.,...stc..l I.. Mr. I),„||,.v, that J.o „n;rht ,,n,80. cul. .( h. wish..,!, un.l corluinly .uvy lacihty wcul.l J.avo hc.n "llonhMl l.y th. (J.m.rnnu.nt t„ hrin;; th. h.^ul ,,u.Htu,nH to ..p... iHsu.-. as was aJtrrwanls ,lon. in (I,,, nine, ol th.. A/,,ra,u/ra. 1 lyoounm.n.h.l thai (hr opinion of th. I.,w Ollirrrs ofthoCrown sl.oul.l IM lal<,.n. Tho Law 0111....... .n th.if (irst opinion -.tvo only Ih. conditional .vply thnl '.if (h. stntonK-nls nm.lo hy " Ml-. A.huns couM h. «uhstantialnl.- Ihr ship ou^M.t to bo (Ic- tainnl acoovdinj,' to th. existing' st.t.- of th.. lads or oviclcnco. IhoLawOlhcorsinth.M.- socon.! opinion ivconnnon,]o,l action Hbsoh.tely; r.or do I hy any naans .luostion tho soundness ol that opnuon. For. nuu.icipal h.w is not no.-ossarily tho standard of nontml.h.ty, and tla^ Law Olm-ors may Imvo con- Bulorod that tho Act of IHII. was d.foctiyo (and what statute IH not) n, oopinj; with Ihr oyils it .-ont.Mnph.tod. Jh.l the Customs authorities could only aH under tho statute, and not by lorce of the f,n-eat an.l undolined powers of the Crown at common or interna I ional law. TJie array of autlioriti.-s cited l.y nio, of whom F now need merely repeat the names of Lord I'ahnerston .mmI Lord S.dhoruo IS conchisiyoly iu fayor of the assertion, th.l neither a,t intor- uational nor at munu-ipal |;,w .-ould the .\/.,fjanM have been :1^''--'""^''<"'"1 i-"-'l Seilu.rn,. ..,ss...h.d in his celebrated speech m the House of Connuous, on «27.l. Ahuvh. IHOJJ, that in Pass- moi^-s allidavit alone was (her ■ a,nythin,,^ lik,^ le^.tl evidence as distnio-msliod from mere statements founded on hearsay or general rumour. If I had been slow in givin- my opinion \vhen tho docu- nients ^yore phiced before n.e. \ would be guilty of a want of " due dd.genco.- If 1 did not ree.Mum.Mid recourse to llie Ic^al advisors of tlie Crown, I would have been possibly negligent. J3ut. certainly, no one can accuse the Customs authorrtirs. or I B8 m.VHolf iiidivi.luiiU.r, of a Lrciidi of duty, in not niHhin« into Court with a loii^j calalo^MU! of moral rliarRPs a.'jfaiiiHt tlio South, whik) tho North wan purnuin.^' its own trade of contraliaud with- out iiiiulrancc. If thu (iolh-ctor of CustoiuH at Liverpool, on liis own motion attempted to intorfern with cither hranch of this trado, thoro would he an out(!ry throu,','hout tho k'n<,'th and breadth of this land. (Mijuiriiij,' whcthor tho nation had not fallon under Homo new and mysterious despotism, whidli threatened to revive the now fad(!il memory of ship-money and arhitrury commitments. Tho fore<,'oim,' observations have liocn otYorod by mo to tlio public in the conlldenco that a eiiuse le-,'ally just is certain to obtain a due appreciation. Tiio sky is now clear from all the threatening clouds that sd lont,' obscured the diseusaion of this question, and the exhaust! V(! remarks of the Arbitrators at Geneva have left nothing,' to bo desired in respect of information on the rights of neutrals as regards trado in contraband. J lad the South boon victorious, nothing would have been heard of tho Alahiimn trouble. lUit, a lingering feeling has always prevailed in the mind of United States citizens that tho Southerns wore rebels and not entitled to trado in contraband. This impression has made itself manifest in tho indirect claims, and in the other various charges against England of breaches of neutrality- charges which only prove that our Government accorded to the South a belligerent status. The Lord Chief Justice has stated that the complaint of the North in respect to tlu! Alnbamu has boicn well founded ; and as regards the Washington treaty, there is little ground for disputing that proposition. Hut, viewed in connexion with the actual law and facts of the period in question, the conduct of the Customs authorities and officials is beyond all doubt justified by every rule of law and official duty ; and they could not have initiated in 1HG2 those searching measures implied in the Washington treaty without exciting the moet extreme surprise on the part of the whole nation, and without turning themselves into objects of ridicule in any Court in which they commenced proceedings against the Alabama. kP! r u H: m H 64 If my remarks on these points are well founded in law fact, and evidence, or rather the want thereof. I hope. that they do not require farther corroboration, although I can appeal to the high authority of the late Lord Chief Baron and of the emnieut American jurists Story and Kent. If, on the other hand, the Lord Chief Justice shall appear to have measured the duties of the Customs authorities in 18G2 by the light of the new rules of 1871, and not by the law of the former period only, I trust, that his Lordship's views on this head will not acquire' any confirmation from the fact that he is one of the highest Judges of the land. It is a question of reason and law, and not of authority. I have endeavoured to argue it fairly and respect- fully to all concernoci in it , and I hope I have shown that the - due diligence" of an official consists in enforcing the law as it IS, and not in seeking tj ascertain what it ought to be. The law is now altered, and the Customs authorities will doubtless enforce the new law with as much zeal as they respected the old The change effected show that they estimated their duties aright; else no change would have been necessary. It is doubtful whether the Act of 1870 will keep its ground as long as Its predecessor of 1810 did. However, whether it does or not. It IS just and necessary, that the conduct of officials should be' tested by their observance of the laws for the time being, and not by their usurpation of executive discretion, or their anticipa- tion of being iiidemnifi'-d by any ex post facto enactment. The law that is, is right for them. Its amendment is the province of the law reformer. But, obedience to the law of England should, I submit, be the only aim of every servant of the Crown, whether his functions be executive, judicial, or administrative. In a recent speech addressed to his constituents at Oxford, Mr. Vernon Ilarcourt, no bad authority on this subject, thus expresses his coincidence in niy views. I might cite other high instances to the same effect : — " I have always thouglit and contended that under the law " of nations, as it existed at the time of the escape of the *%.. 66 "Alabama, no liability for breach of neutral obligations could " have been laid to the charge of Great Britain. I think I may " assume that now that position is, in fact, admitted. For, in "order to establish that liability, ncAv rules have been laid " down. (Hear, hear.) But it is under the new rules, and " not under the old law, that the indemnity is to be paid. " (Hear, hear.) Well, it may be said that this is an anomalous " proceeding, and that it is open to all the objections which " apply to retrospective laws."