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Lorsque le document est trop grand pour Atre reproduit en un aaul clichA, il eat film* k partir da Tangle supArieur gauche, de gauche k droite, et de haut en baa, en prenant la nombre d'imagea nAcessaire. Lea diagrammas suivanta illustrent la mAthode. rata lelure. 1 2X 1 2 3 1 2 3 4 5 6 it I ( '^:ujWhi- ii:riri UK', Neutral Relations AND THK TREATY OF WASHINGTON FROM "THE CAPITAL," WASHINGTON CITY, WASHINGTON, D.C.: H'OILL i. WITHEBOW, PRINTERS AND 8TEBE0T7PEB8 1872. \r \o 7^% s^^ c ^\ QUEEN'S UNIVERSITY LIBRAW NEUTRAL RELATIONS AND THE TREATY OF WASH- INGTON. THE UNITED STATES, PRIOR TO THE REBELLION, THE CHAMPION OF THE RIGHTS OF NEUTRALS. Up to the time of the southern rebellion we had always championed the rights of neutrals, maintaining that neu- tral nations had a perfect right to trade with either of the belligerents, aiid to supply them with munitions of war, or anything else; and that our Government was not liable for the unauthorized acts of our citizens acting as filibusters, privateers, or sympathizers. THE WAR OVER, OUR RETURN TO OUR EARLY LOVE, SHOWN BY BANKS'S BILL ON NEUTRAL RELATIONS. Very soon after we ceased to be a belligerent, we began to show unmistakable signs of a desire to return to our early love. This is shown by the unanimous vote of the House of Representatives in favor of Mr. Banks's bill to remodel the neutrality laws. Section 10 of that bill enacts, that although our citizens shall not "knowingly be con- cerned in the furnishing, fitting out, and arming of any ship or vessel, with intent" that it shall be employed to cruise against a country at peace with us, yet, "that nothing in this act, or any existing law, shall be so construed as to prohibit citizens of the United States from selling vessels, ships, or steamers, built within the limits thereof, or ma- terials or munitions of war, the growth or product of the same, to inhabitants of other countries, or to governments not at war with the United States." {d9th Congress, 1st ses- sion, H. B. Bill 806.) This bill was reported by the Com- mittee on Foreign Afiairs, " to which was referred for con- sideration resolutions concerning the struggle of Ireland 231561 for independence." The vote on the bill was taken by yens and nays. Nai/s, none. Under this law any number of Alabamas might be built and sold in the United States to belligerents, with full knowledge of the inteniion to use them as ships of war against a country at pence with us. Whilst we were nt war with the Confederate States we became violent opponents of the rights of neutrals. Accord- ingly we got up, amongst other complaints against England, the charge that she was not sufficiently vigilant in watching a ship (the Alabama) that was being built in an English port, and which ship was capable of being used as a ship of war; that consequently she got out of port upon the false pre- text that she was going on a trial trip, and then, when be- yond English jurisdiction, she got a fitting out and arma- ment, and proceeded to capture many of our vessels. Now, with the most marvellous inconsistency, we persist in con- tinuing to claim damages for this alleged negligence, whilst we are at the same time proclaiming to the world that our citizens ought not to be prohibited f^-om makiny and selling ships to belligerents to be used as ships of war ^ provided only that the purchaser is not at war with us. That is to say, we maintain that if any body in England sold a ship to the Confederates, that might be fitted out and used as a ship of war, after furtively getting out of an English port, the Eng- lish government must make full compensation for the cap- tures made by such vessel, if its escape could have been prevented by vii> ilant detectives and officers. But that, on the other hand, we may, under the like circumstances, make and openly sell such .mips to countries at war with England, although the sellers are well aware that the ships are to be used as war vessels against England! ELOQUENT REPORT OF THE HOUSE COMMITTEE ON FOREIGN RELATIONS DENOUNCING THE LAW WHICH INTERFERES WITH THE SALE OF SHIPS TO BELLIGERENTS. The committee which reported the above-mentioned bill presented a report, containing a lengthy review of the his- been hat, on tances, witli e ships tory of 01 r neutrality laws. In that report, the rija;ht of our citizens to build. and sell ships-of-war to foreigners is very ably maintained. The committee say: •" The recent improvements in naval architecture are such as to diminish the distinctions between merchant vessels and ships-of-war, and to facihtate the adaptation of one to the purposes of the other. A strong-built, switt-sailing mer- chant vessel or steamer could be made with a single gun an etfective war vessel. To prohibit our citizens from build- ing such vessels or selling materials for their construction at a time when all nations except our own are at war, be- cause they may be employed for lutstile purposes by foreign subjects, or to demand bonds in double the amount of ves- sel, cargo, and armament, and to require officers of the customs to seize and detain them whenever cargo, crew, or ' other circumstances' shall render probable a suspicion that they are to be so used, and where American citizens are part owners only, is substantially to deprive them of their rights to engage in ti.e construction of vessels, or to furnish materials therefor." INCONSISTKNCY OF THE COMMITTEE'S ARGUMENT WITH THE ALABAMA CLAIMS. It seems to have occurred to the committee that the doctrine contended for by them might be deemed incon- sistent with the Alabama claims. They undertake to refute that idea, and contend that England is liable, because the vessels built in England, which became confederate ships-of-war and captured our vessels, were built in viola- tion of the English act of Parliament. According to the committee, the English builders committed no act wrong- ful in itself, did not violate any rule of international law; but only exercised what would have been their right, " to engage in the construction of vessels," but for the provis- ions of the English neutrality act. It may be doubted, however, whether they did violate the English law at all; but if they did, that is a matter which we have nothing to do with. The enforcement of that law concerns England alone, where no violation of international law is concerned. The committee, by way of additional argument, say: •' 0«r complaint is biised upon" i\\Q premature roco^iiition of the rebels ji^ belligerents; and the committee call them pirates. That basis is a very poor one. It would have been ab- surd and mouHtrous to treat the Southern States — each of which had a complete system of government — as piratical. The confederate government held complete sway over the seceded States. We are the last people on the face of the earth to complain of promptitude in the recognition of bel- ligerency, seeing that we have always been prompt in that respect, and doubtless always will be so, especially when people rise to throw oft' a government which we deem tyrannical. Besides, we declared a blockade of the south- ern ports, not an embargo, and thus we ourselves gave the confederates the character of belligerents. The committee say : ♦'The highest interests of civilization demand that the liberties and rights of neutrals should be extended, and the privileges and powers of States at war diminished. Upon the recognition of this principle depends the progress of nations, the independence of States, the liberties of the people. To restrict the rights of neutrult*, and enlarge the power of belligerents, is to reject the teachings of Chris- tianity and the improvements of civilization, npd to return to the doctrines of uncivilized nations and the practices of barbaric peoples. "In reviewing the statute of 1818, we cannot escape the conclusion, that it is founded upon an opposite and unsound philosophy; that it disregards the inalienable rights of the people of all nations; that it was imposed upon the coun- try by considerations aft'ecting exdusively the political interests of other nations; that it criminally restrains the rights of nations at peace for the benefit of those at war; that it was intended to pernetuate the supremacy of favored nations on the sea. It properly belongs to another age, and is not of us nor for us." RianT OP OUR CITIZENS TO SELL ARMS TO BELLIGERENTS — RE- VERSAL OF GENERAL M'dOWELL'S ORDER PROIIIDITING EX- PORTATION OF ARMS TO MEXICO — OPINION OP ATTORNEY GENERAL SPEED, DECEMBER 28, 1865. , , We have always insisted that our people have good right to sell arms to belligerents, subject, of course, to the risk of capture by the opposite party. Can any good reason be given why it should be unlaw- ful to sell a ship, capable of being made an effective war vessel, to a belligerent, and yet be lawful to sell to that belligerent guns, rifles, powder, and balls? We got arms and munitions from England, and so did the confederates; and it is doubtful whether we should have been the gainers by the exclusion of both parties from the market. The right of our people to sell arms to a belligerent pur- chaser is well known to lawyers; but as there seems to be some misapprehension in the public mind on the subject, it may be well to advert to a very recent event, in which the right was vindicated by our Government. , General McDowell, having prohibited the exportation of arms from California to Mexico, the Attorney General, Mr. Speed, was called upon for his official opinion as to the legality cf that prohibition. In his opinion, under date of December 28, 1865, {Ex. Doc. Mexican Affairs^ vol. 2, p. 229,) which, it will be observed, is after the termination of our war, he says : "Now, I apprehend it to be well settled, that neutrals may lawfully sell at home to a belligerent purchaser, or carry themselves to the belligerent power, contraband ar- ticles subject to the right of aeizure in transitu." {Kent's Comm., p., 142.) In the cpse of the Santissiraa Trinidad, Mr. Justice Story, in delivering the opinion of the court, said : "There is nothing in our laws, or in the law of nations, that prohibits our citizens from sending armed vessels, as well as munitions of war, to foreign ports for sale. It is a commercial adventure, which no nation is bound to pro- hibit, and which only exposes the persons engaged in it to the penalty of confiscation. 7 Wneat.f 340." 8 Mr. Seward, Secretary of State, instructed General Mc- Dowell to revoke his order. General Grant had revoked it directly he heard of it. The committee, in the aforesaid report on neutral re- lations, argued, and with great truth and justice, that the eit'ect of the restriction, as to ships, imposed by the exist- ing law of 1818, " is to per2Jeiiiaie the subjugation of States vnthout naval force to the will of dominant maritime nations." Why should that policy be continued? We allow our- selves to be influenced too much by ancient practices. Why should a nation without a navy, or with only a small navy, be harried .*\nd worried and oppressed with impunity by a great naval power, when, having money with which to purchase ships, it could defend itself if allowed to do so? OUR OLD ESTABLISHED DOCTRINE, AFFIRMING OUR NON-LIA- BILITY FOR THE UNAUTHORIZED ACTS OF FILIBUSTERS, PRI- VATEERS, &C. Formerly, when we were the champions of neutral rights, ■we used to lay down the doctrine broadly, that we were not liable for the unauthorized acts of our citizens in fitting out privateers to prey on the commerce of belligerents; nor for any filibustering expeditions to Texas, Mexico, Cuba, or elsewhere, although the money and the men for such expeditions were sometimes obtained through adver- tisements, public meetings, and the most open and noto- rious means, which could easily have been suppressed by the State and federal authorities. THE DESTRUCTION OF THE COMMERCE OF PORTUGAL BY BALTI- MORE CLIPPERS — OUR REPUDIATION OF ALL LIABILITY. At one time the commerce of Portugal was destroyed by Baltimore clippers — privateers — sailing openly, without the slightest attempt at concealment, out of the port of Baltimore, under the flag of the seceding or revolting pro- vinces of Portugal, and many of the leading men of Balti- more were interested in the business. \ti \ V, 9 The Portuguese government contended that our Gov- ernment, or the State authorities, could and ought to have restrained these operations; and, having failed to do so, that our Government oug'nt to indemnify the sufferers. How did we treat tliat chiim? Wo mot it with a plump denial of the obligation assumed by the claimants, and maintained that no nation had ever admitted its responsi- bility for the unautliorized acts of its citizens beyond its jurisdiction. {Letler of J. Q. Adams, See. of Slate, to the Chev. Correa de Serra, March 14, 1818, Fx. Doc. 53, 1st Sess. S2d Cong., p. 166.) That is the true American doctrine, which we should not have allowed ourselves to be inveigled from by anti- British demagogues and ambitious lawyers, anxious to get up a big case, without any knowledge of or care about the ultimate consequences and the true policy c»f the country. In our "case" we contend that it is a violation of inter- national law if a government negligently fails to prevent its citizens from sending out of any of its ports a vessel, loith intent or knoidedge that the same shall or will be em- ployed in ihe naval service of any foreign power then at war. In opposition to this may bo presented the bill passed unanimously by our Ilouse of Representatives, making it lawful to build and sell home-wade ships, adapted for war purposes, from which it is evident that we do not mean to be bound by that alleged ruh of international law, and in fact that ice deii'j that there is ani/ such law. The "case" is right in affirming that restrictions imposed by international law cannot be aborogatod by municipal laws. And our Ilouse of Representatives did not pro[)oso to abolish a rule of the law of nations, but did intend, fully and clearly, to put the right of building and selling ships of war on tiie same foot- ing as arms and ammunition. We have by the treaty a new set of rules, which we agree to be governed by in our relations with Great Brit- ain — not with any other nation. The treaty doesnot declare these riiles to be. part of the 10 law'of nations, but both parties agree to invite other mar- itime powers to accede to them. Our commissioners, in negotiating this treaty, obtained the adoption of these rules in order to improve our chances of winning the case before the arbitrators. To secure that comparatively unimportant result, they agreed to bind us to a certain course of conduct in future. The English thought they got a quid 'pro quo. THK PORTUGUESE CASE STATED— THE STRONGEST CASE ON REC- ORD — INTERESTING COKRESPONDENCE BETWEEN THE TWO GOVERNMENTS. The case of Portugal against the United States was much stronger than that of the United States against Eng- land, now pending before the Geneva tribunal of arbitra- tors. A short summary of it may be interesting and some- what instructive. On December 20, 1816, the Chevalier Joseph Cornea de Serra, the Portuguese minister at Washington, addressed a note to Mr. Monroe, Secretary of State, informing him that certain privateers were being fitted out in American ports to capture Portuguese ships; that the armaments were carried on in the port of Baltimore in a bare-faced way, and requests that the citizens of the United States shall be prevented by the laws of their country from be- coming, in masses, acting parties in wars which are not their own. {Ex. Doc.y 1st Sess. S'2d Cong., Doc. No. 53, Sd series, No. 1, p. 161.) To this Mr. Monroe replied, December 27, 1816, as fol- lows, {Ex. Doc, supra, p. 163:) " You are aware that the vessels are equipped without any authority from the Government, and on pretexts very different from those which you assign. You are also aware that the existing laws do not authorize the Presi- dent to interfere in such cases." He adds, that the President will recommend the passage of a law to preserve neutrality. (That law was enacted 3d w 11 March, 1817, and that h- ivas amended by an act passed in 1818, which is now in force.) On March 8, 1818, M. de Serra addressed a note to Mr. John Q. Adams, Secretary of State, {Ex. Doc. suj^ra, page 165,) referring to the capture of three Portuguese ships by privateers fitted out in the United States, manned by American crews, and commanded by American captains, and expresses a hope that the Government of the United States will be willing to give satisfaction and indemnilica- tion for the injury done. To this Mr. J. Q. Adams replied, March 14, 1818, {Ex. Doc. supra, page 166 :) "Sir: Your letter of the 8th instant, complainin^j of the capture of three Portuguese ships by privateers, said to be fitted out in the United States, manned by American crews and commanded by American captains, though un- der colors other than those of the United States, has been received. "The Government of the United States, having used all the moans in its power to prevent the fitting out and arm- ing of vessels in their ports to cruise against any nation with whom they are at peace, and having faithfully carried into execution the laws enacted to preserve inviolate the neutral and pacific obligations of this Union, cannot con- sider itself bound to indemnify individual foreigners for losses by captures, over which the United States have neither control nor jurisdiction. For such events no na- tion can in principle, nor does in practice, hold itself re- sponsible. A decisive reason for this, if there were no other, is the inability to provide a tribunal before which the facts can be proved. " The documents to which you refer must, of course, be ex parte statements, which in Portugal or in Brazil, i-'s well as in this country, could only serve as a foundation for actions in damages, or for the prosecution and trial of the persons supposed to have committed the depredations and outrages alleged in them. Should the parties come within the jurisdiction of the United States, there are courts of admiralty competent to ascertain the facts upon litigation between them, to punish the outrages which may be duly proved, and to restore the property to its rightful owners, should it also be brought within our jurisdiction, and found I! i ! I 1 ! (!|: , 12 upon judicial inquiry to have been taken in the manner represented by your letter. By the universal laws of na- tions the obligations of the American Government extend no further." Again, M. de Serra writes to Mr. Adams November 23, 1819, {Ex Doc. supra, page 174:) "During more than two years I have been obliged by my dut}' to oppose the systematic and organized depreda- tions daily committed on the property of Portuguese sub- jects by people living in the United States, and with ships fitted in ports of the Union, to the ruin of the commerce of Portugal. I do justice to, and am grateful for the pro- ceedings of the executive, in order to put a stop to these depredations, but the evil is rather increasing. I can pre- sent to you, if required, a list of fifty Portuguese ships, almost all richly laden, some of them East Indiamen, which have been taken by these people during the period of full peace. This is not the whole loss we have sustained, this list comprehending only those captures of which I have received oflicial complaints. The victims have been many more, besides violations of territory, by landing and plun- dering asliore with shocking circumstances. " One city alone on this coast has armed twenty-six ships which prey on our vitals ; and a week ago three armed ships of this nature were in that port waiting for a favor- able occasion of sailing for a cruise. * * * " They are more powerful than the African infidels, be- cause, the whole coast of Barbary does not possess such a strength of privateers. * * * " I shall not tire you with the numerous instances of these facts, but it may be easily conceived how I am heart- ily sick of receiving frequent communications of Portu- guese property stolen, of delinquents inconceivably ac- quitted, letters from Portuguese merchants deeply injured in their fortunes, and seeing me (as* often as has been the case) oppressed by prayers for bread from Portuguese sail- ors, thrown penniless on the shores after their ships had been captured." He adds, " I trust in the wisdom ar.d justice of this Gov- ernment; he will find the proper means of putting an end to this monstrous infidel conspiracy, so heterogeneous to the very nature of the United States." liii I I u IS On May 25, 1850, the Portuguese minister, the Chevalier de Figaniere, addressed a note to Mr. Clayton, the Secre- tary of State, {Sx. Doe. supra, page 179,) referring to the depredations above mentioned, and proposing a comrais- sion to examine into and estimate the losses and damages arising from these captures. He says that negotiations have been interrupted in consequence of the many political vicissitudes through which Portugal has unfortunately passed for many years. T<^ this Mr. Clayton replied. May 30, 1850, {Ex. Doc. supro., page 180,) referring to Mr. Adams's refusal to ap- point a joint commission to determine and assess the dam- ages claimed, anfl f^^'pres8ing surprise at the reappearance of these old claims. To this M. de Figaniere replied, June 6, 1850, {Ex. Doc. supra, p. 185,) that the claim-i were of more recent date than one which had lately been revived by the American Government against Portugal, (alluding to the case of the privateer Armstrong, which had been captured in 1814, in Fayal, by tlie British. The American Government claimed damages from the Portuguese government, on the ground that the latter was bound to protect the neutrality of its port.) On November 7, 1850, M. de Figaniere returned again to the charge, {Ex. Doc. supra, p. 153,) and laid before Mr. Webster, Secretary of State, a statement in support of the claims. He says, "upon the renewal of the old claims of the United States against Portugal," he desires to present these "vastly more important counter-claims." It is wor- thy of remark here that the President, in his annual mes- sage to Congress, December 24, 1849. referring to the old claims of the United States against Portugal, says, that "the revolutionary and distracted condition of Portugal in past times has been represented as one of the leading causes" of the delay in the adjustment of them. The letter of M. de Figaniere to Mr. Webster, of No- vember 7, 1860, containing a full and formal statement of the case against the United States, with a list of the vessels Ml 14 captured, is a document of great interodt and importance, as will be seen from the following extracts: "The undersigned, of her majesty's counsel and minister resident of Portugal in the United States of America, has been instructed by his government to lay before thu hon- orable Daniel Webster, Secretary of State of the said United States, the following statement in support of the claims of Portuguese subjects against the American Government, arising from captures of Portuguese vessels, with their cargoes, in the years 1816 down to so late as 1828, by priva- teers fitted out and equipped in ports of the United States, principally in that of Baltimore, and assuming to sail under the flag of South American insurgent States, especially that of Artigas. " Upwards of sixty Portuguese vessels, with their cfirgoes, were captured or jilundered, and such ships and cargoes were appropriated by the captors to their own use. "The fitting out of these privateers at Baltimore was a matter of public notoriety, and many of the leading citi- zens there, incluuxUg the sheritf and postmaster, were sum- moned before the courts as owners or interested in such privateers. "It is well known that the noted Banda-oriental chief Artigas held no seaport, had no ships, no sailors, and the privateers assuming his unrecognized flag were mostly manned and commanded by citizens of the United States, and in some instances the officers held commissions in the navy of the United States. "The undersigned begs leave to say, and he submits, that it was the duty of the United States Government to exercise a reasonable degree of diligence to prevent these proceedings of its citizens, and that, having failed to do so, a just claim exists on the part of the government of Portu- fal, in behalf of its despoiled sutyects, against the United tates, for the amount of the losses sustained by reason thereof. "Mr. de Figaniere would here recall to the honorable Mr. Webster's attention the state of the negotiations be- tween the two governments on this subject. So early as the year 1816 the Chevalier Correa da Serra, his most faithful majesty's plenipotentiary, apprized Mr. James Monroe, the then Secretary of State, ot these illegal arma- ments in Baltimore. In March, 1818, that minister claimed indemnification by the Government of the United States u J importance, I and minister America, has jfore the hoii- lesaid United the claims of Government, 8, with tlieir 828, by priva- Jnited States, f to sail nnder es, especially their cargoes, and cargoes 1 use. timore was a leading citi- ir, were sum- ested in such riental chief ors, and the tvere mostly lited States, sions in the [he submits, eminent to ■event these d to do so, lit of Portu- the United by reason honorable nations be- 50 early as his most Lr. James Jgal arraa- ler claimed Ited States 15 for the losses sustained by Portuguese subjects from the captures made by the said privateers, to which application the Secretary of State, in a note dated the 14th of said March, replied that, 'The executive having used all its power to prevent the arming of vessels in its ports against nations with whom it was at peace, and having put into execution the acts of Congress for keeping neutrality, it could not consider itself obliged to indemnify foreign indi- viduals for losses arising from captures upon which the United States had neither command nor jurisdiction.' "The undersigned willingly admits that, if the executive of the United States had used all its poicer to prevent the arming of vessels within its territory and their sailing from its ports against the commerce of Portugal, no claim could have been set up, by or in behalf of Portuguese subjects, against the Government of the United States, but that the only remedy would have been against the wrong-doers in the courts of law of the United States. But in point of fact the fitting out of these privateers was so notorious that, by due diligence on the part of the Government and the offi- cers of the United States, the evil might have been pre- vented. "The Chevalier Correa, in another communication ad- dressed to the Secretary of State, dated July 16, 1820, re- newed his application, and proposed that the United States should appoint commissioners, ' with full powers to confer and agree with her majesty's ministers in what reason and justice demand.' "In a further letter from that minister to Mr. J. Q. Adams, dated 26th August of the same year, the names of the officers of the navy of the United States are given, who, in October, 1818, embarked and served on board the armed schooner "General Artigas." The said schooner sailed under the so-called Artigan flag, and cruised for many months on the coast of Brazil, capturing several Portuguese vessels, among others the Sociedade Feliz, which was brought to Baltimore. "The names of said officers, as given by Mr. Correa, were Lieutenants Peleg and Dunham, of Khode Island, and midshipman Augustus Swartout, of New York, and Benjamin S. Grimke, of South Carolina. "Mr. Adams, in a letter addressed to the Portugese minister, dated the 30th of September, 1820, declines the appointment of commissioners as proposed, and intimates that the Portuguese subjects who may have suffered wrongs, i:i 1 16 have a remedy in the courts of justice, but that 'for any acta of the citizens of the United States, vommitlcd out of their jurisdldion and beyond their control^ the Government of the United States is not responsible.' Mr. Adams adds, that in the war in South America, to which Portugal had for several years been a party, 'the GoverDraent of the United States had neither countenanced nor permitted any violation of neutrality by their citizens.' "The undersigned, without intending to impute crimi- nal negligence to the Government of the United States in this matter, may be permitted to observe, that citizens of the United States were permitted, whilst within their ju- risdiction and under the control of the Government, to fit out armed vessels to go forth froni the ports of the United States, tilled with American citizens, to prey upon the com- merce of Portugal. "Iler moat faithful majesty's government and the un- dersigned will readily admit that the Government of the United States did not support or countenance these pro- ceedings, which were in direct violation of the laws of nature, of nations, and of these United States ; but it is conceived that the American Government was, to a certain extent, remiss in not using more efforts in suppressing these expeditions, and that a liability results from that re- missness. In April, 1822, Mr. Joze A. Grehan, charg6 d'affaires of Portugal, in a letter to the Secretary of State of that day, requires that commissioners should be ' chosen b}' both governments, for the purpose of arranging the in- demnities justly due to Portugese citizens, for the damages which they have sustained by reason of piracies, supported by the capital and the means of the United States.' "To this application the Secretary of State replied, on the 30th of April, 1822, that he could not accede to the appointment of commissioners for the purpose stated, aud says: 'It is a principle well knoVn, and understood, that no nation is responsible to another for the acts of its citi- zens, committed without its jurisdiction, and out of the reach of its control.' "Mr. Webster will not fail to perceive, that the com- plaint is really grounded upon the acts of American citi- zens, committed within the jurisdiction of the United States, and within the reach of the control of their govern- ment ; that is to say, the fitting out of armaments within the ports of the United States, to despoil Portugese com- merce. 17 "This subject has, sinco the above date, been repeatedly renewed verbally, if not in the correspondence of Messrs. T. 8. Conrtancio, J. Banozo, I'erura, and Torlades d'Azam- buja, down to 1835; and upon the renewal of the old claims of the United States against Portugal, both the undersigned and his government have repeatedly adverted to these long standing and vastly more important counter claims." In support of his view of the law of nations, he quotes Vattel and other authorities, and adds: "It appears to the undersigned, that the only qu'^stion to be examined is, whether the Government of the Ui.ited States could, by the exorcise of a rousonable degree of dili- gence, hiive prevented its citizens from going out of its ports in armed vessels to cruise against the commerce of Portugal, a friendly nation, with which the United States had ever been at peace, and had uninterrupted commercial relations." * * * " The public notoriety of these expeditions is easily shown. A reference to ' Niles' Register,' and other organs of public information published in those times, will suffice for this purpose r and nothing was more generally known at Baltimore, than that these expeditions were commonly fitted out at that port. Indeed, privateers were not only equipped in Baltimore, but they were accustomed to bring their captures there for sale. The Government of the United States might, by the exercise of due diligence, have become acquainted with the facts, and prevented the privateers from sallying forth. " The (ihief Artigas did not possess a single seaport, as has been stated, and the so-called privateers gave no secu- rity tliat they would conduct their cruises according to the laws and usages of war, and bring in their prizes for adju- dication. They were rather pirates than privateers, and it is respectfully submitted, the Government of the United Stattis should have exerted itself so as efficiently to prevent their repeated and long-continued depredations. There were a large number of these so-called privateers, at least twenty- eight or thirty, preying upon the commerce of Portugal. *'Tho authorities of the State of Maryland were evi- dently negligent in permitting these warlike preparations in the port of Baltimore, and as no claim can be made by Portugal against that State, all complaints founded upon the negligence of the State authorities must, of course, be made against the Government of the United States, and 2 I i 18 this govornmont is therefore, as the undoraigncd conceives, liable fur that neglect. "As already stated, in some instances the privateers brought their prizes into the ports of the United States, and the cargoes were sold, and upon such cargoes duties wore levied and paid as upon a regular importation. The undersigned conceives that justice demands these du- ties, with interest, should be returned to her majesty's government for the use of the parties interested in such cargoes." A list of the vessels is given, and the loss is estimated to exceed ^1,500,000 p^nncipal. Of course damages wore not claimed for the prolongation of the war, the loss of the Colonies, &c. WE REFUSE TO SUBMIT THE CLAIMS AGAINST US TO ARBiTRA- TION, BUT PERSIST IN TRESSINQ OUR OLD CLAIM AGAINST PORTUGAL IN THE PRIVATEER ARMSTRONG CASE — THE EMPEROR OF FRANCE THE ARBITRATOR — THE DECISION AGAINST US. M. de Figaniere, in his letter of June 6, 1850, offered, on behalf of his government, to leave to the arbitration of a third friendly and independent power all the claims on both sides. The offer of arbitration was accepted as to the claims of the United States against Portugal, but de- clined as to the claims of Portugal against the United States. Louis Napoleon, the president of Franco, was selected as the arbitrator, and ho decided against the United States. An enormous amount of law learning was thrown away upon the emperor, who, finding that the captain of the privateer had been the aggressor by firing into the boats of a British man-of-war in the harbor, and then had gone ashore with his crew and demanded protection, considered that the United States had no case.* The an- * When we are at poaco, we hold lax doctrines as to the duties and obliga- tions of neutrals; but when we are at war we find that neutrals have very limited rights, but almost unlimited obligations. This Armstrong case is an illustration of the elasticity of our principles. According to our doctrine in that case, a neutral is not merely bound to use "due diligence" to preserve its ueutrality, it is liable if its neutrality should be superseded by superior I 19 tiquity of this case was not coneidorod by the State Dopart- raont at Washington to be any barrier to the claim; but the moie recent cases, which the Portuguese government desired to have examined, were treated as too old and fishy. CURIOUS DOCTRINE PROPOUNDED BY MR. WEI^STER AS TO NON-LIADILITY, FOR MALFEASANCE, OF A STATE. Mr. Webster gave no written reply to M. do Figaniere, but communicated orally to him that he repudiated the idea that the United States Government was liable for the conduct of the authorities of the State of Maryland. (It will bo recollected that the imprisonment of British colored seamen at Charleston, under the State laws of South Carolina, involved the same question.) Mr. Webster further intimated that the American Gov- ernment would not tolerate the further discussion of the claims in question; and, consequently, Portugal, with the force of one of the bollignrontH. It is curious to obaervo how wo shift our cround. Tiioro is no obligation on our part to prevent a raid on Canada, but poor little Portugal was under an absolute obligation to drive the British Hoot out of tlio liarbor of Fayal, or pay us fur the damage iniiicted Ijy that fleet. Tiiat out Herod's llerod, and is only paralleled by the Alabama claims, to which it boars a retnarkablo family likeness. IIow such a monstrous doctrine came to be propounded is a puzzle to those who do not know iiow astute litigious people are at making "points." There is, moreover, another explanation of the mystery. Tlio commander of the British naval force in tne port of Fayal, after the privateer had, without any just reasi a or provocation, fired upon and killed some men in one of his boats, was foolish enough at iirst to try to board the nrivateer, instead of laying a ship alongside of hor, (he fearing the shots would injure the town.) Of course the boats were easily beaten otf with great slaughter. Our people treated it as a i)altlo between the privateer and the whole British squadron, in which the latter was defeated. They made a hero of the captain of the privateer, and his "claims " have been a popular theme ever since. They have not yet been finally disposed of, although he obtained a largo sum of money and a vote of thanks from Congress. The claim is now against our Govern- ment, because they did not recover the damages from Portugal, and it is alleged that Mr. Wel)ster neglected and mismanaged the case, lie appears to htive treated it as groundless. Our people, hearing but one side of the case, suuposed that the Portuguese authorities, as well as the British, were in fault, riiis case shows the wisdom of leaving such disputes to arbitration. Unon hearing/ both sides the utter groundlessness of the claim was clearly es- taolisiied. It will be observed that our Government was more moderate then than now. It confined the claim to the direct damages, instead of claiming that the war would have been shortened in duration if the career of this won- derful privateer had not been cut short through Portugal's non-enforcement of its duty as a neutral. li '• I !'■ 20 becomiiii^ liumiHty of a small power, dropped lior clnims, and meekly submitted to uu arbitration of tbo claims of her arrogant opponent. WANT OF MUTUALITY OF OUMQATION. A question may now be raised, wliether it is competent for the United Htates to be a co?n[)lainant in a case liko that of the Alabama; for, if the United States are not lia- ble for the delinquency of a State, there is no maluality, no obligation on our part to abi«lo by the law which we call on other nations to be governed by. WE ARE ESTOPPED CY OUR PRECEDENTS. And a further question is pertinent, whether we are not morally and equitably estopped by our own doctrines and precedents from maintaining that there has been any breach of international duty by Great Britain. THE TRUE DOCTRINE OF NELTRAL OBLIGATION THAT OF JOHN Q. ADAMS. Although we refused to recognize in any way the claims of Portugal, we have adopted the doctrine for which they contended, and seek to apply it to others, although we repudiated the application of it to ourselves. We now, for the purpose of tiie Alabama claims, recognize the prop- osition laid down in M. de Figanierc's dis^patch, derived from the auihoritics referred to by him, that a neutral is bound to the exercise of due diligence to prevent its citi- zens from going out of its ports in armed vessels to cruize against the commerce of a friendly power. And then we carry that proposition much further. The passage quoted by M. de Figaniere from Vattel, {h. 2, ch. 5, sec. 72-77,) d>es not support the position, that a neutral is under an absolute obligation to prevent its citi- zens from aiding or abetting either of the belligerents. It merely asserts that the neutral sovereign ought not to will- fully portuit his subjects to do injury to the subjects of T OF JOHN Q. 21 another State. Tlio duty of a neutral i^ to observe non- trality between the belligerents, n<»t to participate in the hoHtilo operations of either party. Ami there are even exceptions to this rule: for inatince, whore the neutral power is bound by treaties, previous to the war, to permit one of the belligerents to geek an asyluni in its ports, or giving right of way through the country with its troops. The position taken by Mr. Adams is not that the Balti- more privateers could not have been restrained by dilh/ence. Such a position would have been contrary to the obvious truth. If the state and federal authorities had employed a sufficient number of detectives and active officers, the acts complained of could have been prevented — acts which were very different indeed from the mere sale of a ship to a bel- ligerent. The fact is, that the prosperity of Baltimore wa« largely owing to those privateering operations. "What Mr. Adams contended was, that the acts complained of were not done or authorized by the government nor will- fully permitted by it, and that there was no complicity or connivance on its part and that as the courts were open for the prosecution of the offenders if they should come within the jurisdiction and for the restitution of the captured proper- ty if it should be brought into the United States, the Govern- ment could not consider itself bound to indemnify the parties injured ; and he asserts that " no nation can in 2>rin- ciple nor can in practice hold itself responsible" under such cir- cumstances. It is a noteworthy fact, that no nation ever has acknowledged a liability such as that claimed in the Portuguese and Alabama cases. THE PORTUGUESE CASE COMPARED WITH AND SHOWN TO BE MUCH STRONGER THAN THE ALABAMA CASE. In our case against England, it cannot be shown that any one of the Confederate cruisers was fitted out and equipped in England: they were officered by Americans, and they were got out of the English ports by stratagems and de- ceptions, and were fitted out and equipped afterwards. Wl I I'; 22 When reasonable evidence was oflfered by the American minister against suspected vessels, they were seized. In most cases the suspicion proved to be unfounded, and in some cases the English government purchased suspected vessels against which no direct proof could be obtained — pur- chased them to prevent the possibility of their being used by the Confederates. The English government favored the North throughout as much as possible, without giving to the Confederacy a casus belli. Contrast this with the Portuguese case. There the pri- vateers were armed, equipped, and manned in United States ports : the officers and crews were Americans, the owners were Americans, the business was carried on openly, no seizures were made to stop the expeditions. It is impos- sible to imagine a stronger case, and if in any case a nation could be held liable on principles of international law for the unauthorized acts of its citizens beyond its jurisdiction, we were liable in that case. But Mr. Adams says that " by the universal law of nations, the obligations of the American government extend no further" than the limits defined by him. If a claim could be made against a nation because some of its citizens have committed acts which could have been prevented by skillful and active detectives and officers, the peace of the world would be constantly disturbed, and the smaller states continually victimized. A great power would be apt to resent as an insult the charge that it had violated its international duty, but the small and weak powers would have to submit. REFUTATION OP THE STATEMENTS IN OUR "CASE" RESPECT- ING THE PORTUGUESE CLAIMS. Our "case" professes to give the substance of the cor- respondence between our Government and that of Portugal upon the claims above referred to. It does not give the true substance, but only a deceptive version of that cor- respondence, as will be clearly seen upon a comparison of the above abstract with that given in our " case," which is a bundle of equivocationB, concealments, and misrepre- sentations. It will be observed that the Portuguese minister applied for amendments of our laws, and he also asked our gov- ernment to stop the privateering, and failing in that, to indemnify the victims. But according to the correspond- ence, as abridged in our "case," the Portuguese vir- tually confined themselves to requests for amendments of the laws, which were complied with, and on the whole they were immensely delighted with our per- formances. And our "case" asserts that "the gov- ernment of Portugal, during the whole correspondence, offered no evidence to prove that captures had been madehy armed vessels illegally fitted out, equipped, or armed in the United States, nor even statements of facts tending to lead to the discovery of such evidence, which were not at once used for the purpose of detaining such vessels or of punishing the guilty parties." We did not detain such vessels at all, and as to the alleged punishment of the guilty parties, M. de Figaniere, in his note of November 7, 1850, says that in every instance "the claims of the Portuguese subjects presented in the United States against private individuals, citizens of the United States, who were concerned in such captures, were unavailing." And yet in our " case" we actually boast of the ^^ measure of justice" applied by the United States to Portugal ! What does our Secretary of State mean, when he asserts that Portugal offered "wo evidence f" Does he mean that scores of privateers could be publicly fitted out, manned, and commanded by Americans; sail from and return to our ports, and bring in and sell their prizes in our ports ; and that it was for the Portuguese minister to hunt up witnesses to prove these notorious acts, and that without such action on his part we cannot be accused of a want of "due dili- gence," although we did nothing to repress these public operations ? Can it be asserted that the argument of our .'li !' :i lil:;'! lij 1:1- !l" 24 Secretary of State on this part of the case is fair, candid, and truthful ? Our "case" says: "The claims lay buried until they were exhumed by Mr. Figaniere in 1850, as an offset to the General Armstrong case." It was, of course, right for us to "exhume" the Armstrong case, which dates back to 1814, giving ?,s a reason for so doing that the unfortunate condition of Portugal for many years had kept the case in abeyance, (this was alleged in the President's message to Congress;) but it was very unreasonable for the Portuguese to make any reference to their claims against us, arising in 1817, 1818!^ 1819, and 1820, and down to 1828. The intrepid audacity of this logic is unparalleled. It is very evident that the real reason why the Portu- guese claims slumbered so long, is to be found in the fact, that all liability was positively denied on the part of the United States, on the simple ground that the law of nations did not make them liable. That question was not exam- ined by the Portuguese government until we, by raking up the old Armstrong case of 1814, put them on the defensive. Upon an examination of the authorities on international law, it was found that the position taken by our Govern- ment in the Armstrong case was inconsistent with that taken by them against the Portuguese claims; and the question as to the duties of neutrals is brought under re- view, not only in our claim, but also in the Portuguese counter claims. To shut out the latter, whilst prosecuting the former, was unreasonable and unjust. N"o reason for declining the pr6posed arbitration of the Portuguese claims could be offered other than that given by Mr. J. Q. Adams, which ignores the doctrine upon which we are now pressing the Alabama claims. Our doctrine in the Armstrong case was, that Portugal was bound absolutely to protect the neutrality of the harbor of Fayal. This was denied by M. de Figaniere, who reviews *he authorities referred to in support of our claim, and shows that they have no application to the case in hand. He says: "Such an obligation cannot exist. And, indeed, \s is fair, candid, ed until they as an offset to urse, right for dates back to le unfortunate pt the case in 's message to le Portuguese t us, arising in 1828. The 1. by the Portu- id in the fact, le part of the aw of nations as not exam- by raking up he defensive, international our Govern- nt with that is; and the ht under re- Portuguese prosecuting ation of the lat given by upon which at Portugal he harbor of ho reviews claim, and e in hand, id, indeed, 25 it has always been contended by the United States that they are not bound to keep up a military and naval force large enough to prevent their own citirons from making inroads on foreign territory," referring, apparently, to the invasions of Canada, Texas, &c., by "sympathizers." The perusal of M. de Figaniere's note to Mr. Clayton will leave the reader in a state of amazement that any, even the most litigious lawyer-ridden people in the world, should have persisted in such a claim. The court of arbitration at Geneva will get from it a good inside view of the reckless way we have of getting up cases againt other countries. It shows our State De- partment to be litigious and overbearing in the highest degree. AN EARLY PRECEDENT AGAINST OUR PRESENT DOCTRINE. In our " case " reference is made to the treaty of "No- vember 19, 1794, between England and the United States, providing for componsation for the seizures of British ships made by French privateers fitted out in our ports, and to a case which arose under that treaty, viz, the case of the Jamaica, a vessel which had been captured by one of these privateers; but the prize not having been brought into our ports, it was decided that the case was not covered by the words of the treaty. The decision is quoted in our case, as follows : *' The counsel for the claimant seemed to suppose that the obligation to compensate arose from the circumstance of the privateer's having been originally armed in the United States; but as there is not the smallest evidence to induce a belief that in this or any other case the Gov- ernment permitted, or in any degree connived at, such arm- ing, or failed to use all the means in their powr to prevent such equipment, there is no grouncl to support a charge on the fact that the armament originated in their ports." It is not alleged that the equipment of the privateer could not have been prevented if the State and Federal authorities had employed a considerable number of detect- ives, and an adequate force to overcome all resistance. It ¥■:■ 26 is not alleged that the equipment was secret or furtive; on the contrary, it is well known to have been open and pub- lic, and in fact defiant. But as the means of repression in the hands of the Government were very small, it was truly stated that it had used all the means in its power, and, therefore, that there was no breach of good faith, which alone was regarded as culpable. The true question is not whether "due diligence" has been exercised in the sense contended for in our " case," but whether good faith has been observed. In our " case " we contend that it is for Great Britain to show that the acts of British citizens complained of ^^ could not have been prevented." It is clear that if the onus probandi was really with us in like manner in the case of the Jamaica and in the Portuguese cases, we ought to have compensated the sufferers. The doctrine contended for by our Secretary of State in the case of the privateer Armstrong, submitted to the arbitrament of the Emperor of the French, that a small, weak power is bound to prevent the capture of a vessel within its waters or pay for it, is shown by the argument of M. de Figaniere in his diplomatic note to our Govern- ment, under date of July 9, 1850, to be untenable. (Ex. Doc. H. E., No. 85, 1st Sess., 82d Cong., page 101.) If that doctrine were sound, then it would be correct to say that a nation cannot plead the weakness of its police force, which was in reality our plea in the case of the Jamaica just referred to, and in the Portuguese cases. Accordingto our " case," the "due diligence" which we say the law of nations requires," is the use of " the most energetic measures" to prevent the act forbidden? not the mere exercise of the means within the power of the Gov- ernment, if they are inadequate, but the means which might by stringent legislation and lavish expenditure have been made available. We have never held ourselves bound by such a rule, and it is certain that we will never submit to its application to our conduct, whether other nations choose to be bound by it or not. o 27 IMPOLICY OP THE NEW RULE AS TO "DUE DILIGENCE "—ITS INCOMPATIBILITY WITH OUR USAGES, PRINCIPLES, AND INSTI- TUTIONS. It is unadvisable and impolitic for us to declare the law of nations to be, that a nation shall be held responsible for the unauthorized acts of its citizens, if it can be shown thp.t the government of tbat nation could have prevented such acts. K we admit that to be the law of nations, or if we agree by treaty to be bound by such a rule, we shall undoubtedly have many serious reclamations against us. As observed in the report of the Committee on Foreign Affairs, before referred to : " The institutions and traditions of the American people compel sympathy for the humblest of the human family when struggling for liberty. Their literature is rank with the spirit of oppressed races, grappling with tyranny, and nations fighting for independence. Their faith in these ideas has been strengthened by the results of their own struggle. It is impossible for them not to wish well to the cause of patriots everywhere." England, protesting that the rules agreed upon, as gov- erning the arbitrators, are " not a statement of principles of international law, which were in force at the time when the claims" arose; nevertheless, "in order to evince its de- sire of strengthening the friendly relations between the two countries, and of making satisfactory provision for the future" agrees that the arbitrators shall assume, that England un- dertook to act upon the principles set forth in their rules. What are those rules? They are in substance, that it is the duty of a neutral government "to use due diligence" to prevent the departure of any vessel from its ports, intended to carry on war against a country at peace with such neutral government. What right had the President and Senate, in the exer- cise of the treaty-making power, to alter the law of nations, and impose upon the country an onerous obligation, pro- !• 'I iilr-ii m \^. I ii''!;! I,, - 28 vocative of innumerable and interminable foreign quar- rels? What is " due diligence? " In the case presented by our Secretary of State, we are made to maintain that the question does not depend upon the municipal laws of the accused country : it is not whether those laws have been fairly executed. It is, whether the acts complained of could have been prevented by diligence. In our argument in that case, wc ignore the restraints upon constitutional governments, which cannot exercise any arbitrary control over ship-builders and merchants. "We are to be responsible, according to that argument, for the State Hws, when they do not prohibit public meet- ings of sympathizers, and also for the consequences of the liberty of the press. By the law of nations, a belligerent has no cause of com- plaint against a nuetral, on account of the unauthorized acts of individual citizens; no nation is obliged, in deference to the belligerents, to keep a large and efficient force to prevent such acts. The peculiar character of our political system is especially ill-adapted to the new doctrine. OUR LATEST REPUDIATION OF THE RULE. At this very moment we have passing before our eyes an illustration of the danger of the anti-American doctrine. It appears that, having a large quantity of arms left on hand at the termination of our civil war, our govern- ment desired to sell the same, and did go on selling up to the commencement of the war between France and Ger- many, and then continued to make- sales just as they had done before. Mr. Sumner propounds the proposition in the Senate that it was the dcty of our Government to inquire whether the purchasers of the arms intended to sell them to either of the belligerents ; and he holds, that unless they pursued the inquiry with diligence, we are guilty of a violation of international law. »1 ley pursuPf 29 This is a natural sequence to the new doctrine advanced on our behalf in the Alabama case; a doctrine which we should abandon at once, if we do not Avant to be always in hot water. Mr. Sumner's doctrine as to the moral obligations of neu- trals is stringent; he would make it unlawful for our citi- zens to sell arras to a poor, oppressed people, having no standing army and no arsenals. He appears to consider that a people who are armed to the teeth have a vested right to their military superiority. The debate on the alleged sale of arras by our Govern- ment to France brings out in bold relief the unsoundness of the proposition in our " case," that the onus probandi lies upon England, to prove that she used due diligence to prevent the sailing of ships from her ports which were adapted for war purposes, and which were purchased for the use of the Confederates. Just as we are urging that argument, a question arises in the Senate whether the good name of the American Gov- ernment had been compromised by the sale of arms, most of which (not all) got into the hands of the French. The Goverimient laid down the rule, that it would sell no arms to the known agents of either belligerent. Prus- sia wanted to be a purchaser direct from the Government and so did France, and both were refused. The assailants of the administration maintained that, "if arms were sold to parties where there was an eminent probability that they would find their way 'ito the hands of the belligerents," then the rule laid down by the Gov- ernment was a mockery; and Mr. Schurz argued that either there was "a blindness, corapared with which the blindness of the mole is clairvoyance, or else it was a piece of transpa- rent juggler^'." On the other hand, the supporters of the administration relied upon what they considered to be the self-evident rule, that the Government was presumed to have kept faifh, and that it was to be taken for granted that our Govern- ment was blameless in these transactions, and the proof that QUEEN'S UNIVERSITY LIBRARY 1 1 II i' W^'\' ii'ii' I 80 it was not blameless was with those who had preferred the charges. Is it to bo maintained that such favorable presumptions are to be raised only in favor of our Government, and that foreign governments are to be treated in a different way, in the style of our " case," and deemed guilty, unless they can prove their innocence? OUR CLAIMS TOTALLY UNFOUNDED. Having disposed of the basis of the extravagant doctrine upon which our claims are founded, it is unnecessary to examine the superadded points of the "case," such as the following: 1. That municipal laws putting restraints upon indi- viduals, to prevent their interfering in foreign wars, or aid- ing either or both parties, must be fully enforced, or there is a casus belli. (That clearly is not so in relation to many laws, such as those restricting trading with the belliger- ents.) 2. The directions given to the colonial governors as to the treatment of the cruisers of both parties created obliga- tions on the part of England towards the United States, so that, if undue hospitality was accorded to a confederate cruiser, England must pay for the captures made by that cruiser afterwards. 3. That a complaint made by the British government against the confederate authorities, that they organized conspiracies to evade British laws, sustains a complaint of the United States against England, that she connived at such proceedings. 4. That English ports were made Sybase oi military opera- tions against the United States by the sale of confederate cotton and the application of the proceeds to the purchase of arras, and that those ports were the base of military expeditions against the United States, as some vessels adapted for war purposes got away from them, and were afterwards converted into war ships. The fallacy of these propositions is sufficiently appa- \i;PII (« 81 rent on their face. They simply serve to show a rollicky independence of common sense in the statement of the "case:" In the presentation of " the base of operations " theory, there is a convenient obliviousness of our own conduct very recently in relation to the supply of arms to Mexico and France. Of course, New York was not a base of that kind for France ; but Liverpool, under the like circum- stances, (with the single but conclusive point of difference, that the United States are the parties complaining,) was a base, a centre, a pivot of that great iniquity, the supply of arms to the Confederates, and therein there was a gross violation of the law of nations, as laid down by us for this particular occasion. In our "case" we treat it as a self-evident proposition, that it was wicked to do anything which " deprived the United States of the benefit of their superiority at sea;" and our "case" f.olemnly propounds that, if such conduct is sanctioned, it will lead to the horrible consequence, that "a weaker party hereafter may draw upon the resources of a strong neutral, in its effort to make its strength equal to that of its antagonist." It is assumed, as a matter of course, that a people weak in military power, but strong in pecuniary resources, in consequence of having pursued the profitable arts of peace instead of the art of war, should succumb at once to the dictation of a Bonaparte, and not shock the iuoral sense of American expounders of the law of nations, by striving to maintain freedom by the use of base lucre. ADDITIONAL OBJECTIONS, FROM THE AMERICAN POINT OP VIEW, TO THE NEW THEORY OF INCIDENTAL DAMAGES. The question now agitating the public mind is, whether we shall, after admitting that our old cherished doctrine, as laid down by John Q. Adams, is untenable, go the length of insisting that the law shall be declared by the board of arbitrators to be so stringent, that we shall in future cases have to pay all the indirect losses which may be sustained 'i:'i:i 82 by the people of n foreign country througli the acta of our filibuHters and sympathizers, when it can be shown that by diligence the State and federal authorities could have pre- vented their movements. For example, suppose funds are openly collected in New York to supply men with money and arms to assist rebels, or even a regularly-recognized belligerent power in Cuba or Mexico, or Canada: shall our Government he liable to pay, not only for all the damage these sympathizers may do, but also for all the indirect and consequential injury which may be sustained by reason of their act^ — for ex- ample, the prolongation of the war, the loss of commerce, &c. Of course, being a powerful nation, we could with im- punity ignore any such claims against us, and no doubt would do so. If, for instance, there should be an invasiovx of Canada by a few thousand Irishmen, after many public meetings, pi-oclamations of "head centers," and public col- lection of funds, &c., all of which might have been easily prevented, will our Government pay, not only for the barns and houses destroyed, and the horses and cattle, &c., cap- tured, but also the expenses occasioned by the military preparations to repel this invasion, and the Ic'^os sustained by tradesmen, mechanics, and farmers, by the interruption of their business? We repeat the question, what is to become of the smaller powers, if such a doctrine is to be recognized? As to the great powers, they will never submit to any application of it to themselves, but the smaller ones could all be devoured by it. THE ARBITRATION. England has agreed to submit to arbitration the question, whether she was guilty of negligence in respect to the es- cape of the Alabama from an English port; and also whether she is liable for the acts of certain other confeder- ate cruisers. As to the Alabama, it will be recollected that she was not fitted out and armed as a ship-of-war whoii hHc slipped out; Imt tlmt hIio received ber arnmmont nftorwnrds, at u place beyond Knglirfh Jurisdiction. Tlie claim is 8et up against lOngland on the ground that, if due diligonco had been used, it would have boon found out that it was intended to have her used as a confederate cruiser. England is willing to have the case adjudged iipon tlie principle that she shall be held responsible, if such alleged no: ligence can be shown. England docs not admit, how- ever, that such liability was imposed by the law of nations existing at the time; she understands the law of nations to be as ex[)Ounded by Mr. J. Q. Adams in the Portuguese ciiso; but she appears to have been willing to have such a doctrine establislied at our instance, as a precedent for our future guidance. According to the New York Herald, February 6, 1872 — "It was thought by many that England had cunningly inveigled this country into the new rules regarding the duty of neutrals," and "the treaty was a cunning piece of strategy on the part of England to save herself in the fu- ture." Perhaps she supposed she could aftbvd to pay sometliing for our adoption of the new doctrine. Her diplomatists may have imagined that it would tend to prevent any more filibustering expeditions, or any active sympathy against her in any of her wars with other nations. THE ADVANTAGE OF THE NEAV RULE TO ENGLAND IN FUTURE CASES PROBLEMATICAL. It may be questioned, however, whether it would not have been better for both parties if they had let the old law re- main undisturbed, relying upon such municipal laws as each nation might from time to time deem it right to enact and enforce for the preservation of neutrality. Such mat- ters should be left to the good will of the nations, and should not be hampered by entangling contracts. So soon as an absolute obligation is created, wc have a fruitful source of quarrels. The same remark applies to extradition treaties. They 8 Il 84 onght to bo uboHsbod, and oacb nation lotl to legislate or it pleases in respect to the extradition of alleged ott'endera. Tliirt legiHlatinii might be eoiidtictod on the pri?iciplo of reciprocity. When tbero is a treaty obligation to surrender fngitivos, there arc frequent causes of dis[)Ute. For in- stance, if Kossuth had been demanded by Austria, or John Mitchell by England, or members of the Paris commune by franco, would they have been given up? WHY KNOLAND HAS GOOD RIGHT TO NOTIFY US THAT SHE WILL NOT GO INTO THli: DISCUSSION OF THE QUESTION OF INCI- DENTAL DAMAGES — THE EFFECT OF THAT NOTIFICATION — FAMILIAR ILLUSTRATIONS. If England notifies us that she does not consider the ar- bitrators tc have power to award indirect damages, wo flhall, if we proceed with the arbitration, do so with full knowledge that any award of indirect damages will be a nullity, as it will be disregarded by the English gfivern- meiit. The submission to arbitration is a purely voluntary ngretnient; and if there is an irreconcilable misunderstand- ing about its scope and mearing on any point of real im- portance, it should be abandoned. But our abandonment of the Jijrbit ration, on the ground tliat England will not submit •to au award of the indirect damages claimed by the Amer- lioan lawyers in the case, would be frivolous, as the point is not an important one, the claim being manifestly untenable. If the submission of counter claims against the United States should be in general terms, and the arbitrators should award the payment of the Confederate bonds held by for- eigners, we should unquestionably treat the award as void, whether we notified or not our intention so to do during the progress of the case. But it would be courteous to intimate on the preseiitiition of the claim that it would not be sub- mitted to in any event. The case may be compared to an agreement to submit a question of indebtedness to an arbitrator. The alleged debtor may, for tbe sake of peace, be willing to leave the question of indebtedness to the decision of a mutual friend ; hut whnt is the allo^od debtor to do, if lie finds that his oppoMC'iit claims bft«>ro the mbitrator, not merely the debt and interest, but indirect damages for the non-payment, such as the profits ho might have made in a certain specu- lation with the money, it* it had been paid when due; the losses he has sustaiticd by being declared a bankrupt, which ho could have averted, if he had received the money in question? The alleged debtor may have been willing to have the comparatively unimportant question of the indebtedness left to the decision of the party selected, but may not be willing to place his whole fortune at the disposal of the ar- bitrator. If he be an honorable man, he will at once notify the other party that he will regard any action of the arbi- trator on such claim for indirect damages as an excess of his power and jurisdiction, and will decline to go into the evidence on that subject. He will give this notifica- tion, in order that there may bo no misunderstanding lead- ing to a fruitless inquiry. Ho will not remain silent until the decision of the arbitrator is given, and then, if it be given against him, declare it void. If the award be sub- ject to judicial scrutiny, of course the arbitrators can be kept within the scope of the inquiry actually submitted to them, and the protest in such a case will be a mere act of courtesy, or to save time. That the American commissioners did not expect or in- tend to raise before the arbitration the question now raised by the "case," in respect to remote consequential damages, sufiiciently appears from the fact that, by the terms of the treaty, the assessors are to inquire what amount of dam-> ages, if any, ought to be paid for each vessel ; which excludes the idea that any amount could be awarded to be paid for the prolongation of the war, seeing that such prolongation could not be attributed to the operations of any single vessel. It is not reasonable to suppose that England intended to submit the question to the decision of arbitrators, whether she was bound to pay some thousands of millions of dollars r !:!1: 36 for ail nllej?ed neglect of police dut}'. She might not ap- proliend an adverse decision, but she might well object to an admission, that the new-fangled doctrine of the liability of nations for the unauthorized acts of its citizens could be expanded to such an absurd extent. THE STATE DEPARTMENT ARRAIGNED FOR ITS GROgS INCON- SISTENCY ON QUESTIONS OF INTERNATIONAL LAW — N0TA15LE ILLUSTRATIONS GIVEN. The case has now fallen into the hands of lawj^ers who are struggling, not for truth, but for victory. We have had too much law logic and special pleading in our diplomacy, and it has too often been the practice for our Secretaries of State to indulge in long legal disserta- tions, in which we will find a total disregard of consist- ency, of established principles, and of American policy. Thus, in the dispute with England about the alleged viola- tion of our neutrality laws by the British minister and consuls, Mr. Gushing wrote, in the shape of diplomatic notes, a large law book, in. which the leading proposition is, that it is a violation of the law of nations for an English official to advcvtise in the United States an invitation to British citizens to return to their native country. That was called "seducing" the inhabitants of the United States: Mr. Gush- ing claiming, virtually, that we held a monopoly of the right of seduction. Foreigners could throw off their alle- giance to their native country, and could rightfully be in- vited or seduced to do so; but it was wrongful to seduce any body in the United States to go into a foreign military service: not because the act of Gougress forbade it, but because "the law of nations" denonficed it — a proposition palpably untenable. That doctrine served to snub the English and delight the Russians. Of course it was completely ignored by us when we wanted men for our armies, and we got a good many from the British provinces, without any regard to the seduction theory. Then, in relation to the declaration of the European 87 powers against privateering, we had from our State De- partment a long legal essay, in which it was affirmed to be the modern law and usage of civilized nations, that private property should not be interfered with in war by land, and it was inferred that private property should enjoy immu- nity at sea, and the adoption of that rule was suggested by way of amendment to the rule against privateering. (Let- ter of Mr. Marcy, Secretary of State, to M. de Sartiges, the French minister at Washington, dated July 28, 1856, on the declaration of the maritime powers of Europe con- cerning maritime law, privateering, &c.) Soon after we showed our adherence to this doctrine by destroying the dwelling-houses and crops of the inhabitants of the seceded States, after fully acknowledging them to be belligerents. And it will be found, ou referring to Kent's Commenta- ries, Vol. 1, Lecture 5, (7th edn.,) that when we were at war with Mexico, Mr. Marcy, then being Secretary of War, revoking previous instructions, directed General Taylor to levy contributions on the Mexicans, "without paying or engaging to pay therefor;" whereupon the annotator ob- serves, that " the principle of kindness and liberality towards the enemy seems to be oi a. flexible character." As flexible, it would appear, as the principles of our statesmen when dealing with the law of nations. SU(5GESTED SUPERVISION BY COXGllESS — THE CASE LAID BEFORE THE ARBITRATORS HIGHLY OBJECTIONABLE, AND CALCULATED TO CREATE ILL-WILL. There is only one thing we have been always consistent in, and that is our steady adherence to an illustrious pre- cedent. With us the single question has always been, whose ox has been gored, and we have applied the law accord- ingly. The vagaries of our State Department in matters of international 1 iw require repression, and it is high time for Congress to take the matter in hand. A good deal of dangerous popularity hunting has been in- dulged in by those who have had the management of our foreign relations. The public have been excited by the i m ii-;:;'!i!i .., : li|il!':■ t'li',': 98 recital of imaginary grievances, and wrought up to a pitch of rage and indignation pretty much as the client who, on hearing his wrongs eloquently depicted by his lawyer, became much affected and exasperated, he not having previously been aware of the depth of his grievances. Most especially has this been the case in relation to com- plaints against England, it being known that the public mind was highly excitable on the subject of any supposed wrong-doing of that power. The arbitration was agreed to by England, *' in order to evince its desire to strengthen the friendly relations be- tween the two countries;" and now we have a wild, irri- tating case or brief made up in the State Department, and this libel has been translated into several languages and circulated amongst foreigners. How that is to promote good will between the two countries is not perceived. Suppose Spain to be complaining of invasions of Cuba by large bodies of American citizens, organized in the United States, or England to be complaining of a Fenian raid into Canada or hostile demonstration on the frontier, how would we treat the complaint, if it were couched in language charging our Government not merely with re- missness, but with complicity or connivance and tricky dodges and evasions? And suppose that, in support of this insulting charge, the speeches of a few congressmen and articles in newspapers should be cited as sustaining it, would not our press and our people ridicule the reasoning and resent the insult? And yet that is the st3'le in which our "case" is got up. It is a stjle which we would not tolerate if applied by others to ourselves; and it is especial- ly improper where, for the sake of peace, the complaint is left to arbitration. The argument of the case in respect to incidental dama- ges will be regarded all over the world as preposterous. It is said that Mr. Evarts atid Mr. Cushing are not re- sponsible for "the case;" that they disapprove of it; and that it is entirely the work of Mr. Davis^, the Assistant Secretary of State. Whether that be so or not, it should ■■<**' lilMiil.. 8d not be allowed to remain as the authoritative exposition of oar case. Congress should not allow the Department of the Secretary of State to run riot on our foreign relations. In fact, a vigorous supervision should be exercised particular- ly by the Senate over the department. THE TRUE CONSTHUCTION OF THE NEW RULE WHICH WE SHOULD CONTEND FOR. The rule that a nation shall be held to due diligence does not import that a nation is bound at all events to keep its citizens from injuring those of another country. The unlawful actc of a few individuals can hardly be prevented by the ordinary means of preserving the public peace. The fact that individuals have violated the law does not raise the presumption of a want of due diligence on the part of the Government. This reasonable construction of the rule which England has agreed to be bound by may prevent us from maintain- ing our case or even presenting a plausible argument upon it. The fact is, we got up a false clamor in a time of pub- lic excitement, and we ought not now to endeavor to bol- ster it up by unfair arguments, such as the proposition in our "case," "that the burden of proof will be upon Great Britain to show that" the acts complained of "could not have been prevented." One illustration of the construction of the new rule con- tended for in the case submitted by us to tht arbitrators will suffice. The Florida was one of the Confederate cruisers obtained in England. While she was in England no evi- dence affecting her of unlawful intention was obtained, but the case argues thus: "That her departure from the juris- diction of Great Britain might have hem j^revented, after the information furnished by Mr. Adams, would seem to be beyond doubt. And that a neglect to prevent such departure was a failure to use the *due diligence,' called for by the sec- ond clause of the first rule of the treaty, obviously follows the last conclusion." Let us apply this reasoning to the case of the Hornet. P:\yX if ■ '::i iiii' "I'll, ;•' ill'''!;!? m'y i m ''*!•• ! 40 The Spanish consul at New York informed the district attorney there that the Hornet was on the eve of departure from New York, upon an illegal expedition, in violation of the proclamation of the President of October 12, 1870. The district attortiey replies, December 8, 1870, to the Spanish consul, that there was no proof authorizing him to seize the Hornet; says he understands she is going to Nassau; and adds, "what her intentions may be on reach- ing that port are things that remain nnproven." Now, is the idea to be tolerated, that we should be liable for the acts of the Hornet, because, after the information furnished by the Spanish consul, the departure of the ves- sel might have been prevented. It is too absurd for serious discussion. WHY THE CLAIMS SHOULD HAVE BEEN ABANDONED UPON THE RECONSTRUCTION OF THE UNION. There is considerable force in Lord Redesdale's argu- ment, that we are equitably estopped from setting up the claims in question, because the wrong complained of was perpetrated by those with whom we are now in full part- nership, viz, the southern States. From whatever point of view we examine the matter, the peculiarity of the combination or union of the States — sovereign States in many respects; but forming one na- tion — becomes important. Its bearing upon the recognition of the Confederate States as a belligerent power cannot be overlooked, nor can the fact that the States once separated de facto are now readmitted into the Union, and form nearly one half of the body called the United States, the com- plainants in the case before the Geneva board of arbitra- tion ; and if an amount of monej' be awarded to be paid by England to the United States, the very States whose cruisers made the captures complained of will be the joint recipients of the compensation paid for those captures, and will have the joint control and disposition of the same. An in demn ideation for the cnptures made by the Con- federate cruisers could have been obtained from the con- I "^^ ■■' il^v... 41 !IED UPON THE tnmg one na- quered party, just aa Germany has recently exacted an indemnification from France. h The United States have extinguished this right by re- storing the old Union of the States. That act renders the further prosecution of the claims inequitable, unseemly, and indecorous. That event makes a great deal of difference in the ques- tion, seeing that, when the. ex-Confederate States were held as conquered provinces, it could not be said that they were participants in the receipt of the money. In addition to the curious fact that some of the com- plainants are the perpetrators of the injuries complained of, we have another extraordinary feature, the consequence of the modern practice of marine insurance, viz, there are scarcely any parties really aggrieved. This fact conduces, with many others, to show the purely litigious character of the claims in question. Even if the United States Government should obtain an award of damages, it would not know what to do with them, as most of the parties whose property was captured were covered by insurance, and the insurance companies were indemni- fied by higher rates of insurance — war rates. In some cases the underwriters were British companies. Are the British »to be called upon to pay a second time in those cases ? WHO ARE THE PARTIES INJURED. The alleged moral or equitable obligation of a neutral, to indemnify the sufferers from its neglect, is the only foundation upon which the direct claims can possibly be raised; they cannot be sustained on the ground that the neutral should be punished for its negligence. Our Government presents these claims on the assump- tion that the damages that may be recovered on account of the captures specified shall be distributed amongst the sufferers by those captures. Let it be shown that there are scarcely any parties entitled to receive anything on that account, and it follows that the complainants have no 48 standing in court on most of the direct claims. The case then stands, in the main, upon the claims for fanciful, im- aginary, consequential, or indirect damages, sustained hy ike United States now composing the Union, and the acts out of which those claims arise are the acta of some of those States in carrying on a war with the others! If any other country should get up such a case against the United States, it would be treated here with universal ridicule and contempt. It would not be submitted to arbitration ; it would not be listened to. ii-i^;! HOW FAR THE DEFENCES ARE LIMITED BY THE TREATY. t It may possibly be contended that, by the terms of the treaty, the case is narrowed down to the single question, whether "due diligence" was used. That argument attaches too much importance to the provision in the treaty, that the arbitrators should assume that the English government had undertaken to act upon the principles set forth in the rules specified. Suppose it appears that her conduct will not bear that test, but it also appears that the complainants have, never- theless, no just cause of complaint, should the award be in favor of the complainants? The arbitrators should not award damages to the United States in a case where it is clear that they would refuse to pay damages if they were the defendants. They should not award damages to be paid to the wrong-doers. There is nothing in the provisions of the treaty to compel the arbitrators to work such an injustice. On the contrary, the treaty expressly provides, that the arbitrators shall be governed by the rules specified, *' and by such principles of international law, not inconsistent there- with, as the arbitrators shall determine to have been appli- cable to the case." ■ The rule that a neutral shall bo bound to use due dili- gence does not conflict, for example, with the proposition that the party doing the injury complained of ought not to l:i ' ■-15 w E TREATY. 48 claim damages from another party, on the ground that he might have prevented the perpetration of that injury. The arbitrators will be governed by international law and general principles of right. Moreover, in ascertaining what effect is to be given to England's obligation to use ^^due diligence," it is proper to see what degree of diligence the complainants recognize as "due diligence." For the pui-pose of this controversy there can be no more due to them than from them. Hence the pertinency of the inquiry which has been pursued in this article: What do the United States consider to be "due diligence," in cases where their citizens commit wrongful acts, to the detriment of the people of other countries. It is very evident that they do not hold them- selves bound to insure against those acts — do not recognize their liability for them, although it can be shown that they might have been prevented by careful precautions and diligent supervision. THE ARBITRATION BENEFICIAL TO US, AND A GOOD PRECEDENT, EVEN IF THE DECISION BE AGAINST US. It may possibly be suggested that this discussion shows that the arbitration should be abandoned. Not so, unless, indeed, the claims are abandoned as untenable. The public did not understand the real merits of the controversy, having heard but one side of it, but was will- ing to leave the case to arbitration. Suppose the decision be against us : would it not really be better for our interests in the future than a decision in our favor? And should we not learn by this experience that there is a great ad- vantage in hearing both sides in disputes between nations as well as in contrfversies between private individuals? That was shown in the case before referred to, which was left to the decision of Louis Napoleon. Let us have another illustration of it. If the result of the proceedings shall tend to check the universal one-sided rantipoling of the American press, on all questions in dispute between ti: •I ■■:;;, 44 this country nnd others, it will be a most wholesome and beneficent operation. The public will hear in an authorized form the British side of the case, established by due proofs carefully exam- ined, and will also hear the reasons of the arbitrators for their decisions. The second sober thought of our people, unclouded by passion, and our true love of justice, will in- sure a cheerful acquiescence in the award. WHY ENGLAND DID NOT BREAK THE BLOCKADE- POLICY. -SENTIMENT VS. It should be borne in mind that if England had broken the blockade, France would have joined her, and it would have been impossible for the North to have continued the war. England had but to stretch forth her hand, and the North and South would have been forever separated, and England, by that act, would have secured her dominions in America — dominions which, amalgamated with the mother country, would have made her strong forever. The temptation was very great, but it was resisted and overcome. Under the influence of a great and noble sen- timent, she sacrificed her cotton manufactures and much of her commerce, and cast aside her jealousy of the great, and to her dangerous, growing power of the United States. Whether she acted in this with the prudence which usually governs nations in their foreign policy remains to be proved. Certain it is, no nation ever before made such a sacrifice for a sentiment. The court and the liberal party sympa- thized with the North, regarding the secession of the South as a slave-owners' rebellion. Even Manchester, the great suft'erer from the blockade, which prevented the supply of cotton, advocated the cause of the North. HINTS TO THE ANTI-BRITISH WAR JOURNALS. And now, we are told, we ought to make war upon Eng- land, upon the pretext that she aided the confederacy. Before embarking in that war, it may be well to con- H holesorae and SENTIMENT VS. 46 Hider what may bo tlie action of the ex-Confederate States and the Pacific States in certain contingencies. ;i Even the noisiest of the war jonrn' ' , after proving to its own satisfaction what a simple matter a war with Eng- land would be, and how easy it would bo to despoil her of her American possessions, all at once made the folio, ing discover}': "If England dare not go to war with us from the dan- ger she wotdd expose herself to from Ireland, still less dare we go to war with England, knowing how easily she could fan the discontent of the South ijito anew rebelion, which, with the aid of England, might defy all our power to sub- due." (.V. Y. Herald, Fchrmrij 10, 1872.) As to the position of England, the supposed danger from Ireland appears to be purely imaginary; for other r^jasons, she is evidently most anxious to avoid war with the United States, and is ready to make any reasonable concessions for the sake of peace. Let us show a similar spirit. THE SCOPE OF THE ARBITRATTON — HOW TO BE DETERMINED — THE CLAIMS FOR INDIRECT INJURY EXCLUDED BY THE PROTOCOL.S AND BY THE TERMS OF THE TREATY. The refusal of our Government to withdraw the claims for indirect damages would not necessarily lead to the abandonment of the arbitration by Great Britain. Let the arbitrators be asked by both parties to declare, in the first instance, what they consider to be the extent of their authority. It should not be assumed by the British government that thearbitrators will wrongfully usurp jurisdiction over a mat- ter not submitted to them. It will be time enough for the British to retire from the case if they find that the true limits of the arbitration, as they understand the contract, are to be overstepped. They have given timely notice that they will not go into a hearing of the case in that event. This course of proceeding is of common occurrence in ar- bitrations of disputes between private individuals. If the arbitrators shall consider that the terms of the 46 11 1 ■'!'!.;,( 11 l!ii'i?!!:i!j ii'lllii! treaty leave open for (liscnssion the question of liability for what is called in the statement of the Aniorican Commis- sioners to the High Joint Commission, en 8 Marcii last, ** iNDiiiECT injiiry inthe transfer of a large part of the Ameri- can commercial marine to the British dag, in the enhanc- ed payments of insurance, in the proloigation of the war, and in the addition of a largo sum to the cost of the war and the suppression of the rebellion," then (Jieat Britain may with propriety say, that there has been a misunderstand- ing: that the treaty would not have been made had each party understood the meaning put by the other party on the language used, and therefore that the mutual consent required for a contract is wanting. It follows that the arbitration in that case is abandoned. If, on the other hand, the arbitrators shall consider that the claims in question are not within the submission, then, if (hat decision be satisfactory to the United States, the arbitra- tion may proceed. But if the United States shall be dis- satisfied with that construction of the contract to submit the matters in dispute to arbitration, then the arbitration must be abando: ^d. This mode of dealing with the preliminary question is perfectly compatible with the dignity of both countries. The question as to the real scope of the arbitration de- pends partly upon what was said upon the negotiation for the reference, but mainly upon the terms of the treatj'. At the conference held on the 8th of March, the Ameri- can commissioners stated that the cruisers ''which had been fitted out or armed or equipped, or which had received augmentation of force in Great Britatn or in her colonies," had caused "DIRECT bosses in the capture and destruction of a large number of vessels, with their cargoes, and in the heavy national expenditure in the pursuit of the cruisers, and INDIRECT injury in the transfer of a large part of the American commercial marine to the British flag," (&c., as above quoted ;) that the claims for the loss and destruction of private property amounted to about fourteen millions; 47 '* that the cost which the Government had been put to in the pursuit of the emitters couKl easily he ascertained by cer- tificates of Government accounting officers; that in the hope of AN amicnble settlcmenf. no estimate was made of the INDIRECT losses, without prejudice, however, to the right to Indemnification on tlieir account in the event of no such settle- ment being made." The American commissioners at the same time " pro- posed that tiie Joint High Commission should agree upon a sum which should be paid by Great Britain to the Uni- ted States in satisfaction of all the claims and the interest thereon." The British commissioners replied, denying all liability, but proposing to leave the question to arbitration. The American commissioners then stated that they "could not consent to submit the question of the liability of Her Majesty's Government to arbitration unless the principles which should govern the arbitrator, in the consideration of the facts, could b*^ first agreed upon." (See Protocol 3 May, reciting what had been done.) That matter being aftervv^.rds arranged, the arbitration was agreed upon. It is conceded b}' the British government that the claims for the expenses of the pursuit of the cruisers are within the submission, because they were expressly mentiontd in the negotiation for the reference, and classed amongst the ^Uiircct losses." (Whether such classification is correct or not is immaterial.) But it ia contended that the claims for the "indirect in- jury" are impliedly abandoned by the intimation that no estimate of it had been made, the estimate being confined to the direct losses, in the hope that there would be an ami- cable settlement of the matter. That is to say, upon an amica- ble settlement the claim was to be about fourteen millions, with someting added for the cost of chasing the cruisers; if no amicable settlement was arrived at, the claims for thousands of millions were to be held up in terrorem. Here it at once appears to be highly improbable that the claims 48 .III' thus to i)o alinndonod woi'o to bo retained, if a friendly mode of settling [ho. iVilYwnUy hIiouM bo iigroed upon. It irt ju'gui'd on tbo IJriii.sh side that, altb(Miu;li a pnrtiou- hvr proposal, tbat, if accoptod, would luivo been an aniical)Ie settlement, was rejected, yet tliat such proposal was fol- lowed by a counter projtosal of an arbitration, wliich was agreed to, and tluit this arbitration constituted an "anilca- blo settlemejit," in another form, it is true, than that first proposed, but fully within tlio moaning of that expression, as used by tlio American commissioners. In support of that argument, they refer to the preamble of the treaty, which reads thaiT: "The United States of America and Ilor Britannic Majesty, being desirous to provide for an amicable settlement of all causes in dill'orenco between tlie two countries," Ac. This, it is eaid, shows that what was agreed to was con- sidered at the time to be an "amical)le settlement" of the ilisput'j. In reply to this, it is said that the arbitration is not in itself an amicable settlement. Suppose that point to 1)0 well taken, lot us carry the inquiry a stage further. Suppose an award to be nnide by the arbitrators, and that award to be submitted to, performed, and abided i)y: will there not then be an amienlde settlement? Of course that will be so. And, as it was held forth that an amical)le set- tlement would shut off the claims for the indirect injury, of wliich no estimate wliatevor was made, they cannot with propriety bo presented now. Probably no one supposes that the English commis- sionirs considered that tliese vague, unostimated claims were a fit subject for arbitration. It could not possibly have l)cen intended to give such a wide range to the arbi- trators. Having thus considered what transpired on the negotiation for the reference, let us next see whether the terms of the treaty are compatible with the presentation of the claims for the "indirect injury." By the treaty, after reciting the differences between the two governments, "growing out of the acts committed by > I 49 the flovoral vchhoIs," it is ncrrocrl tliat the Raid claims shall bo rcforrod to arbitration, and article 7 provides, that "the Huid tribunal shall first dcterniino as lo mcfi iwssfl. .scpnratdi/,'^ wljcther (iroat Britain has failed to fulfill her duty. In case tho tribunal find that (Jroat Hritain basso failed, it may award a sum in gross for all the claims. Article 10 pro- vides that in case of the omission of the tribunal to follow up its decision by such award, tlien a board of assessors "shall be appointed, to asctertain and determine what claims are valid and what amount or amounts shall be paid by Great Britain to tho United States on account of tho liabiWy arlsbifi from t'xch fdihire^ ah to each vessel, ac- cording to tho extent of such liability, as decided by the arbitrators." The moaning of articles 7 and 10, taken together, is that, if tlie arbitrators find thoalleged default to have been commit- ted, thoy may award a sum in gross, on account of the liabil- ity, for all the vessels; and, if they fail to do so, the assessors are to ascertain tho liabilitv as to each vessel. P^videntlv it was considered that tho assessors should not be intrusted with tho largo discretionary power vested in the arbitrators to lump all the damages together. But the damages to be as- certained are the same in both cases — the arbitrators may lump them: the assessors must separate thom — that is all the dif- ference. And now the question arises whether, in ascertaining the amount to be paid on account of tho failure as to any partic- ular vessel, the indirect injury by "the transfer of a large part of the American commercial marine to the British flag," &c., &c., could be apportioned and computed by the asssessors, and put down to the account of that vessel. Clearly not; and therefore, b}^ the terms of the treaty itself, the claims in question are inadmissible. It may he said that the British commissioners should have had the treaty made plainer and clearer than it is. On the whole it appears, however, to be as satisfactory a bargain as could reasonably be expected. 4 50 iil:«' 'iiii ; I" iiliii 111). It was deemed necessary to pacify the monster which had been generated by popular ignorance and fury, and it was probably considered by the British commissioners that even a bargain rather one-sided was better than nothing; and so it was, and much credit is due to them for accomplishing as much as they did. It was considered by many intelligent people that, if England could, by the payment of four or five millions of pounds sterling, allay the excitement on this subject in America, and at the same time get a treaty restraining its citizens from filibustering, it might not be a bad bargain. Such treaties are, however, as we have already shown, of doubtful utility. Taking a careful survey of the whole matter, there is nothing to show that it was bad policy on the part of the English diplomatists to submit the question of liability with the retroactive new rules of law to govern the arbitrators, and even to choose arbitrators who might adopt the conti- nental ideas of international law, in preference to the doc- trines which England and the United States have adhered to, affirming the right of neutrals to supply arms, &c., to belligerents. There was an imperative necessity for getting rid of the contention. The popular clamor might, perhaps, have been allayed in another way, if it had been thought of and if the United States Government had been desirous of getting rid of the dispute. Thus, if it had been pointed out that the restoration of the seceded States — the ex-belligerent — to the Union had entirely changed the status of the con- ti'oversy and obliterated the claims, the public would have accepted that solution of the difficulty. THE DOCTRINES OF THE "CASE" SHOULD BE REPUDIATED BY OONaRESS — THE CONSTITUTIONALITY OF THE TREATY — HOW TO GET RID OF IT. The rules adopted by the treaty, and made binding on this country, (if the treaty be valid,) are, as we have already shown, highly objectionable. It is impossible for us to v» Lonster which id furv, and it lommissiouers 5 better than due to them leople that, if ve millions of his subject in restraining its a bad bargain, sady shown, of latter, there is he part of the if liability with he arbitrators, iopt the coiiti- ice to the doe- 1 have adhered ^ arms, &c., to :inff rid of the ,ps, have been X of and if the lus of getting inted out that •belligerent — \s of the con- ic would have SPUDIATBD BY ITREATY — HOW binding on I have already lie for us to 61 abido by them, especially if they are to be construed as our Secretary of State construes them. '^ Congress should interpose, and, at the very least, should adopt resolutions to the eft'ect, that the "case," as pre- sented, is not approved of. That course would be pursued by the British Parliament, in a case where the action of the government should be contrary to public opinion; and although there is an im^.ortant difference between the British constitution and ours, seeing that our Government may persist in its course in defiance of Congress, whereas the English government must defer to the House of Com- mons, yet that forms no sufficient reason why the executive should be allowed to act as it pleases, without supervision or rebuke. It is conceived that Congress might vdth great propriety resolve that the claim for indirect injury, and also the doctrine of the " case," as to due diligence, should be aban- doned. The obnoxiousness of the new rules might be very much mitigated by our putting a reasonable construction upon the words '■''due diligence," but the objection would still re- main, that we ought not to be called upon to use any dili- gence at all to prevent our people from building and selling ships available for war purposes, because, as shown by the House Committee's report on neutral relations, before re- ferred to, the effect of such a restriction is to deprive our ship-builders of their rights, and "to perpetuate the subju- gation of States without naval force to the rule of dom- inant maritime nations." Although these rules refer only to ships and ports, the principle affirmed by them imposes upon us the exercise of diligence to p''event the departure by land of persons sympathizing wHh a people fighting for their liberty, to which end we must repress all public meetings and com- binations of such sympathizers. The treaty-making power has undertaken to lay down the law of nations in exact opposition to the unaui- ■T= I .11 I PI. ill Him, 1^ 111' I I '«^ 62 mous opinion of the House of Representatives, as shown by Banks's bill on neutral relations. The direct represent- atives of the people are thus regarded as of no consequence, which reminds us of Queen Elizabeth telling the House of Commons not to trouble themselves with affairs of State, but to attend fco their own business. Whilst adverting to that bill, to amend the neutrality laws, the question maybe asked, whyitwas framed so as to make it unlawful to sell an armed ship, whilst declaring it to be lawful to sell a ship adapted for war purposes, and also to sell the armament separately ? It will be perceived that although by that bill it is unlawful to furnish, fit out, and arm a ship, (all these three things must be combined to constitute the <;)ffence,) it is perfectly lawful to build and sell a ship adapted for war purposes. That is directly antagonistic to the last portion of the first rule, which runs thus: "A neutral government is bound, first, to use due diligence to prevent the fitting out, arming, OR equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise .or to carry on war against a power with which it is at peace, and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cndse or carry on war as above, such vessel having been specially adapted in whole or in part, within such jurisdiction, to loarlike use." The question as to the constitutional power of the Pres- ident and Senate to make laws of the highest magnitude and importance, without the consent of the House of Rep- resentatives, deserves grave consideration. Our claims are clearly unjust. Why should we adhere to them? It is open to us now to declare that, even assuming them to have been rightful when first presented, they have become extinguished by the restoration of the Union, where- fore, we ask, that the treaty shall be abrogated. England, no doubt, would consent to that, upon a withdrawal of the claims. 63 That is the best way to get rid of the obligation sought to be imposed by the treaty/ article 6 providing that the two countries shall observe the new rules as between them- selves in future, and invite other powers to accede to them. Hereafter, when it is desired to make new laws, the action of the House of Representatives should be invoked. It may be found necessary to get rid of these new rules, even if we have to go the length of declaring that the Pres- ident and Senate had no power to impose those shackles upon the nation. w K r ;i!i \ » 1/ /,« *t. ir ,ir-M^'i 1# ik'irs='i'-J I §: i'.'A'/ ii!KiiiPh,'»t«rUnK, and seaL HQiipaalAT aoUa. m w«li «« amusli tiv«1«iid«r. .1^ :Oont(ibu(or» nni •ditoi'Itiohtofbi A ipuinaUst whtf jrith'li* pi«8«(it-afi»^ „ Tbal^MltfttMon CitiHwI. which M^^H^ iL W^l«8. Amaca Wnllii FimiS) UnwhttoR, aqd otherx. ' ''^ , Ob Ipwday*. aw • •oca^'od itlon patemwhd^* brien «» sharp and . On<« of tlift apfGi«ai-|>«|i«ii» i« th«, *ot> ctty. Itflowv flye» with tbe t— «n thfl foclnl an wicH i^ Jmltlfa^i Tb^CaMW haf a Hi*«^«tiity In^BattiinArQ, whertf tho H»t la * br»fl|«tit«of >Slt<>ri,*7^ wl The Oapltln, fi^UhM at W»»hf metttion/ «♦»«■»» aoHy whor* hMb«ieni{Ki»|N^^nt. 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