5361 UNIVERSITY OF CALIFORNIA. SAN DIEGO 3 1822 02669 0941 A A 1 4 6 6 in DUTHERN REGIONAL LIBR 1 6 7 2 ARYF ACI LITY SAN otteo 'J «r UNlVc. .11 r W.Li. ..M.,',, o-J DIEGo LA JOLLA, CALIFORNIA NEUTRAL RELATIONS OP UNIVERSITY OF CALIFORNIA, SAN DIEGO mi III III ill ill ill II 3 1822 02669 0941 iiiiiiii ENGLAND AND THE UNITED STATES. By CHARLES G. LORING. BOSTON: W T I. T. T A M V. S r E N C E R, 134, Washington Stijeet. 18G3. BOSTON: PRINTED BY JOHN WILSON AND SON, 5, Water Strekt. 6 3^1 LI PREFATOllY NOTE. The following articles, which appeared in the " Bos- ton Daily Advertiser" at the times of their respective dates, originated in an nndertaking to reply to a letter from a highly respected correspondent m Ireland, in which he had remarked, that, in complaining of alleged breaches of neutrality on the part of England in reference to the Rebel ships-of-war, the present writer had done less than justice to " the Government and a very considerable section of her people, who, without any sympathy for the North, or indeed any just appreciation of the cause which is at stake, do honestly desire on legal grounds, and with a view to the honor of the country, to preserve a strict neutrality ; " and had remarked, further, that he believed, that " in general, among the professional classes, this mode of viewing the question is the prevailmg one." It was soon found, however, that an effort to do any justice to the subject would far transcend the bounds of a letter, or indeed of ordinary correspondence. And it being a subject of great present interest and importance, and the investigation of it havmg necessarily led to much more extensive inquiry and reflection than had been anti- cipated, or than any one would probably give to it without an especial purpose, it was thought that the results of the investigation, however imperfect, or however unimportant IV PREFATORY NOTE, as adding any thing to the stock of knowledge, might at least attract the attention of others more competent for the discussion, and thus aid in the dissemination of useful intelligence. With this vj^ew, these results were offered to the Editors of the "Advertiser." While they were in the course of publication, several persons, whose opmions are entitled to high consideration, expressed the wish that the Numbers should be printed together in pamphlet form for more convenient perusal and dissemination ; and it is in compliance with that suggestion that they are now thus presented to the public. As these papers do not purport to be a systematic or exhaustive treatise on the subject, but merely to exhibit the results of the inquiries and reflections of one, who, amid many distracting engagements, was originally m- duced to enter upon them simply for the purpose of a friendly correspondence ; — as they were written at inter- vals as they were published, and consequently afforded no opportunity for reconstruction or change of arrange- ment ; — and as their ephemeral nature does not call for a pams-taking revision of them with a view to more sys- tematic or elaborate treatment, or finish of style, — it is hoped that no further apology will be thought needful for defects which might othermse seem inexcusable. They appear in this form almost precisely as they were originally printed, with very few verbal alterations, and, except one short passage, with nothing added that was not in the manuscript as prepared for the " Advertiser," and omitted there for the sake of brevity. In all quoted passages the Italicizing is by the author of these papers where the contrary is not stated. C. G. L. Boston, 1 October, 1863. NEUTRAL RELATIONS ENGLAND AND THE UNITED STATES. I. t GENERAL VIEW OF THE SUBJECT, There is no subject of greater present concern than the position of England in reference to her relations, as a neutral nation, to the United States ; and none, probably, soon to be- come of more engrossing public thought and anxiety. It is therefore important that we have well-defined and sound opinions concerning it, in order, on the one hand, not to be misled by an imaginary sense of injury into undue hostility towards her, which may stand in the way of a just apprecia- tion of her professed discharge of her duties as a neutral, and of continued peace with her as a friendly, nation ; and, on the other, to be prepared to sustain our Government in its dealings with her, if she is justly chargeable, as is often al- leged, with a want of substantial good faith, and a virtual complicity with the rebels who are waging war upon our national life. The following thoughts are thrown out with the sole intent of affording aid towards a right understanding of this matter ; and whether they shall be found acceptable as true exponents of it, or lead to reply or refutation tending to a more correct and satisfactory exposition, the purpose of their presentation to the public will be equally well answered. ' 2 NEUTEAL RELATIONS OF The duties of neutrality are regulated by the laws of na- tions ; and it is only when these are substantially violated that any just cause of complaint exists. But many nations, and among them England and the United States, have enacted statutes termed Neutrality Acts, or Foreign Enlistment Laws, for the purpose of compelling their respective subjects to conform to the laws of nations, and to forbear from interfering in wars between them, under various pains and penalties. These enactments, however, are merely municipal laws, which foreign nations have no power to en- force, nor to punish the infraction of; and the breach of which, in ordinary cases, they have no right to complain of, unless ito involve one of the laws of nations, and then only to that extent and on that exclusive ground ; or unless the fail- ure, on the part of the neutral, to enforce obedience to them, indicate a substantial departure from that impartiality which is of the essence of neutrality. So far, therefore, as such foreign nations are concerned, these Neutrality Acts, or Enlistment Laws, are of imperfect obligation. But, as these laws are founded in the comity of nations, and for the purpose of preserving friendly relations with each of them while they are at war among themselves, and in a sense of duty and interest, dictating the maintenance of an impartial neutrality, — and as they are on the side of peace and humanity, in opposition to piratical greed, seeking gain in the woes and misfortunes of others, and to voluntary injury to a friendly neighbor, — they certainly involve a high moral obligation, on the part of the government enacting them, to see them faithfully enforced. And a failure so to en- force them in flagrant cases, or connivance in their violation, or obvious indifference to their execution, when manifest opportunities present themselves, is good cause of complaint, alienation, and resentment; and such failure, connivance, or indifference, may, under some circumstances, justify an appeal to arms in self-defence, — especially so, where, from the nature ENGLAND AND THE UNITED STATES. 3 of the case and the rehitivc positions of tlie belligoronts, the benefit of such viohition is all on the side of one of them to the damage of the other, and is of great and substantial ad- vantage to the former, and of grievous injury to the other. In such case, the omission to exercise existing means to prevent the injury done to the suflering nation, — where pre- vention could give no just cause of complaint to the other, being a simple enforcement of the laws made for the equal protection of both, — may, in reason, and in the spirit of the law of nations regulating neutrality, be considered an unjust departure from it, and a virtual complicity with the enemy. And the case becomes more aggravated, when not only a great and distressing injury, which might be prevented, is thus permitted against a friendly power, but the nation, by which it is permitted, itself becomes a great gainer by means of it, and so participates with the other belligerent in the benefits of this breach of its own laws. Since the above sentences were written, the report of the last debate in the British Parliament on this subject has been received, in which Lord Palmerston, if correctly reported, explicitly admits that '' the American Government have a dis- tinct right to expect that a neutral will enforce its municipal law, if it be in their favor ; " thus conceding the principle as of even broader application that that above claimed. This is a concession of no small moment in reference to pre- vious debates, in which he was understood fully to sustain the Solicitor-General in the position, that the foreign-enlist- ment laws of a neutral nation were municipal laws only, in the enforcement of which the belligerent had no such in- terest as would justify complaint because of the failure to compel obedience to them ; which position the preceding suggestions were intended to contest. Now, it is a peculiar and most prominent fact in the history of the present Rebellion, that the rebels (having 4 NEUTRAL RELATIONS OF neither ships, arms, nor men for naval warfare, nor a single port where a ship could be constructed and fitted out which is not strictly blockaded, — and being without a single armed vessel of any important force at sea, built, or fitted out, or armed, or manned anywhere within their own asserted terri- torial or maritime jurisdiction, — and having little or no com- merce exposed to capture) have, nevertheless, on the ocean, under their flag, several large, heavily-armed vessels, which were built, equipped, armed, and mainly manned, by English- men, in English ports, or under the protection of the English flag until setting forth upon their piratical career for the plunder and destruction of American shipping; — that the crews of these vessels have in' fact destroyed many hundreds of thousands of dollars by sinking and burning American ships, having no port into which they dare attempt to carry them as prizes for adjudication ; — that many more such vessels are notoriously in process of construction in England, to be fitted out, armed, and manned in like manner, for the same purpose ; — and that this destruction and endangerment of American ships have already diverted a very large part of the carrying-trade, both foreign and domestic, from Ame- rican to English vessels, and are daily tending to increase English commercial prosperity in a ratio at least equal to the injury to the shipping interests of the United States. Another hardly less remarkable fact is, that while England is thus industriously and zealously aiding the rebels, and furnishing them the most efficient means which they now possess of maintaining their Rebellion, no other country has furnished a solitary vessel, great or small, or assisted in the furnishing of one ; while three of those countries at the least — France, Russia, and Spain — have abundant means of doing so, though, so far as a selfish interest is involved, no one of them has an equal temptation. If this state of affairs be indeed reconcilable with reasona- ble good fiith on the part of the English Government and ENGLAND AND THE UNITED STATES. 5 people, — if these vessels are thus built, equipped, armed, manned, and furnished to the rebels, in such manner and under such circumstances as to involve no breach of the law of nations, and to be in no such contravention of the neu- trality laws of England as reasonably requires the interposi- tion of her Government to prevent it in good faith to the United States, — then it is our duty to acquiesce in the evil, as a misfortune for which we have no cause of complaint against her, and to seek relief only in efforts to capture and destroy them. If, on the other ■ hand, these doings are in substantial violation of the law of nations, or in plain contravention of municipal laws made to prevent such interference between belligerents on friendly terms with England, — laws which could be enforced without any just cause of complaint on the part of either of the belligerents, and the enforcement of which, under the peculiar circumstances of the case, is plainly called for by a just impartiality, — then a good cause for complaint, and for claiming full indemnity, will be made out. Nor does the law of self-defence stop here. For, if it could be shown that these proceedings were in d.erogation, neither of the law of nations, nor of the existing neutrality laws of England, but that they are nevertheless so injurious, in strengthening the arms of the rebels and in weakening our own, as, unless prevented, to endanger the restoration of our Government to its lawful authority, and put our national life at hazard, — it would then become justifiable by the law of self-preservation, lying at the foundation of all codes whether of international or of civil law, to account those thus furnish- ing essential aid to our enemies as their allies, and so our enemies also, and to declare war against them ; — it being obviously absurd to deny that one who is put on the defence of his life is under any obligation to stand quietly by, and see the enemy, whik^ seeking to destroy it, supplied with the NEUTRAL RELATIONS OP essential means for doing so by another, and to waive all right of self- protection against them. If that protection be not given by the Government in the control of its sub- jects, it must be sought in the only way left to injured nations. 20 August, 1863. ENGLAND AND THE UNITED STATES. II. LAWS OF NEUTRALITY. GENERAL PRINCIPLES. The primary principle of neutrality under tlic law of nations is the strictest impartiality in regard to each of the bellige- rents. " The neutral is justly and happily designated by the Latin expression, in hello medlus. It is of the essence of his character, that he so retain this central position as to incline to neither belligerent." * The law of nations prohibits the enlisting of soldiers or sailors in the territory of a neutral nation for service in the army or navy of a belligerent at war with any nation which is at peace with such neutral, and also tlie fitting-out of any military or naval expedition therein for such service ; and the doing of any such act by the neutral, or the suffering it to be done within its jurisdiction, with the consent or connivance of the Government, is just cause of reclamation, — and of war, if satisfaction be not given. All captures made by vessels thus fitted out are in the nature of wrongs, and impose upon the neutral nation the duty of preventing them within its ter- ritorial limits, and of restoring to the injured parties the pro- perty so taken, if found within its jurisdiction.! So a capture made by a belligerent ship within, neutral ter- ritory, or by the boats of a vessel lying there, although the actual seizure be made without the territorial ]iB9its..Qf Jhe • Phillimore on International Law, vol. iii. § 137. t 5 Wlieuton's Rep. 385, " La Aniistad ile Rues." 7 Wheaton's Rep. 496, the " Arrogante Barcclones. 7 Wiieaton's Rep. 520, the "Monte Allegre." 8 NEUTRAL RELATIONS OF neutral, is void ; and it is tbe duty of the neutral to restore the captured property, if brought within its jurisdiction, or to make a claim upon the offending belligerent, and to indemnify the party injured. No proximate act of loar is allowed by the law of nations to originate on neutral ground ; and, if so origi- nated, it is a just cause of complaint, and of demand for in- demnity, by the belligerent nation against which it is perpe- trated. How far a nation is responsible for such acts committed clandestinely by its own subjects, without its knowledge or connivance or tacit sufferance, does not appear to be dis- tinctly stated. Upon all sound principle, however, it is clear, that, if such acts are breaches of the law of nations, the neu- tral must be responsible for want of reasonable diligence and care on the part of its Government to prevent them, or for failure to make a reclamation of the offending nation in order to indemnify the injured party ; it being the duty of the neu- tral in such cases to intervene, inasmuch as the injured party cannot have redress against its enemy for violation of neutrali- ty, or for injuries inflicted by him on neutral ground. And, if the offending belligerent, from the nature of the case, be incapable of making redress, justice requires that the neutral permitting the injury within its. territories should be imme- diately responsible for full indemnity ; and, if the neutral power be unable or unwilling to protect the belligerent on its territory, the right of self-protection then arises, and justifies him in any measures necessary for self-defence upon the terri- tory of the neutral, and even in a declaration of war. But, although it is not permissible, by the law of nations, for the citizens of a neutral nation to furnish, fit out, or equip vessels of war for the service of a belligerent, or to augment the warhke force of a vessel in such service, or to commit any proximate act of war against his enemy within the terri- torial limits of the neutral, it is lawful to sell arms and muni- tions of war to either belligerent, or to the citizens of either, ENGLAND AND THE UNITED STATES. 9 to be transported to a foreign port (the seller or purchaser taking the risk of capture by the eneuiy in such transporta- tion), or to sell them in the neutral port in the ordinary course of trade, provided that it is a mere sale of articles in which the neutral has a right of traffic ; and then the subsequent or remote use which the purchaser may make of them, to which he is no party, attaches no wrong to the transaction. But, when delivery is to the enemy in the neutral country, in order and with intent to constitute an augmentation of his warlike armaments about to issue from it, it is an immediate or proximate act of war, which the law of nations does not tolerate, and which no neutral government is justifiable in permitting, or in failing to use reasonable diligence to pre- vent.* There is, therefore, no good ground of complaint against England because her citizens sell arms and munitions of war to the rebels, either delivered to them within her territories, ' to be transported by them to ports in their possession, or sent for sale at such ports at the risk of the venders. This they have a perfect right to do. -^ ^~*0n the same principle, it is attempted to be maintained, that subjects of England may build and equip ships of war on con- tract with the rebels, to be delivered in her ports or in their own, or at sea, or in neutral ports, designed for the commis- sion of hostilities against the United States, and that such sale and delivery constitute no offence against the law of nations or her Neutrality Act ; and tlie case of the " Santissi- ma Trinidad," above cited, is confidently relied upon as con- firming this doctrine. But that it falls very far short of doing so, is manifest; as neither was the vessel built, nor was her armament furnished, upon any contract of sale or other agree- ment with the belligerent, nor were they sent out under an}^, but were so sent for sale entirely as a commercial adventure, * 7 Wliciitoii's Rep. 283, the " Santissimii TrinidiiJ." 2 10 NEUTRAL RELATIONS OF ' — the vessel being convertible into a merchantman by the mere removal of her armament ; — so that the Jixed intent or purpose of having either used in the commission of hostilities against a friendly nation was wanting. Lord Palmerston, in the recent debate above referred to, in which he betrays an ignorance of American history and judi- cial decisions upon this branch of national law in correspond- ence with his generally superficial treatment of the subject, if his speech is correctly reported, seems to place this right of a neutral to sell ships of war to a belligerent upon the ground, that " no distinction can be drawn between ships that may evidently be built for warlike purposes and those that may be eventually applied to warlike purposes." He proceeds to illustrate the position by the convertibility of steam-vessels in the passenger and merchant service, that could readily be, and some of which have been, converted into ships of war; and puts the case of the " Nashville," converted from a pas- senger-ship into a privateer, as an instance. And he con- tinues : " In the same way, a ship might be built in this coun- try, capable of being converted into a ship of war, but with respect to which, while building, it would be perfectly im- possible to prove, by any legal construction, that she was intended for a ship of war, and therefore liable to be interfered with." Now, such language as this might have done very well a few years ago, before the invention of Monitors and Tur- reted Rams, when the great distinction betAveen ships of war and merchantmen was the armaments of the former, and the want of them in the latter ; but it is mere trifling with prin- ciples and facts as applied to modern, or what is rapidly be- coming the principal system of modern, naval warfare. It is self-evident, that a Monitor or Turreted Ram can never be built, nor be intended to be used, as a merchant vessel, and that, practically speaking, it can never be so employed ; for, if it were physically possible for the hull to be so, its cost, and ENGLAND AND THE UNITED STATES. 1 I weip^lit, and want of adaptation, would render it impossiMe to anticipate any purchase or employment of the vessel for such a purpose. At the same time, it is manifest that such a vessel is a complete and most formidable engine of war, though she may not have a gun on board. Her bulk, weight, and spec<l under steam, and her armed beak, and power to eject hot water and steam upon the enemy's deck, make her as formidable, without any guns to complete her armament, as she would lie with them, to any merchant vessel, or to any much weaker vessel of war, — with the only exception of being unable to operate at equally long range ; and the commerce of a nation might be swept from the ocean by vessels of this descrip- tion, without a gun on board, as eftectually as by those heavily armed with ordnance. If, then, the prohibition, by the law of nations, of the fitting- out or equipping ships of war by a neutral in her own ports to commit hostilities against a friendly belligerent is founded on any principle, it applies to vessels of this description with- out further armament, as well as to those of the ancient model furnished with guns. Nor would England, if at war, for a moment tolerate in any neutral nation the prevarication by which it should be attempted to draw such a distinction, and to claim immunity for furnishing the enemy with such ships of war. There is a remarkable dearth of authority and satisfactory discussion in England upon the question, now of such immi- nent importance, of what constitutes such " fitting-out of a naval expedition, or of vessels of war," by a neutral, or in a neutral port, as shall constitute a violation of the law of nations, or of the Neutrality Acts. It is clear, that the mere building and equipping of a vessel of war for sale in a neutral port is no such violation, nor the building for a belligerent of a vessel which may be designed for one of war or for some peaceful service. And, so far as the case of the '' Santissima Trinidad" shall be accepted as authority on a point, which, 12 NEUTRAL RELATIONS OP though raised, was not necessary for its decision, it appears that the sending-out by a neutral of a vessel equipped with a warlike armament as a commercial adventure, for sale to a belligerent if he shall see fit to purchase, is no such violation of the law of nations or of our Neutrality Act, — though the doctrine appears substantially inconsistent with the principles announced by the same Court in later cases, and a rigid enforcement of a perfect system of neutrality might seem to require that such an expedition, followed by a sale to the bellisxerent, should be accounted a substantial violation of them, — the mere contingency, that the belligerent might not elect to purchase, being too remote to disprove a real inten- tion to sell to him, and being one so easily feigned. Whether the construction and equipment of a ship of war in a neutral port, upon a contract with a belligerent, for de- livery there, with knowledge by the builder of the intention to use her in hostile operations against a power in peaceful relations with the government of the neutral (such knowledge being either necessarily inferable from her not being suscep- tible of any other use than for the purposes of war, or other- wise satisfactorily proved), are in violation of the neutrality act of Great Britain, is a question now pending in her courts. A respectable tribunal has decreed that they are not ; but an appeal has been taken, and the ultimate decision is looked for with great interest. No doubt can be entertained, that, ac- cording to the American decisions under the American Enlist- ment Act, a contrary doctrine obtains in the United States, and that, in an American court, a friendly belligerent would find entire protection against any such designs. But, whatever differences of opinion may exist as to the degree of preparation or design necessary to constitute a vio- lation of neutrality, there seems to be no question, that the combined equipment, armament, and preparation of a vessel for immediate hostilities, with the intention of sailing from the neutral port for such purpose, is a violation of the law of ENGLAND AND THE UNITED STATES. 13 nations and of the Neutrality Acts, exposing the guilty parties to the pains and penalties of the law, and tlie vessel to forfeit- ure. " Where the elements of armaments are combined, they come within the provision of the law ; " but, if that combina- tion does not take place until they have left the neutral coun- try and are no longer within its jurisdiction, it is said that its Government cannot interpose. Upon the principles above stated, great and most interesting questions are to be solved between the United States and England, — both concerning the various vessels, built in Eng- lish ports, armed, equipped, and mainly manned, by English subjects, and now careering the seas, in the service of the rebels, for the destruction of American commerce, — and con- cerning other formidable vessels of war now in process of construction there for the like service. 22 August, 1863. 14 NEUTRAL RELATIONS OP III. HISTORY OF THE NEUTRAL RELATIONS BETWEEN ENGLAND AND THE UNITED STATES. The true construction, however, of the obhgations of a neutral power, in reference to the fitting-out of ships of war within its jurisdiction to serve against a friendly belligerent, both under the law of nations and its own municipal laws, would seem to have been long ago conclusively settled, at least as between England and the United States, if precedent is of any authority, or if scrupulous fidelity in preventing such proceedings by one party, at the instance of the other, can be considered as imposing upon the latter any reciprocal duty ; nnd this, too, in the application of such obligations to cases where the warlike force depended, as of old, on the armament, and not upon the peculiar construction and equipment of the hull. And it does, indeed, seem passing strange, that such entire ignorance of, or careful abstinence from reference to, not remote history, should characterize all the debates in Parliament, and discussions by the ministerial presses and the courts of law, upon this subject. In contemplating the treatment which this country has received, and is receiv- ing, at the hands of England, in this struggle for national life one is almost driven to the conclusion, that the history and the fate of America, even in reference to the neutral obligations of England towards her, are looked upon as beneath an Eng- lishman's study or consideration ; he seeming to care nothing about either, or his only thought being how to make the most of the complication for his own benefit. ENGLAND AND THE UNITED STATES. 15 After the termination of the war of the Revolution, and the acknowledgnient of the United States as an independent nation, and when occasion arose to develop her sense of duty as a neutral under the law of nations, it is gratifying to know, that she commenced her career by the most liberal interpretation of it in reference to her obligations and the rights of others, and has ever since been foremost in the effort to place these upon foundations of the broadest human- ity. The first call made upon her was a crucial test ; for it was made by England, her recent oppressor and enem}', for protection against the violation of neutral relations within her territories by or in behalf of the subjects of France, her ally and friend, by whom she had been aided in the war witli England, and towards whom the United States felt and ac- knowledged the strongest obligations. In the great war then raging between England and France, the English Government entertained, very naturally and with good reason, apprehensions that privateers would be fitted out in the United States to prey upon English commerce under the French flag ; and, their apprehensions being com- municated to our Government, President Washington, in 1793, issued a proclamation forbidding all such violations of neutrali- ty, and stating that instructions had been given to the officers of the United States to cause prosecutions to be instituted against all persons who should violate the law of nations, with respect to the powers at war, or any other. The Secretary of the Treasury, Mr. Hamilton, issued instructions to the collectors of the customs, commencing with the following preamble : " It appearing that repeated contraventions of our neutrality have taken place in the ports of the United States, without having been discovered in time for prevention or remedy, I have it in command from the President to address to the collect- ors of the respective districts a particular instruction upon the subject." And he proceeds to direct them to " have a vigilant eye upon whatever may be passing within the ports. 16 NEUTRAL RELATIONS OF harbors, creeks, inlets, and waters [of their respective dis- tricts], of a nature to contravene the laws of neutrality ; and, upon discovery of anything of the kind, to give immediate notice to the Governor of the State, and to the Attorney of the Judicial District." * At the same time, the Governors of States were called upon to cause vessels to be arrested, if about to depart on any such service ; and several were so arrested, and prevented from sailing. Prizes, which had been taken by such privateers fitted out, and sailing from ports, in the United States, were restored to the British owners ; and the Government of tiie United States proclaimed, that it held itself responsible to indemnify for such captures. All this was done under a sense of duty, as imposed by the law of nations^ no Enlistment Act having then been passed. But, in 1794, Congress, with an earnest desire to preserve the strictest fidelity, enacted a statute on tin's subject, for the pur- pose of compelling the observance of an entire neutrality Avithin the jurisdiction of the United States. And, in the same year, a treaty was made with England, in which one clause provided, that the United States should make indem- nity to British owners for vessels which had been previously captured by privateers that had been fitted out in the United States. This Act of 1794 ivas made immediately after the application of the British Government upon this subject, and for the purpose of insui^ng the immediate observance of a strict neutrality ; as was expressly admitted and stated by Mr. Can- ning in Parliament. — (Canning's Speeches, vol. iv. pp. 52, 53.) And yet we are now coolly told by Lord Palmerston and Earl Russell, that England cannot alter her municipal laws to suit other governments ! The Act of 1794 was revised, and a new act passed, by Congress in 1818, containing still more rigorous provisions for the preservation of a strict neutrality, in immediate reference * 1 American State Papers, p. 140. ENGLAND AND THE UNITED STATES. 17 to the war then raging between Spain and lier Soutli-Aineri- can colonies. And, in 1810, the Englisli Government imitated our example, by the enactment ol'the Statute 59 George IH., constituting tlieir present municipal code upon this subject; — a statute in substantial conformity with that of the United States, and giving, certainly, reasonable ground of expecta- tion, that England was thenceforth to stand pledged to the same faithful and honorable discharge of the duties of neu- trality towards this country as had been practised by us towards her. These Neutrality Acts are founded upon the law of nations, and designed to secure its enforcement by remedies consist- ing of provisions, and forms of proceeding, and pains and penalties, necessarily of a municipal nature ; there being no international remedy applicable to cases within the territorial jurisdiction of a neutral nation. The portions most material to the matter in hand are as follows, taken from the English ■r Statute- &d George III. : — __„. . 1 Section 2 provides, that if any subject shall enlist, or agree to enlist, as an officer or soldier or sailor, for any warlike pur- pose in any foreign service, or go to any foreign state with a view so to enlist ; or if any person within the kingdom shall attempt to hire or engage any person so to enlist, or to go or agree to embark from his Majesty's dominions for the purpose of being enlisted or engaged ; every such person shall be deemed guilty of a misdemeanor, punishable by fine and imprisonment. Section 5 provides, that if any vessel in any port of his Majesty's dominions shall have on board any person who shall have so enlisted or engaged to enlist, or be departing with intent to enlist, such vessel, upon information, shall be detained and prevented from proceeding. Section 6 provides, that if any master of a vessel shall know- ingly take on board, or any owner shall knowingly engage to take on board, any person so enlisting or intending to enlist, 3 18 NEUTRAL RELATIONS OP he shall forfeit X50 for every person so taken, and the vessel shall be detained until payment of the penalty. Section 7 (corresponding substantially with the third section of the statute of the United States of 1818, chap- ter 88, and containing the provisions most material for consideration) enacts, that, " if any person, within any part of the United Kingdom, shall without the leave, &c., &c., equip, furnish, fit out, or arm, or attemid or endeavor to equip, fur- nish, fit out, or arm, or procure to be equipped, furnished, fitted out, or armed, or shall knowingly aid, assist, or be con- cerned, in the equipping, furnishing, fitting out, or arming, of any ship or vessel, tuith intent or in order that such ship or vessel shall be employed in the service of any foreign prince, state, or potentate, &c., &g., as a transport or store- ship, or with intent to cruise or commit hostilities against any prince, state, or potentate, <fec., «fec., with whom his Majesty shall not then be at war ; " '' every such person so offending shall be deemed guilty of a misdemeanor, and shall, upon con- viction thereof, upon any information or indictment, be pun- ished by fine and imprisonment, or either of them, at the discretion of the court in which such offender shall be con- victed ; and every such ship or vessel, with the tackle, apparel, and furniture, together loith cdl the materials, arms, ammunition, and stores, which may belong to, or be on board, of any such ship or vessel, shall be forfeited." The verbal differences between these Statutes, introduced into that of England, seem to render it, if anything, more explicit and comprehensive than that of the United States ; and would seem, therefore, to require of English tribunals at least an equally liberal interpretation, in favor of a friendly belligerent, with that adopted by the tribunals in America. The next occasion for the elucidation of the principles of our Government on this subject was in the war of 1854-55, between Russia, on one side, and England and France, on the ENGLAND AND TTIE UNITED STATES. 19 other. And here, again, the test was a stringent one, as the utmost cordiality had always existed between the Rus- sian Government and that of the United States. When that war broke out, the Britisii minister at Washing- ton addressed a communication of the fact to the Executive of the United States, in which he took occasion to say, that " the allied governments confidently trust that the govern- ments of the countries which remain neutral durini:; the war will sincerely exert every effort to enforce upon their subjects or citizens the necessity of observing the strictest neutrality ; and that the United-States Government icill give orders that no privateers, under Russian colors, shall be equipped or victualled in ports of the United States ; and also that the citizens of the United States shall rigorously abstain from taking part in armaments of this nature, or in any other measure opposed to the strictest duties of neutrality.''^ And the United-States Secretary of State, in reply, promised the exercise of all the powers of the Government " to enforce obedience to the neutrality laws." Here, then, we have the British Government, in her hour of need, calling upon that of the United States to take active measures to secure the citizens of the former from all injury by any departure from the strictest duties of neutrality ; and the voluntary assurance given in return, that the laws to compel it should be rigor- ously enforced. Nor has it been left to conjecture how the British Govern- ment would think it proper to construe their requisition, or how the United States would interpret their promise to comply with it. During that war, the bark " Maury " of New York, a mere merchant-ship, was fitting out in New York for a voyage to China ; and, a suspicion having arisen in the minds of the British consul and some English residents, that slie was taking in arms and munitions of war, to be used in the service of Russia, and the consul having communicated his suspicions to the British minister at Washington, and he 20 NEUTRAL RELATIONS OP having made complaint to the Government of the United States, — though the evidence submitted, on which it was founded, was of the feeblest and most unsatisfactory charac- ter, — the vessel and cargo were immediately seized by oflficers of the United States, without the slightest previous notice to the owners, and were detained until the British con- sul, and those instigating the seizure, were perfectly satisfied that the suspicions were wholl}^ erroneous ; and for these he afterwards made a public apology in one of the gazettes in that city. Well might the British Government, on the breaking-out of the war with Russia, have felt apprehensions, and feared the violation of a strict neutrality by the citizens of the United States, or their complicity in such violations, — and well might she have implored the interposition of our Gov- ernment to protect her from them, — if it could then have been anticipated what the principles and conduct of her own Government and subjects would be in like circumstances, when she should stand in the relation of a neutral, and the United States in that of a friendly belligerent. For, if the Executive and people of the United States had then acted upon no higher principles, and in no better faith, in their respect of neutral obligations, than the ministry and people of England have done in this war, the seas would have swarmed with Russian privateers, built and equipped in American ports, or under the protection of the American flag, and her commerce would have been swept from the ocean. In the late debate in Parliament, above alluded to, while a studied forgetfulness of this case was observed, — though it was one of great notoriety in England when the suspicions and seizure of the " Maury " were made known there, and is not to be supposed, therefore, to have been forgotten, — an attempt was made by Mr. Laird, a member of the House of Commons, and the principal builder of vessels ENGLAND AND TUE UNITED STATES. 21 for the rebels, to justify his conduct and that of the Ministry by a statement, that, during the war with Russia, a vessel named the " America " was built, equipped, manned, and armed in the United States for the Russian Govern- ment, and taken out to the Pacific Ocean under the com- mand of Captain Hudson, an ex-lieutenant of the American Navy, and that the American Government gave orders to its admiral to protect her from search by English and French officers. To this statement. Lord Palmcrston hastened to give his official sanction ; adding, " that the British Govern- ment made complaiid, but that the local authorities found that there was no ground for molesting her ; but that, nevertheless, there ivas the best reason for believing that the ship was destined for the Russian Government, and for naval opera- tions in the Eastern seas, where the Russian Government most needed assistance ; " " that they had reason to believe that other ships were then building in America for the same purpose, and would have been used if the tear had con- tinued; " and that therefore he held, that, on mere ground of international Id^v, belligerents have no riglit to complain, if merchants, as a mercantile transaction, supply one of the belligerents, not only with arms and cannon, but also with ships destined for warlike purposes. Now, this story — in all that is essential in it tending to show any justification of the conduct of its author, or of his country, in their conduct as neutrals towards the United States in furnishing armed ships of war, or ships of war of any kind — is a sheer fabrication, as is shown by the official documents, and statements by official authority at Washington, issued immediately upon the publication of that debate in this country. By them it appears, that, after the capture of Sebastopol and the virtual ending of tlie Crimean war, a vessel, which may have been built to serve as a steam-tug in the Russian possessions on the North-west Coast (but, if so, the Execu- 22 NEUTRAL RELATIONS OF tive Government of the United States had no knowledge of it, and no complaint of it whatever had been made from any quarter), sailed from New York under the command of a master who was named Hudson (and who previously had been a midshipman in the Navy of the United States), and put into Rio Janeiro on her way, in February, 1856 ; — that she was not armed, nor in any manner equipped as a vessel of war ; — :but that, suspicions being excited by the statement of a British sailor (who had shipped there, and had been dismissed two hours afterwards for misconduct) that she had arms concealed under her coal, the British and French officers insisted on the right to search her. This right was denied by Captain Hudson. But he gave his affidavit (with the approbation of the commander of an American frigate then in port), stating that there were no other arms or munitions of war on board than one Minie rifle, one double-barrelled shot-gun, one pair of Colt's revolvers, one pair of pocket pistols, a ten-pound keg of powder, and a bag of No. 6 robin shot ; and that his manifest, exhibited, was in every particular correct. This not appearing to be a supply of arms and ammunition cal- culated to frighten the British and French naval forces in the Pacific, " the affidavit quieted the excitement, and she was allowed to proceed." Now, it is expressly stated, upon official authority, that no complaint of any sort concerning this vessel is on file in any department of the United-States Government from any diplomatic or consular office of Eng- land, France, or any other enemy of Russia ; while the regular official account of the afiair (as given above) from the Minister of the United States in Brazil is on file in its proper place. If any complaint was made by the British Government on this subject, as alleged by Lord Palmerston in his place in Parliament, or if his Government were not satisfied, it can, of course, be shown by reference to the British archives, although not found in those of the United States; unless, ENGLAND AND THE UNITED STAETS. 23 indeed, it be tliouglit too condescending to admit or correct a misstatement made by an English Prime Minister, even though of moment in a question affecting the relative good faith of two nations, and possibly their future peaceful relations. The probability seems to be, that his Lordship, not having thought it worth while to refresh his memory upon the sub- ject, confounded this case Avith that of the " Maury," above stated, where complaint Avas actually made ; but forgot the other part of it, — that not only did the local authorities find that there was no ground for arresting her, but that the rep- resentative of his Government was satisfied that the com- plaint was not only groundless, but so unwarrantable, that he made a public apology for having caused it to be made. It would be but the merest justice, on the part of Lord Palmerston, to specify those other cases of suspicion, spoken of in his speech, allusion to which must have been intended to confirm suspicions that this country had been guilty of violations of neutrality similar to those now complained of by us ; and it is to be hoped that a just sense of the respon- sibility of making such grave charges against another nation, may lead, when the subject is next up, or on some equally prominent occasion, to some specification by which their truth may be tested. He cannot be ignorant that such statements, made in his place, go forth to his countrymen, if not to the world, with the force of absolute truth, and produce convictions far beyond the mere literal meaning of them ; and he owes it to a respect for his position, if not to his own reputation as a truth-telling gentleman, not to indulge in those grave suggestions and innuendoes of bad faith against a nation, unless he be prepared to maintain them by satisfactory proof. That proof, if it exist, the people of the LTnited States have a right to demand at his hands. As to the other attempt made by Mr. Laird to implicate the 24 NEUTRAL RELATIONS OF Government of the United States, by charging the Secretary of the Navy with efforts to procure hira to buikl ships of war for its service in the present RebelHon, it is presumed that the official declaration of that officer, that he never made any such attempt, nor authorized any other person to make one, will be considered a sufficient refutation of Mr. Laird's story, founded wholly upon the representations of a correspondent whose name he cannot, or does not, disclose. But, were fur- ther refutation necessary, we have an ample one, if that cor- respondent be, as is supposed, one J. Howard ; who, as Mr. Sedgwick, the Chairman of the Naval Committee of the House of Representatives, in his recently published letter of Aug. 9th, 1863, says, "came before the Committee with drawings, specifications, estimates, &c., &c.,from the Lairds, sa^nng that he came at their instance to make these proposals to the Navy Department ; that he was told to go to the Secretary of tlie Navy, which he did ; and afterwards reported to him [Mr. Sedgwick] that Mr. Welles declined entering into any nego- tiation about it, and that Howard was not very well pleased with the result ; that he [Howard] was an agent of the Lairds, and not of the Navy Department ; or, if not an agent, a vol- unteer expecting a commission from Laird ; and was furnished in advance by him with plans, estimates, &c." Such are the wretched pretences and baseless fabrications by which it is attempted to sustain the conduct of England in this matter, as justified by the previous conduct of the United States. "Were it not for the shortsightedness ever attending in- tense selfishness, and ever its avenging Nemesis, it might have been supposed that England would liave been careful, if not just, in the observance of neutral relations to the United States, — at least, in reference to privateering, — in contem- plation of the possible re-action upon herself in the event of war between her and any other nation. The Japanese, if the threatened war between England and Japan should take ENGLAND AND THE UNITED STATES, 25 place, or the Chinese rebels, if acknowledged by the United States as belligerents, would liave better claims upon us for sympathy, and for material aid under a loose construction of our neutral obligations to England, than the rebels had upon her, — to say nothing of tlie breaking-out of a war between her and any other nation ; and it would only need that we should act upon that standard of neutral morality wliich she has adopted towards us, to render any power at war with her, however weak or remote, a most formidable enemy to her commerce. 25 August, 1863. 26 NEUTRAL RELATIONS OF IV. HISTORY OF THE JURISPRUDENCE OF THE UNITED STATES IN REFERENCE TO NEUTRALITY. The Judicial history of our country has been equally demon- strative of her good faith, — her just appreciation and faithful fulfilment of her duties as a neutral nation, — with the history of the Executive Government. Not only have vessels been seized and detained, and per- sons punished, for infractions of the law of nations and of the Neutrality Acts, but decisions have been made by the Supreme Court, based upon the recognition of the broadest principles of international good faith, and in striking contrast with the modern doctrines avowed and acted upon by the Ministers, members of Parliament, and subjects of Great Britain, — and, as is feared, recognized also by one of her respectable judicial tribunals. The first important case reported, is that of the " Santissima Trinidad," in 1822. (7 Wheaton's Rep., p. 283.) The facts proved were, that a vessel, built for a privateer, and used as one out of Baltimore during the war of 1812 between the United States and Great Britain, was, after the peace, sold by her owners, and sent by the purchasers, with her armament and a cargo of munitions of war, to Brazil, then at war with Spain, as a commercial adventure, — for sale to the Brazilian Government, if it should see fit to purchase her, but with no previous contract or understanding to that effect, and, as it appears, with no limitation as to the purchaser ; her apparent destination, however, being; to tlie North-west Coast. She fA ENGLAND AND THE UNITED STATES. 27 was purchased by private individuals, and afterwards commis- sioned as a Brazilian vessel of war, under the name of the " Independencia del Sud," and sailed on a cruise on the Spanish coast. She afterwards put into Baltimore, and there enlisted an addition to her crew of about thirty men, and procured also another small vessel as a tender (called the " Altravida "), and sailed upon a cruise ; in the course of which she captured the property in question, and brought it into Norfolk, where it was landed for safe keeping in the custom- house store, and was libelled by the Spanish consul in behalf of the original owners. The court decreed restitution to them on the ground, that the augmentation of the force of the vessel in Baltimore was " a violation of the law of nations, as well as of our own muni- cipal laws, and, as a violation of our neutrality, by analogy to other cases, infected captures subsequently made with the character of torts, and justified and required a restitution to the parties injured by such conduct ; " and that " it did not lie in the mouth of wrong-doers to set up a title derived from a violation of our neutrality." (p. 297.) Another point was made in the case ; namely, that the cap- ture was void, because the '' Independencia " and "Altravida " Avere originally equipped, armed, and manned, as vessels of war, in our ports. This point was summarily dismissed, upon the ground, that, though the " Independencia " was equipped as a A^essel of war, " she was sent to Buenos Ayres on a commercial ad- venture, contraband indeed, but in no shajje violating our laws, or our national neutrality ; " and that there was nothing in our laws, or in the law of nations, that forbids our citi- zens from sending armed vessels, as well as munitions of war, to foreign ports for sale ; it being a commercial adven- ture which no nation is bound to prohibit, and which only exposes the persons engaged in it to the penalty of confis- cation. 28 NEUTRAL RELATIONS OF This opinion (delivered in the broad and sweeping language which was somewhat peculiar to the learned judge who pro- nounced it, and which leads American lawyers ever to scan his decisions with care, and with constant reference to the facts upon which they purport to be founded,) may perhaps seem broad enough, at first view, (and appears to have been so understood in England) to cover the case of the sending- out of an armed ship to the belligerent upon a contract of sale, and so to reach the cases of the vessels furnished by Englishmen to the rebels. But it is the universally established rule of construction, in the courts of England and in this country, that the language of the court, however broad and general, is to be limited by the facts to which it is applied, and that it establishes no doc- trine beyond that necessary for the decision of the case limited to them. Now, the facts proved in this case were, that the vessel was not sent to Brazil under any contract with the Brazilian Government, but only with instructions to sell her to it if a suitable price could be obtained ; and, in point of fact, she was sold to private individuals there, and was sub- sequently sold by them to the Government, — a very material distinction, and one expressly recognized by the same court in a subsequent case. This case, therefore, so far as it is authority on this point, only establishes the doctrine, that the equipping of a vessel for war in a neutral port, and the sending her out for sale to the port of a belligerent as a commercial adventure, to be sold to the belligerent government if it shall elect to purchase her after her arrival there, (the neutral owner taking the venture of any such sale, and the risk of capture and confiscation, by the other belligerent, as contraband, on the voyage to such port,) is not a violation of the law of nations or of our muni- cipal laws. But, even to this extent, the case is not of a very conclusive character, as the point, though presented, was not material to the decision of the case, nor that on which it ENGLAND AND THE UNITED STATES. 29 depended, and might, with perfect propriety, have been left untouched, and so the decision of it comes very nearly within the class of obiter dicta, which are of no authority in future decisions. This is the decision so constantly and tauntingly referred to by the English press and Parliament, as fully justifying British subjects in supplying the rebels with ships of war ; and was the decision supposed to have been particularly referred to in the judgment in the recent case of the "Alexandra," which was decided in favor of the owners, and against her confiscation, on the broad general ground, that a neutral has the right to furnish ships of war, as well as munitions of war, to a belligerent. With how little reason it can be thus cited, and how entirely short it falls of justifying that judgment, is evident enough, but will presently be more particularly considered. The next case is that of the '' Gran Para," — decided by the same court at the same term, and reported in the same vol- ume (7 Wheaton, p. 471), — of striking importance, as show- ing the fidelity of our courts in looking behind shams in order to protect other nations from violations of our neutral obligations, but entirely overlooked, or perhaps happily " remembered to be forgotten," in the English discussions of the subject. That, too,' was a case of libel for the restitution of property, consisting of a large amount of gold and silver coins plun- dered from Portuguese vessels by a privateer cruising under a commission from the Oriental Republic, on the ground that the captures were illegal, as made in violation of our neu- trality laws. This vessel was built in Baltimore for the purposes of war, and, after being launched, was purchased by one Daniels, who enlisted a crew of about' fifty men, and took on board into her hold an armament and munitions of war, entered as out- ward cargo. She cleared for Teneriffe, but proceeded directly 30 NEUTRAL RELATIONS OF to Buenos Ayres, where the crew was discharged. But, he having obtained a commission to cruise against Spain, a crew was enb'sted, consisting chiefly of the same persons ; and she sailed on a cruise, under the command of Daniels. On the next day after sailing, he produced another commission from the chief of the Oriental Republic to cruise against Portu- gal, and returned that from the Brazilian Government, and subsequently made the captures in question. It was asserted in defence, that, — as she was not commissioned as a privateer when she sailed from Baltimore, and did not attempt to act as one until she reached the river La Plata, Avhere a commission was lawfully obtained and her crew was enlisted, — if she had committed any offence against our neutrality laws at the time of sailing from Baltimore or on the passage (which was denied), it was deposited at the end of that voyage ; and that her subsequent cruise could not be connected with the trans- actions at Baltimore. Chief-Justice Marshall, in delivering the opinion of the court, after reciting the facts and this defence, used the fol- lowing indignant and decisive language : ^' If this were to be admitted in such a case as this, the laws for the preservation of our neutrality would be completely eluded, so far as their enforcement depends on the restitution of prizes made in vio- lation of them. Vessels completely fitted in our ports for military operations need only sail to a belligerent port, and there, after obtaining a commission, go through the ceremony of discharging and re-enlisting their crew, to become per- fectly legitimate cruisers, purified from every taint contracted at the place where all their real force and capacity for annoy- ance ivere acquired. This would indeed he a fraudulent neu^ trality, disgraceful to our own Government, and of which no nation ivould he the dupe. It is therefore very clear, that the ' Irresistible ' was ai'med and manned in Baltimore, in violation of the laws and of the neutral obligations of the United States ; " — the court thus declaring it to be equally ENOLAXD AND THE UNITKD STATES. 31 an offence against our Neutrality Acts and the law of nations. * Can we suppose that this venerable and great judge would have used language any less severe and reproachful of his countrymen, if the case had been one of a vessel built, and fitted out, in all points except her armament, munitions, and crew, for a vessel of war, in New York, on a contract with a belligerent government with whom England was at war, and having her crew engaged in New York, and her armament and munitions all furnished, or made by contract, there, and all shipped there in vessels under the United-States flag, with an arrangement to meet her on the high seas, or on some remote neutral coast, there to be united, all being under the protection of the American flag until so united, and until the production of a commission from the belligerent government authorizing her, from that moment, to plunder and destroy English commerce wherever it could be found ? Or can we suppose that England would suffer herself to be the dupe in such a game ? It is to be observed, that, upon the principles upon which both of these cases were decided, the vessels would have been confiscated if seasonably detected and prosecuted, — the judg- ments being rendered upon the same section of the Neutrality Act which provides for a forfeiture of the vessel ; but no complaint against them appears to have been made by either the Spanish or Portuguese consul or minister, nor was any notice whatever communicated to the officers of our Government while the vessels were within its jurisdic- tion. The next case, and one still more impressive, as exhibiting the perfect good faith with which our neutrality laws have been enforced, and which, if imitated by other nations, would leave little room for complaint or international questions upon the subject, is that of U. S. v. QuincT/ (in 1832), ^ Peters- Rep. 445. This was an indictment under tlic third section 32 NEUTRAL EELATIONS OF of the Neutrality Act of 1818, corresponding substantially with the seventh section of the Act of 59 George III. ; the principal difference being the substitution in the latter of the word " or " for " and," rendering its provisions, if any change was thereby made, even more comprehensive than those of the American statute. The facts proved were, that a Baltimore pilot-boat, named the " Bolivar," was purchased and fitted out, by the defendant and one Armstrong, with sails and masts larger than those required for a merchant vessel, and was altered so as to enable her to carry passengers, and by making a port-hole for a gun ; — and that she sailed for St. Thomas, having on board provis- ions, thirty-two casks of water, one gun carriage and slide, a box of muskets, and thirteen kegs of powder ; a bond having been given by the alleged owners not to commit hostilities against any people at peace with the United States. After her arri- val at St. Thomas, Armstrong had no funds to arm and equip her, and it was uncertain whether he could get any. She was, however, there fitted out as a privateer, and sailed to St. Eustatia (having changed her name to " Las Daraas Argen- tines"), and thence on a cruise under command of the defend- ant. Armstrong went in her, and on the voyage he stated, that, if the vessel went privateering, it would be under the Buenos- Ayrean flag ; and that he had procured a commission for the " Bolivar," from an agent of the Buenos-Ayrean Government at Washington, for $800. She captured several vessels, — Portuguese, Brazilian, and Spanish ; and certain coin in ques- tion was taken from one or more of them. The first point made in defence was, that, as the " Bolivar," when she left Baltimore and when she arrived at St. Tho- mas, was not armed, or at all prepared for war, or in a condition to commit hostilities, the verdict must be for the defendant. To which it was replied, that, if he was con- cerned in the fitting-out of the " Bolivar " as a privateer, witJi the intent that she should he employed as such in the ser- ENGLAND AND THE UNITED STATES. 33 vice of a foreign people, to commit hostilities against tlio subjects of a power at peace with the United States, the defendant was guilty of the offence charged, altliougii the equipments were not completed within the United States, and the cruise did not actually commence until men were recruited, and further equipments made, in the West Indies. The court decided, that it was not necessary that the jury should find, or believe, that the " Bolivar," when she left Baltimore and when she arrived at St. Thomas, and dur- ing the voyage, was armed, or in a condition to commit hostilities, in order to find the defendant guilty; but that, if, when she left Baltimore, the owners or equippers had no pre- sent intention of using her as a privateer, but intended to go to the West Indies to endeavor to raise funds to prepare her for a cruise, — or if, when she sailed, they had no fioSed intention to employ her as a privateer, but only a Avish so to employ her, the fulfilment of which depended upon their ability to raise funds for the purpose of arming and preparing her for war, — then the defendant was not guilty; that the offence charged consisted iwincipally in the intention with ivhich the preparations luere made; that it was necessary that it should be found to have existed before she left the United States, and must be a fixed intention, not conditional or contingent, depending on some future arrangement ; that it was a ques- tion exclusively for the jury, and the material point decisive of the question was, whether the adventure was of a commer- cial or a warlike character, — thus recognizing the distinction taken in the first-cited case of the " Santissiraa Trinidad." It was further decided, that " collectors are not authorized to detain vessels, although manifestly built for warlike pur- poses, and about to depart from the United States, unless circumstances shall render it prohahle that they are intended to be employed by the owners to commit hostilities against some foreign power at peace with the United States, — thus allowing all tlie latitude necessary for commercial purposes; " 34 NEUTRAL RELATIONS OF but tliat, if the, intention existed when she sailed, the defeat of such intention hy what might afterwards take place would not purge the offence, — it not being necessary that the intention should he carried into execution in order to constitute the offence. 27 August, 1863. ENGLAND AND THE UNITED STATES. 35 V. CONDUCT OF THE UNITED STATES AND OF ENGLAND. We have thus an entirely authoritative and well-defined exposition of the construction put upon the law of nations, in regard to the duties of the United States as a neutral nation, by its Executive Government, its Legislature, and its highest Judicial tribunal ; — that the discharge of these duties is not to be limited or influenced by any selfish interests, nor by any tenderness towards our own citizens, but that they are to be fulfilled upon the broadest principles of disinterested good faith and upon the highest principles of honor. We find, that, in the beginning of our national career, the Executive Department, proceeding only upon the law of nations and unaided by legislative enactments, under the guidance of him who more than any other is venerated as the Founder of the Republic, established that system of perfect and impar- tial neutrality and non-interference with other nations, which was the pole-star of our foreign policy, and we trust will ever continue to be so ; — that it held, that the law of nations not only prohibits the rendering of assistance by organized arma- ments to a belligerent at war with a power in friendly relations to us, but requires of the neutral government careful and Jealous caution to prevent the inception and preparation of any ; — that it caused vessels, suspected of being intended for such purposes, to be arrested and detained, and the completion of their designs to be frustrated ; — that it restored to the original (British) owners, prizes captured by armed vessels 36 NEUTRAL RELATIONS OF fitted out in ports of the United States, which had eluded its vigilance ; and held itself responsible to make indemnity for others which it could not restore. And all this, though the belligerent complaining, or claiming protection, was our recent oppressor and adversary in deadly war, and his enemy, in whose behalf these enterprises were undertaken, had been our earnest and faithful friend and ally in the struggle against him, imposing upon us the debt of the profoundest national gratitude. We find, that the Legislature, sympathizing with the Execu- tive in these lofty views of national duty, and, listening to the complaints and apprehensions of England, came promptly to its aid, and armed it with a stringent code of laws, not only for the punishment, but for the effectual 2^revention, of violations of our neutral obligations, — a code so ample and satisfactory, that, with some few amendments subsequently made, it was afterwards substantially adopted by the English Government as its own. And, finally, we find, that the Judiciary, in the same spirit, have construed and applied both the law of nations and the Neutrality Acts upon the broadest principles of good faith, in favor of all nations (the weakest as well as the strongest), and with unflinching severity upon our own citizens ; estab- lishing it as a crime against both the law of nations and our statutes, — not only to send from an American port a vessel equipped and armed as a privateer or vessel of war, immedi- ately to prey upon the commerce of a friendly belligerent, un- der a commission already on board when she sailed, or put on board on the high seas or at a neutral port, — but also a crime to send out such a vessel to the enemy of that bel- ligerent, although going under our own flag in the guise of a mercantile adventure, with no design to commit hostilities on her passage to his port, nor until after having been commis- sioned there and while sailing under his flag (provided that she left our port on a contract of sale with the enemy, or with ENGLAND AND THE UNITED STATES. 37 a fixed intention on the part of her owners so to use her) : — and not only thus ; but a crime against the statute, to send from a port in our country, to the enemy of such belligerent, a vessel unarmed, and in no preparation to commit hostilities, and with no expectation of committing any until after her arri- val in such enemy's port, and her being equipped and armed and commissioned there (if such fixed intention to have her so equipped, armed, commissioned, and used, existed at the time of her departure from the United States): — and not stopping there ; but a crime also, to commence the preparation, eqwip)ping, or fitting out of a vessel for such hostile purpose, with* the /jjecZ intent so to use her, although such prepara- tion be not completed, and no injury be inflicted upon any one ; — the fixed intent, proved, and coupled with any act done in furtherance of it, being held to taint both the vessel and her owners with the crime, and to expose these to the pains and penalties of the law, for its perpetration, and the vessel to confiscation. Such is the construction put by the Executive and Judicial departments of the Government of the United States upon the law of nations, and upon our Enlistment Act corresponding with that of England, and such are our nation's understanding and practical performance of her duties as a neutral, alike to the most powerful and to the weakest of nations. By requisi- tions upon her public ofiicers faithfully to fulfil their duties of inquiry and observation, and by such a construction of the Enlistment Act, she is not only enabled to punish breaches of her neutrality already consummated in wrongs done to a friendly nation, hut essentially to p)revent them ; to interpose, and frustrate the incipient attempt to violate her laws ; to nip it in the bud, before it shall have brought forth the bitter fruits of national jealousy, alienation, and resentment, — to end, perhaps, in the dire calamity of war. How striking the contrast between this construction of a law, and of duty under it,— enabling the Government at once 1 38 NEUTRAL RELATIONS OF to place its hand upon the vessel and her offending owners on reasonable suspicion of the intended crime against a friendly nation, and to hold them for a judicial investigation of their real purpose, and condemning the one to forfeiture, and the other to punishment, upon proof of the first act done with a fixed hostile intention against such nation, — and that con- struction, hitherto adopted by the English Government, of the same law, imposing the same duties ; by which construc- tion the obligation to arrest the vessel is confined to the time when she shall have become completely equipped and armed, and prepared for the commission of immediate hostilities, ready to slip out of port upon any false pretence, or in a dark ni'ght ; and no duty is acknowledged of interference, even then, by the voluntary action of Government officers, nor until satisfac- tory proof of the hostile character and destination of the ves- sel, in authentic form, with red-tape precision, shall have been obtained by the neutral stranger in her land (if one happens to be there having knowledge of the facts), and presented to them with a respectful craving for their interference ! How wretchedly abortive any such system must be as to any substantial prevention of the violation of neutral rights by a nation, whose rulers, and portions of whose people, are in sympathy with one of the belligerents, and in mental hostility to the other, would need no proof, even if experience had not so signally shown it. The perfect facility with which the Rebels have obtained in England mighty ships of war (openly built for their service by men in high public stations, boasting of their agency in the business), and some of them by open subscriptions by her merchants, — vessels in themselves powerful engines of war, without further arms, but entirely fitted to receive great armaments (also there made for them, and sent out, to be put on board of them, in vessels under the English flag), and with crews consisting mainly of English- men, enlisted in England (or who had agreed there to enlist), and taken in the same or similar vessels to the place of rendez- ENGLAND AND THE UNITED STATES. 39 vous ; — and the perfect impunity, not only from legal inter- ference, but from any rebuke in public opinion, (if not indeed the extensive public approbation with which all this has been done,) — will constitute a conspicuous page in history upon England's sense of neutral faith in the latter part of the nine- teenth century, and not the less as in contrast with the good faith exhibited by the United States towards her, in her hour of need, in earlier portions of it ; to say nothing of her seem- ing insensibility to the duties and honorable observance of reciprocal obligation. There can be no doubt that the Neutrality Laws of England would afford a perfectly effectual remedy against any such violations, or intended violations, of neutral relations, if they should be administered and applied in the manner in which precisely similar laws always have been and arc applied in the United States. Another very important English statute, bearing upon the subject of her ability to protect the United States from these piratical plunderers and destroyers (issuing from her ports, and furnished with their crews and means of destruction from her workshops and naval reserves), if she had the disposition to do so, is the Act of 17 and 18 Victoria, chap. 104, being the Merchants' Shipping Act, which, in sect. 103, provides as follows : — '' If any person uses the Britisli flag and assumes the British national character on board any ship owned in whole or in part by any person not entitled by law to own British ships, for the purpose of making such ship ap)pear to he a British ship, such ship shall he forfeited to her Majesty, unless such as- sumption has been made for the purpose of escaping capture by an enemy or by a foreign ship of war in exercise of some belligerent right. " And, in order that the above provisions as to forfeitures may be carried into effect, it shall be lawful for any commis- sioned officer on full pay in the military or navcd service of 40 NEUTRAL RELATIONS OF her ]\Iajesty, or any British officer of customs, or any British consular officer, to seize and detain any ship which has either wholly, or as to any share therein, become subject to forfeiture as aforesaid, and to bring her for adjudication before the High Court of Admiralty," &c., &c. And section 4 provides, that no such oflScer shall be civilly or criminally liable for any seizure made on reasonable grounds. Now, it is notorious that many, if not most, of the captures of the merchant vessels of the United States have been made by the rebel privateers under the British flag, used to decoy them witliin reach, or to prevent their attempting to escape ; and that in some, if not in numerous, cases this flag has been kept flying, not only when guns were fired, but until after the capture was completed. Yet these same privateers have entered English ports, where these facts cannot but be well known, and perhaps with the victims of their deception on board ; but, instead of being seized and brought to trial by her Majesty's military or naval ofiicers on full pay, or her vigilant officers of the customs, they have been received by them with military and naval salutes, and their officers have been feasted, and treated with the most distinguished consid- eration, — as great as could be accorded to her Majesty's most friendly allies. These vessels are still liable to forfeiture : and greater confidence might be felt in England's intention to preserve an impartial neutrality, if, instead of saluting, feasting, and complimenting those who thus abuse her flag in order to entrap the citizens of a friendly nation in treaty with her, she would require her officers to administer her laws made for their protection, instead of thus affiliating with the violators of those laws. It may be a serious question for future settle- ment, whether the implied permission of such prostitution of tlie English flag to the injury of a friendly nation, deduci- ble from the failure to enforce her own laws made to prevent it, is not in itself a just cause of complaint as a substantial ENGLAND AND Till] UNITED STATES. 41 violation of tlie impartial neutrality demanded by the law of nations. Having thus considered the law of nations, and the muni- cipal laws of England and America, touching their mutual relations as neutrals, and the history of those relations up to the commencement of this Rebellion, it remains to ex- amine the manner in which they have been regarded by England in this struggle. It is needful, however, to premise another important law of nations, which, though it has no peculiar relation to neutrality, is important in its application to this inquiry, and about which there is no controversy ; namely, that the flag of a nation extends her municipal laws and jurisdiction wherever it lawfully waves, excepting while within the territorial jurisdiction of a friendly foreign power : so that a vessel on the high seas, or anywhere not within such local jurisdiction, and all persons and things on board of it, are under the government and protection of such municipal laws (unless these laws be in terms otherwise limited), and are liable to punishment or forfeiture for any violation of them, precisely in the same manner as they would be if the vessel were in one of her harbors. 29 August, 1863. 42 NEUTRAL RELATIONS OP VI. THE " ALABAMA " AND THE " GEORGIA." In applying the principles of the law of nations and of the Enlistment Acts to the transactions upon which the questions in hand arise, it is proposed to pass by instances of unfriendly, not to say hostile, conduct on the part of English officials in the colonies (who are rarely known to exhibit themselves in any manner not believed to be acceptable to their masters at home), and to confine the discussion to the prominent cases of the gunboats the " Oreto," now the "Florida," the "290," now the "Alabama," the "Japan," now the "Georgia" or " Virginia," and others of the like kind ; of the iron-plated, tur- reted Rams in process of construction ; and of the "Alexandra," now on trial ; — all being enterprises originating and carried on in conspicuous places in England, and under the immediate eyes of her Ministers of State and of her naval and custom- house officers, and with little or no serious attempt at con- cealment. Precise knowledge of all the circumstances of each case cannot, of course, be expected, as enterprises of this charac- ter are always under greater or less degrees of falsehood and concealment : though, in the cases mentioned, it must be admitted, that no more of these was practised than some regard for decent appearances made necessary ; the enter- prises seeming to be in popular favor, and considered unob- jectionable, to say the least, by public Ministers and officers, until they were imperatively called upon to interfere. ENGLAND AND THE UNITED STATES. 43 The most conspicuous of tliese cases, and the ones that constitute the best test of the doctrine contended for in England, are those of the " Ahibama " and the " Georgia ; " and, fortunately, about tliem the facts seem to be indis- putable. The " Alabama," a very powerful war-steamer, was built by Mr. Laird, a member of the House of Commons, at Birkenhead, opposite to Liverpool, on a contract with agents or officers in the rebel service, or persons perfectly well known by him as designing her for that service. It was commonly reported (and no contradiction is known to have been made), that she was built in part, if not Avholly, by a subscription of British merchants and capitalists. After she was launched, and while fitting for sea in the port of Liverpool, the American Minister, on the 23d of June, called the attention of Earl Russell to the fact, that she was believed to be fitting out for the especial and manifest object of carrying on hostilities by sea, and was to be commanded by an insurgent agent. On the 25th, Earl Russell referred the matter to the proper department ; and, on the 1st of July, the commissioners reported, that " there loas no attempt on the part of her builders to disguise, ivhat loas most apparent, that she was intended for a vessel of war ; " '' that she had several poicder-canisters on hoard,^^ but, " as yet, neither guns nor carriages ; " that the current report was, " that she had been built by a foreign government, which was not denied by THE Messrs. Laird, but that they did not appear disposed to reply to any questions respecting the destination of the vessel after she should leave Liverpool ; " that they, the commis- sioners, had no other reliable information ; and that, having referred the matter to their solicitor, " they concurred with him in opinion, that there was not sufficient ground to warrant the detention of the vessel, or any interference on their part." (Mess. & Doc. 1862-3, pt. i. pp. 128-130.) Mr. Adams caused further evidence to be collected, and 44 NEUTRAL RELATIONS OF procured the written opinion of an eminent lawyer, one of the Queen's counsel, (in which he stated, that " it appeared difficult to make out a stronger case of infringement of the Foreign Enlistment Act, which, if not enforced on this occa- sion, is little better than a dead letter,") and transmitted them to Earl Russell, again urging the arrest of the vessel. (Mess. & Doc. 18G2-3, pt. i. pp. 149-153). But, before any effort to arrest her, she had sailed. The delay in making the arrest was attributed to a sudden malady of the Queen's Advocate, which made it necessary to call for the opinion of other persons ; and this had not been received until after the vessel had departed. (Mess. & Doc. 1862-3, pt. i. p. 163.) Earl Russell afterwards informed Mr. Adams, that orders to arrest her had been sent to Queenstown and to Nassau. She took good care, however, not to go to either of those places, and NEVER since has been there ; the reasons for which, until better known, may well be imagined. She left Liverpool witli- out any register or clearance. The want of them is conclusive evidence that she did not leave England as a British vessel, or as entitled or designing to be so accounted (however largely British merchants or capitalists might be interested in her), but as in the service of a foreign government. Off Point Linas, she received an addition to her crew of about fifty men from an English vessel, and proceeded directly to Terceira, a Portuguese island, one of the Azores. She was there joined by the British barque " Agrippina," which had brought from the Thames the principal part of her guns and stores. While these were transhipping on board the " Alabama," the Portu- guese authorities interfered to prevent such an abuse of a neutral port, but were told that the " Alabama " was merely relieving the " Agrippina," which was in danger of sinking. Soon afterwards, the English steamer "Bahama" arrived direct from Liverpool, whence she had cleared as for Nassau, with Captain Serames and fifty additional men, and the residue of the guns and stores. LTpon this, the Portuguese authorities ENGLAND AND THE UNITED STATES. 45 peremptorily ordered them all oil". They went to a remote and secluded part of the coast, where they completed the tran- shipment. Captain Semmes then took command of the " Ala- bama," ran up the rebel flag in place of the ensign of England (which till then had floated over her), read his commission, and hiunched forth on his cruise for the plunder and destruction of American commerce. The case of the " Virginia," or " Georgia," is understood to be substantially similar, except- ing that the place of rendezvous was at some agreed point ofl" the coast of France. If this be neutrality, what is war, or complicity in war? If an English-built, English-armed, and English-manned vessel of war can be thus furnished to a belligerent by English subjects, from English ports, and under the English flag, fully completed for her work of devastation, to be launched at once upon the commerce of a friendly nation in alliance with England (without the shi2) or the arms or the men having been in any other than English ports, or under any other controlling jurisdiction than that of the English flag') , and not be accounted a violation of the laws or duties of neutralit}^, what is neu- trality but a name ? or what such pretended neutrality but war in disguise? Far better would it be for the honor of England, if she intends to maintain this position, at once to abandon the pretence of neutrality, and avow herself the ally of the insurgents ; or to disclaim it as a national obligation, and abolish the Foreign Enlistment Act 'from her Statute- book. Happily, we are not constrained to believe that such a doc- trine will be eventually recognized by her judicial tribunals, or her honest and inteUigent people, however apparently sanc- tioned by those now in authority in her national councils, or by some of her ship-builders, merchants, and capitalists, ready to aid in the plunder and destruction of the commerce of a friendly people, and to endanger the peace of two great nations, if only it be for a valuable consideration. 46 NEUTRAL RELATIONS OF As above stated, it is universally conceded, that the fitting- out of vessels of war in a neutral port, for hostilities against a friendly belligerent, is, by the law of nations, a breach of neu- trality. If, then, the " Alabama" had sailed from Liverpool in the condition in which she left the coast of Terceira, there could be no question that such a violation had taken place. But it is contended, that, as the combination of the arms, am- munition, and crew, with the ship, did not take place within any port of her Majesty's kingdom or dominions, the case does not fall within the law of nations or the Foreign Enlist- ment Act ; and Chief-Baron Pollock, in pronouncing judgment in the case of the " Alexandra," volunteered the opinion, that, if the " Alabama " sailed without her armament and crew, and they were united with her elsewhere, she would not be considered as within the provision of the act. It does not appear, however, that the learned judge had knowl- edge of the facts, and of the inception of this combination on the soil of England in the manner above stated ; or that, upon knowledge of them, he would have uttered such an opinion: for on what 'principle does the case, as it stands, differ from that which would have been presented if the union had taken place in the port of Liverpool ? Every act done, from the laying of her keel to the consummation of her equip- ment as a ship of war on her war path, was commenced in England, on English soil ; loas inchoate there; and only com- pleted elsewhere ; 'and, even there, was so completed under the municipal jurisdiction of her national flag. The intention was formed on English territory ; the essential acts of building the ship, of making and preparing the arms and ammunition, of shipping them, and of engaging the crew, were cdl done there; and the transpoi'tation to the place of union was the only act remaining to be done. It seems trifling with all sound principles of jurisprudence and good faith to say, that deeds of this description were not done in England because their final object was not attained ENGLAND AND THE UNITED STATES. 47 on her soil ; though even that was attained under tlie pro- tection of her flag. If the combination had taken place at the mouth of the Mersey, or anywhere one foot within a line three miles from the English coast, the violation of neu- trality would be undeniable. But can it in principle make any difference (all the antecedents and the hostile intents and objects being the same, and all the acts designed for the end being thus in process of completion, and with no inter- vening foreign jurisdiction), whether it be made a few feet within, or a few feet without, that line ? And, if not, what real difference can the addition of a few miles make, no foreign jurisdiction intervening ? But it is not upon general principles only, however obvious, that the decision of this question must depend, nor upon any judicial judgment which England can ignore. Her greatest judge. Sir William Scott, the pre-eminent expounder of the law of nations in its application to maritime cases, whom all the world holds in respect, has determined it in the case alluded to in the second of these articles (pp. 7, 8); in which case it was decided, that a capture on the high seas of a vessel belonging to a friendly belligerent, made by the boats of her enemy from a cruiser lying within neutral territory, was illegal and void, as constituting a breach of neutrality. (^Tioee Gebroeders, 3 Robinson's Rep. 162.) In that case, four Dutch ships had been captured by the boats of a man-of-war of the enemy, lying within the territorial limits of Prussia ; and the Prussian consul claimed restitution, on a suggestion that it was a capture made within the protec- tion of the Prussian territory : he contending, that although the act of capture itself might not take place within the neu- tral territory, yet that the ship to which the capturing boats belonged was actually lying within the neutral limits ; and therefore, that, wherever the place of capture might be, the station of the ship was in itself sufficient to affect the legality of the capture. 48 NEUTRAL RELATIONS OF The opiniou of that great judge is in language so explicit and comprehensive, so remarkably pertinent, to the case under consideration, and so instructive, that it must be given in full ; although the doing so may seem to extend this article to an otherwise unreasonable length. " It is said that the ship was, in all respects, observant of the peace of the neutral territory ; that nothing was done by her, which could affect the right of territory, or from which any inconvenience could arise to the country within whose limits she was lying, inasmuch as the hostile force which she employed was applied to the captured vessel lying out of the territory. But that is a doctrine that goes a great deal too far. I am of opinion, that no use of a neutral territory for the purposes of war is to be permitted. I do not say, remote uses, such as procuring provisions and refreshments, and acts of that nature, which the law of nations universal)}^ tolerates ; but that no proximate acts of war are in any manner to be allowed to originate on neutral ground : and I cannot but think that such an act as this, that a ship should station her- self on neutral territory, and send out her boats on hostile enterprises, is an act of hostility much too immediate to be permitted. For, suppose that even a direct Jiostile use should be required to bring it within the prohibition of the law of nations : nobody will say that the very act of sending out boats to effect a capture is not itself an act directly hostile, — not complete indeed, but inchoate, and clothed with all the characters of hostility. If this could be defended, it might as well be said, that a ship lying in a neutral station might fire shot on a vessel lying out of the neutral territory. The injury, in that case, would not be consummated, nor received on neutral ground ; but no one would say that such an act would not be an hostile act, immediately commenced within the neutral territory. And what does it signify to the nature of the act, considered for the present purpose, whether I send out a cannon-shot which shall compel the submission of ENGLAND AND THE UNITED STATES. 49 a vessel lying at two miles' distance, or whether I send out a boat armed and manned to effect the very same thing at the same distance ? It is, in both cases, the direct act of the vessel lying in neutral ground. The act of hostility actually begins, in the latter case, with the launching and manning and arming the boat, that is sent out on such an errand of force. " If it were necessary, therefore, to prove that a direct and immediate act of hostility had been committed, I should be disposed to hold, that it was sufficiently made out by the facts of this case. But direct hostility appears not to be neces- sary ; for whatever has an immediate connection with it is forbidden. You cannot, without leave, car;y prisoners or booty into a neutral territory, there to be detained, because such an act is an immediate continuation of hostility. In the same manner, an act of hostility is not to take its commence- ment on neutral ground. It is not sufficient to say, it is not completed there. You are not to take any measure there that shall lead to immediate violence ; you are not to avail yourself of a station on neutral territory, making, as it were, a vantage-ground of the neutral country, — a country which is to carry itself with perfect equality between both bellige- rents, giving neither the one or the other any advantage." * Now, the fitting-out of a vessel of war, to be used in hos- tilities against another nation, is confessedly a breach of neutrality, because virtually an act of war. And if, as this case decides, " no 'proximate acts of war are in any manner to he allowed to originate on neutral ground," by what logic can it be argued, that the inception and entire preparation of cdl the elements of a ship of war on neutral ground, and the sending them forth under the neutral flag, to he united on the high seas, for the immediate prosecution of hostilities, are not proximate acts of war so originating ? And if sending • The Italics, in this Opinion, are by the Court. 7 50 NEUTRAL RELATIONS OF out boats to effect a capture beyond the territorial limits is " in itself an act directly hostile (not complete indeed, hut inchoate, and clothed with all the characters of hostility "), how- can it be maintained, that sending out a vessel entirely pre- pared to receive all her implements and means for war, and the sending of these in other vessels, to be united at a given place on the high seas, there to be employed at once in hostili- ties, are not '' inchoate acts, clothed with all the characters of hostility" ? If the vessel herself were, by means of her con- struction, enabled to commit hostilities, and should commit them on her way to the place of rendezvous, or if the vessels, each carrying a portion of her intended armament, were so to commit them, — »in pursuance of a previous intention so to do, if opportunity should occur, — each case would be one of undeniable breach of neutrality. And how can their doing so in combination on the high seas, in pursuance of such intention, be any the less a violation of it? The illustra- tion of the shot fired from a ship in a neutral station, upon a vessel lying outside, is so perfectly in point, that further illustration seems entirely superfluous. But the great doctrine of this case goes far beyond what is necessary to prove, that the finishing of these vessels was an undeniable breach of neutrality. The Court, after deciding that the transaction complained of was a direct and immediate act of hostility, if that were necessary to be proved, pro- ceeds to decide, that " direct hostility appears not to he neces- sary, for luhatever has an immediate connection with it is forbidden ; " and that " an act of hostility is not to take its com- mencement on neutral ground. It is not sufficient to say, it is not completed there. You are not to take any measure there that shall lead to immediate violence." If, then, the fitting-out of a ship of war in a neutral port is confessedly a violation of neutrality, surely the building of her, and the making and supplying of her arms and munitions of war, and the engaging of her crew there, and shipping them there, ENGLAND AND THE UNITED STATES. 51 to be taken to her, must constitute a couimencement of it. It falls, indeed, very little short of a perfect consummation of it ; and all the acts are measures intended for, and so leading to, immediate violence. If any one of these vessels had sailed from Liverpool fully armed and equipped, but with no intention to commit hostilities until after reaching the longitude and latitude of the appointed place of rendez- vous on the high seas, such postponement of the intention could not relievo her from the charge of a breach of neu- trality when she sailed. And what difference can it make, whether she arrived there thus equipped, or under an ar- rangement to receive her equipment, also made in England, and sent out in English vessels, to join her there, and there to commence hostilities ? The intent, the purpose, and the consequences are precisely the same in both cases. The Court, in pronouncing the opinion in that case, pro- ceeded to say, " You are not to avail yourself of a station on neutral territory, making, as it ivere, a vantage-ground of the neutral country, — a country which is to carry itself with perfect equality between both belligerents, giving neither the one or the other any advantage." If the Ministers and judicial tribunals of England were under the inspiration of such doctrines as these, we should have less cause for present complaint or future apprehension. 3 September, 1863. 52 NEUTRAL RELATIONS OP VII. THE "ALABAMA," THE " GEORGfIA," AND THE "FLORIDA." The cases of the " Alabama " and the " Georgia " have thus far been considered by themselves, because of the peculiar circumstances bj which they are distinguished (as being completely equipped ships of war while under English juris- diction), and which, independently of the principles and arguments applicable to the cases of the " Florida " and the "Alexandra," constitute them, as is believed, palpable breaches of neutrality, not only according to American decis- ions, but to a leading one in England, and to the most obvious application of familiar rules of the law of nations. It is to be borne in mind, however, that they fall still more clearly within the principles and rules (now to be considered) applicable to the case of the " Florida," the facts of which seem, upon first impression, of a less decisive character ; and that the same reasoning which leads to the conviction, that the latter presents an instance of breach of neutrality, would, a fortiori, prove the former to do so. The facts about the " Florida " are somewhat obscure, she being the first privateer furnished to the rebels, and more concealment having been practised concerning her than seems to have been thought necessary in subsequent similar under- takings. Enough are known, however, to be the subject of a clear application of the law of nations and of the Foreign Enlistment Act, upon the principles and rules of law which are recognized in the courts of the United States, and the ENGLAND AND TIIK UNITED STATES. 53 benefit of which in former times, when England was tlie l^el- ligerent and America tlie neutral, the British Government claimed of the United States. This vessel, the " Florida," was built in Liverpool as a gunboat, or vessel of war, for the rebel service, pierced for six guns, and completely fitted in that port, as a vessel of war, for the reception of her armament, munitions, and crew, under the name of the " Oreto." She lay there for some time, her character and destination as a rebel privateer being matters of public notoriety; when, the American Minis- ter having called attention to her as a vessel designed for hostilities against the United States, an inquiry was ordered, which terminated, however, in a report which indicates it to have been a miserable sham. She cleared for Palermo and Jamaica with a crew of fifty-two or fifty four men, but sailed directly to Nassau, an English colonial port in the West Indies. Whether she had taken in her armament and cargo on the English coast before she arrived at Nassau, or received them there, is uncertain, the evidence being conflicting. The col- lector at Liverpool represented, in his written answer to the inquiry ordered, that it was reported that she was to receive her armament at Nassau, where it had been sent in another vessel ; thus indicating the general, not to say official, knowl- edge of her character and destination. She arrived at Nassau, and was temporarily arrested ; but soon sailed with her armament and a cargo of munitions of war for Mobile ; which port she succeeded in entering, and from which she afterwards emerged upon the career of devas- tation in which she has been so signally successful. When she changed her name, or the commander received or read his commission on board, does not appear ; nor is the time of either material, as will presently appear. The main facts in this case, material for immediate consid- eration, are, that she was built in England as a vessel of war for the rebel service, and sailed from the coast of England, or 54 NEUTRAL RELATIONS OP from one of her colonial ports, armed and wholly or in part manned as a privateer, for a rebel port ; whence, after having landed there a cargo of munitions of war, she sailed on her cruise. The prominent facts in each of the cases of the "Alabama," the " Georgia," and the " Florida," appear to bring it so clearly within the letter and the spirit of the Foreign Enlist- ment Act and the law of nations, as a gross breach of neu- trality, that it seems superfluous to adduce further argument in illustration of this. If the persons who built these vessels, or procured them to be built, in England, and to be fitted in all points for sea as ships of war (excepting their armaments and crews), in- tending them for the rebel service ; who procured their armaments and munitions of war there, and engaged their crews there, in whole or in part, with the above intent ; and who then united them on the high seas, while still under the English flag, to launch instantly upon their hostile expedi- tions, — were not persons who, within any part of her Majes- ty's dominions, " equipped, furnished, fitted out, or armed," li QY procured to be equipped, furnished, fitted out, or armed," " or aided, or assisted, or were concerned in, the equipping, furnishing, fitting out, or arming, of any ship or vessel, with the intent or in order that sucli ship or vessel should be em- ployed in the service " of a foreign power, " with intent to cruise and commit hostilities " against any other power, with which " her Majesty was not then at war," — then it would seem difiicult, if not impossible, to frame any description that would embrace them, and the Statute would seem little bet- ter than a worthless, empty pretence. It is worthy of notice, that, in the American Statute, the words are, '' fitted out and armed," and " fitting out and arming," &c. ; and it is reasonable to suppose, that the substitution of the word " or " for the word '' and " in this passage in the English statute, which was enacted subse- ENGLAND AND THE UNITED STATES. 55 qnently to that of the United States, was intended to obviate any construction requiring both fitting out and arming. As before remarked, in the Court of the United States it has been emphatically decided, not only that the vessel need not be completed, or armed, or prepared for war, within the territory of the United States, in order to constitute an in- fraction of the Foreign Enlistment Act, but that, if she sailed ivitJwut being armed, or at all prepared for loar, and in no condition to commit hostilities while on her way to her ])ort of destination, the owners or equippers intending, when she sailed, that she should thereafter be employed as a privateer in the service of a foreign people to commit hostilities against the subjects qf a power at peace with the United States, it constituted a violation of the statute. Under this decision, it is manifest that any one of the three vessels above named would be adjudged guilty of such a violation at the moment of sailing, even though she should not have a gun or any fighting crew on board, nor intend nor expect to procure any until after arrival at a Confederate port. But we are not obliged to rest on American decisions only; for (although none upon this point appear to have been made in the courts of England until the recent one in the case of the " Alexandra," from which an appeal has been taken, and which, therefore, is of no present authority) the political history of England upon the subject (referred to in the Third Number of this series of papers), and the recent conduct and language of her Ministers, seem to show a simi- larity of construction of the law and of neutral duties under the Foreign Enlistment Act. And, as these questions pertain quite as much to the domain of politics as to that of judicial decision, the practice of the Government may well be ac- counted a satisfactory exponent of the doctrine by which they are to be solved, and especially so where such practice has been coincident in the two nations between which the questions arise. 56 NEUTRAL RELATIONS OF Now, from this history we learn, that, as far back as the years 1793-94, England invoked the interposition of our National Government to prevent the fitting-out of privateers for the service of France in the war then pending between them ; that our Foreign Enlistment Act was passed in con- sequence of that application, in order to enable our Govern- ment faithfully to fulfil our neutral obligations (which Act, subsequently amended, was afterwards adopted almost verba- tim by England, showing an entire similarity in the views of the two Governments upon the subject) ; and that England, in 1854—55, wlie^i at war with Russia, claimed of the Govern- ment of the United States the application of her Enlistment Act in accordance with the construction put upon it by the courts of the United States, and this to a merchant vessel, not built for war, nor armed, nor equipped, nor in process of being ftted out, as one, any further than being supposed to have taken a few guns into her hold ; thus showing, that, up to that period, England understood neutral obligations and duties under the Foreign Enlistment Act precisely as they had been always understood and practised in America. And, in these very cases of the " Florida " and " Alabama," we find that the English Government, acting under the ad- vice of its professional counsel, gave orders for the arrest of the one in Nassau, and the other in Liverpool (though too late to be of service) ; thus proving, that it is not, in the opinion of the law-officers of the Crown, essential that the vessel should be fitted out, equipped, and armed before leav- ing port, in order to bring her within the provisions of the act. Now, upon these facts and these principles of law, we maintain, that each of the vessels was, and, ever since she left England, has continued to be, and now is, subject to seizure and confiscation for violation of the law of nations and of the English Foreign Enlistment Act, in every port within her territorial jurisdiction in which such vessel has been, or ENGLAND AND THE UNITED STATES. 57 now is, or in which she may arrive, unless exempted by the limitation contained in the 10th section. It is important to bear in mind, that, in order to prove a vessel subject to forfeiture, it is not necessary to convict the builder, or the party fitting out and arming her, of any viola- tion of the Act ; for, if each of the parties thus concerned could be shoAvn to be innocent of intending her use in hostilities against the friendly belligerent, and to have furnished or executed his portion of the work as a fair mercantile trans- action, untainted with any such design, — nevertheless, if the parties for whom the work was done or the materials were furnished, or if those who owned her when she was about to sail from England, had such intention, the crime attached to the vessel, and she became subject to forfeiture as if herself guilty of it. If, therefore, it could be shown that Laird, the builder of the " Alabama," and Miller and Sons, the builders of the " Florida," and Fawcett and Co., the engineers and iron-found- ers who furnished their engines and guns, were innocent of any intention to have these vessels used in hostilities against the United States, the use actually made of them would con- clusively prove that the owners for whom they were built and armed had that design, and it would thus render the vessels subject to forfeiture at the time of sailing, although the real owners might never be discovered. But it may perhaps be contended, that, if these vessels were guilty of breaches of neutrality when starting upon their respective cruises, which might have subjected them to forfeiture if seized at that time, yet the offences Avere deposited at the end of those first cruises ; and, conse- quently, that they ever since have been, and are now, exempted from any such liability. To this, however, it seems a satisfactory answer to say, that, in the cases of the " Alabama " and the '' Georgia," wliich have never entered any rebel port, nor been within any terri- tory under the rebel jurisdiction, the cruises upon which they 58 NEUTRAL RELATIONS OF orio-inally started have never ended or been so terminated. All their entries into neutral ports have been for brief and temporary purposes, for supplies and refreshment, to enable them to continue their cruises; and they have never been in any port with any design of such termination. If insur- ance had been effected (as probably was done by some of the British owners) on either vessel when she sailed, " during her cruise,''^ or '' during the cruise on which she is about to sail," it is obvious that such temporary resorts to neutral ports for refreshment or repairs could not be accounted any termination of it. In the case of the " Florida," this point, however, might be made with more appearance of reason by claiming that her first voyage had terminated at Mobile, where, as is supposed, her name was changed, and her character as a privateer openly avowed. But, as she was tainted with the intention of crime when she sailed from Liverpool and Nassau, and went to Mobile, not for the purpose of terminating that oifence, but merely to land her cargo, and to acquire more effectual means for its perpetration, such temporary delay, or rather interposition of a port, for obtaining greater effi- ciency, ought not in principle to be accounted any depositing of the original defence. Happily this point is not left in doubt, if the decisions of the Supreme Court of the United States upon this branch of national law are entitled to the respect and confidence professed for them abroad as well as at home. It was the main point in the case of the " Gran Para " (7 Wheat. Rep. 471) above cited (No. IV., pp. 29-31, to which the reader is referred), in which the facts were more favorable for such a defence than those of the " Florida ; " and in which the Court, in passing judgment upon it, used the indignant language before quoted, that the doctrine, that the vessel could be thus '' purified from every taint contracted at the place where all her real force and capacity for annoyance were acquired, would . ENGLAND AND THE UNITED STATES. 59 indeed be a fraudulent neutrality, disgraceful to our own Government, and of which no nation luould he the dupe." This case is also directly decisive of the point, if should it be made, as above suggested, in behalf of the "Alabama " and the " Georgia," and if it be thought deserving of further con- sideration than has already been given to it. If, then, those vessels are privateers only, it is not per- ceived why the English Government has not a perfect right to seize and confiscate them whenever they come within her jurisdiction. What may be her obligations to do so, will presently be considered. 5 September, 1863. GO NEUTRAL RELATIONS OP VIII. England's position in relation to the rebel privateers, or ships of war, and the suppression of their depre- DATIONS. But it may be contended, that if these vessels, when priva- teers only, are thus subject to seizure and confiscation in any British port in which they may be or arrive, yet, if any one of them is sailing under a commission from the rebel authori- ties as a public or national ship, she is exempt, the insur- gents having been acknowledged as a national belligerent. It is true, that, in the intercourse of nations, a distinction exists between public and private ships of war, in regard to the consideration to be given to them by foreign governments when within their respective local jurisdictions. This point, also, was raised and passed upon by the Court in the prolific case of the " Santissima Trinidad," among the many other points not material for the decision of the case. The capturing ves- sel had been sent out to Buenos Ayres for sale, as a mercan- tile adventure, and purchased of the original vendees by the Brazilian Government. But no bill of sale to the latter was produced ; and the question raised, principally upon that de- fect in the evidence, was, whether, notwithstanding this defect of proof, her character as a public ship was established by the production of her commission as one. The Court ruled that it was so ; — " that, in general, the commission of a public ship, signed by the proper authorities of the nation to which she belongs, is complete proof of her national character ; " — ENGLAND AND THE UNITED STATES. Gl that, " SO far at least as foreij^n courts are concerned, it imports absolute verity, and the title is not examinable;" — and that "the property must be taken to be duly acquired, and cannot be controverted," this being " a rule founded in public con- venience and policy." And, upon the facts in that case, the rule, and the application of it, seem alike reasonable, — it being one in which no question existed, between the neutral and the belligerent, as to the lawfulness of the title by reason of any vio. lotion of the laws of the neutral in obtaining it, but only a ques- tion between the belligerent claimant and the captor upon the technical form of proof. But it surely would be carrying this doctrine altogether too far, to maintain that it binds the neu- tral nation to respect a title because so vouched, when it was obtained by the captor in gross violation of her own laws, or in defiance of her obligations to the other belligerent, expos- ing her to complaint or reclamation ; and still more so, when such violation and exposure were not by a merely temporary intrusion upon her territory, and when not the title only, but the whole ship, armament, and crew, were procured by an un- lawful appropriation of her military resources and an illegal tampering with her own subjects. If the vessel, for which sanctity of title as a public ship was thus claimed, had been one belonging to the neutral, forcibly taken on the high seas, to be converted into such foreign public ship under a commis, sion in the hands of the captor, and had afterwards arrived in one of her ports, whether by choice or necessity, it would seem absurd to contend that the neutral was precluded from reclaiming it because the commission was conclusive proof that the title had been lawfully obtained. And it is not per- ceived why the same reasons do not apply with equal force to denial of the right of a neutral to confiscate a vessel, to which the belligerent, claiming it, could have no title but tliat acquired by contravention, and in fraud, of her own laws and of her obligations to other parties, — the breach of which laws attached to the vessel the ri^-ht of confiscation from her 62 NEUTRAL RELATIONS OF birth. Surely, to carry this doctrine of the inviolability of a commission, as proof of title, to such an extent, would be to convert a rule, founded in the comity of nations, upon the basis of mutual regard, and of the understood reciprocal ob- servance of their respective duties and obligations, into a shield for the violation of those duties, and for the perpetra- tion of offences derogatory alike to the dignity and the safety of the neutral thus called upon to obey it. This reasoning, if correct, also disposes of another objec- tion which might occur, founded on the rule, that a public ship is exempted from the local jurisdiction of other nations ; for if she is not to be regarded as one, so as to exempt the alleged title to her from investigation, such question must be tried in the local courts of the neutral. But if this doctrine be not maintainable to the extent of giving the judicial tribunals of a neutral nation jurisdiction over a national ship of war, or one entitled to similar privi- leges, under such circumstances, nevertheless, as this exemp- tion from the local jurisdiction of any sovereign power is founded wholly on the implied consent of such power to such exemption, it may be revoked or rescinded for good cause at any time ; and surely no better cause could be assigned or imagined for its revocation, than that the ships in question had been obtained in violation, not only of the rights and of the municipal laws of such power, and in derogation of her majesty, and to the endangerment of her peace with another nation, but were also persistently guilty of gross and defiant breaches of the law of nations.* If it be asserted, that the proper remedy of the neutral in such a case is a declaration of war against the offending belligerent, and the capture of the vessel as prize, the an- swer is, that, although the neutral might have a clear right to take that course, she is not bound to do so, and expose * The Schooner " Exchange" v. M'Faddon and others, 7 Cranch's Rep. 116. ENGLAND AND THE UNITED STATES. G3 herself to the evils of war, if her interest demands, or she prefers, the quiet assertion of her rights, and the vindication of her neutral obligations, in the manner suggested. Es- pecially may she with propriety and honor do this where she is the stronger power, and pan thus vindicate her dignity and her sense of duty without such exposure; — and this is the precise position of England in her relations to the parties in this war. The question is not unfrequently raised, whether, under the peculiar circumstances, these rebel ships can be properly considered as regularly commissioned, and so entitled to be recognized as public ships or as privateers, or whether they are to be deemed merely private sea-rovers, with no claim to recognition as regularly commissioned ships of war ; — in which case, they would fall within the British naval regula- tions, established by the King in Council, and published in 1826, which provide, that, " if any ship or vessel shall be taken, acting as a ship of war or privateer, without having a commission duly authorizir^g her to do so, her crew shall be considered as pirates, and treated accordingly." That insurgents, shut up within the territories they have usurped ; — who have no means within themselves of con- structing and equipping a single ship of war ; — every one of whose ports is strictly blockaded ; — whose only means of having such a ship upon the high seas is by procuring her to be built, equipped, and manned by the subjects of a neu- tral power; — and whose only opportunity of investing her with the appearance of lawful authority is by a commission sent to her abroad through some agent skulking out of one of her remote harbors or creeks in the dead of night, or under the cover of a storm, — that such insurgents should thus be able to have a fleet of war vessels, not one of which has ever been within their territorial jurisdiction, and should have them recognized as national ships by the neutral gov- ernment whose subjects created, armed, and manned them ; 64 NEUTRAL EELATIONS OP whose recognition has saved them, if any thing has, from being accounted freebooters and pirates ; and whose commer- cial interests their raids of devastation upon the commerce of a friendly nation tend very greatly to promote, — all this con- stitutes certainly an anomaly in the history of the law of nations, of purely English invention in the latter part of the nineteenth century, and of which England is entitled to the sole credit. Whether, under the law of nations, a valid title can be thus acquired, or the character of a national or regularly commis- sioned private-armed ship can be thus impressed upon a ship so circumstanced, are questions, which, it is believed, remain to be judicially determined. But, whatever may be the decis- ion, it must be allowed, that, diplomatically considered, such a state of facts has, upon first impression, the aspect of a very sinister neutrality; and it may not be too wide a departure from charity to suggest the apprehension, that — if the tables were turned, and England were at war with the self-styled Confed- erate States, and the citizens of the United States were thus furnishing privateers and ships of war to prey upon her com- merce — the masters and crews, if captured, and standing before an English court, might find themselves uncomfortably near to a personal application of the above-mentioned British naval regulations. But there is another and broader view, in which this matter is to be considered, and which, if not misapprehended, pre- sents the honor and good faith of England towards the United States in a very questionable shape. If the positions above taken be correct, — if these vessels would be liable to seizure and confiscation for violation of the Foreign Enlistment Act of England, unless protected by their commissions as public ships or privateers ; and if they are protected by such commissions, — then it follows, that their immunity from seizure and confiscation is derived wholly from, and is dependent upon, her recognition of the insur- gents as belligerents. I ENGLAND AND THE UNITED STATES. (j5 Now, that recognition was not in the nature of a treaty or compact, express or implied, which neither party coukl re- voke without the consent of the other, and the continuance of which was stipulated for by particular terms, the violation of which terms alone could justify a departure from it. On the contrary, it was a mere act of grace and favor, which England was under no obligation to grant, and has the right to revoke at any time for good cause ; and it was, in its nature, conditional upon the observance by the rebels of the laws of nations, and of good faith towards herself. And, since the rebels had at- tempted to withdraw from their allegiance to the United States as integral portions of that nation, without announcing any intention to change the obligations imposed upon them by the law of nations under which they had previously lived, this recognition must have been upon the implied condition of their continued observance of those obligations. It cannot, it is supposed, be doubted, that a mere recog- nition of insurgents as belligerents by a neutral power is revocable at any time before the acknowledgment of them as an independent nation, upon conviction that their rebellion must be a fruitless struggle, and that the interests of the neutral and of other nations require their return to their allegiance ; and, if this be so, it seems equally clear, that such a recognition must be revocable upon proof that the rebels are violating the law of nations, or the laws and neutral rights of the power by whom they were so recognized, in such a manner as to endanger her peace, or impair her credit and respectability, as not faithfully observant of her neutral obligations. That the rebels have thus grossly violated the laws and neutral rights of England, and exposed her to just complaints on the part of the United States (and it may be to just claims for indemnity), as well as to discredit in the eyes of other nations, in the obtaining of these vessels and their crews as above shown, is evident from facts not suscep- tible of denial, and is conceded by her Government in the 9 QQ NEUTRAL RELATIONS OF orders given to arrest them. Upon this ground, then, the revocation of the recognition would not only be plainly justifiable, and give no reasonable cause of complaint to the insurgents, but seems to be demanded by a proper sense of self-respect, in the vindication of her own laws and of her national majesty, and the maintenance of an honorable neutral position toward the United States. ' There is, however, as is believed, another and much more grave reason for the revocation of this recognition by Eng- land, which is demanded alike by regard for her honor, her professions of loyalty to the law of nations, her posture as at the head of the naval powers of the world, and the false posi- tion in which she is placed in her relations to the United States by the crimes of the insurgents. As above stated, that recognition must have been upon the implied condition, that the rebels, as an acknowledged belli- gerent, would conform to the law of nations as generally understood, and as avowed and acted upon by England and by the United States. By one of those laws, now almost uni- versally insisted upon by all nations, and entirely settled by statute and judicial decision in England and in the United States, neutral goods on board an enemy's vessel are exempt from confiscation, and, although the vessel may be con- demned, the cargo is to be restored to the neutral owner ; and conversely, although an enemy's goods on board of a neutral vessel may be condemned as good prize, the vessel is not liable to confiscation, but must be restored.* A cargo, therefore, belonging to English subjects on board of an American ship captured by the rebels, is not subject to confiscation as prize of war ; but the ownership remains unchanged, and entitled to protection in the same manner as if it were in a neutral or English ship, excepting only the * 1 Kent's Com. pp. 128-131; Wheaton's Elements of International Law, part 4, ch. 3, ^ 21, 22. ENGLAND AND THE UNITED STATES. 07 losses and inconveniences necessarily to be incurred in taking the vessel into port for adjudication ; and any voluntary appropriation or destruction of such property (with the knowledge that it is neutral), not made necessary by the capture of the vessel, or by the means proper for subjecting her to adjudication, must therefore, upon principle, be ac- counted piracy, and punishable as such, in the same manner as if committed on board of a neutral or British ship. Another of the laws of nations, believed to be now gener- ally recognized and acted upon, and certainly established as between England and the United States (as appears by their statutes and judicial decisions), is, that the ownership of enemy's property captured at sea is not changed, and does not vest in the captor, by the mere seizure, but remains in abeyance until sentence of condemnation, as lawful prize, by a court of competent jurisdiction ; which court, with a few occasional exceptions, under treaties or arrangements with allies, can only be lawfully held in the country of the captors; — it being considered essential to common security on the highway of nations, that this shield should be inter- posed to protect travellers upon it from the unlicensed free- booting, and miscellaneous open and secret plunder, which would otherwise ensue under pretences of hostile capture, and of which the rebels have already furnished notorious examples. This law is thus laid down by Chancellor Kent, for whom English lawyers and jurists are accustomed to profess high respect : " But, by the modern usage of nations, neither the twenty-four hours' possession, nor the bringing of the prize infra presidia, is sufficient to change the property in the case of a maritime capture." " Until the capture becomes invested with the character of prize by a sentence of condemnation, the right of property is in abeyance, or in a state of legal sequestration. It cannot be alienated or disposed of ; but the possession of it by the government of the captor is a trust for G8 NEUTRAL RELATIONS OF the benefit of those who may be ultimately entitled. This salutary rule, and one so necessary to check irregular conduct and individual outrage, has been long established in the Eng- lish Admiralty ; and it is noiv everywhere recognized as the law and practice of nations" (1 Kent's Com. 100, 102). In the case of Jecker v. Montgomery, (13 Howard's Rep. 516,) the Supreme Court of the United States, speaking of the Act of Congress which requires captured vessels to be brought within the jurisdiction of a prize-court in the United States, say : " This act merely enforces the performance of a duty imposed upon the captor by the law of nations, ivhich, in all civilized countries, secures to the captured a trial in a court of competent jurisdiction before he can finally he deprived of his property y It is not unworthy of remark, that England was herself mainly instrumental in the introduction of this hu- mane modification of the ancient law, which held that the capture vested an immediate title. The appropriation or destruction, therefore, of private property belonging even to an enemy, captured at sea, with- out previous adjudication and condemnation as prize, is in utter defiance and gross violation of one of the most salutary and important of the laws of nations, established for their mutual security on their great highway ; and is a wrong, which every civilized nation is bound, not only to resent, hut, if possible, to prevent. Now, it is notorious to the whole world, that the rebels are carrying on this parricidal war in utter and avowed defiance of this law ; — that, having no ports into which they can take vessels captured by them for adjudication, they, after plunder- ing from their cargoes all that can be taken on board of their own ships, immediately burn or sink the captured vessels with the remainder ; — that this is done by the orders and under an arrangement of the Rebel Government, by which it has agreed to pay to the captors one-half part of the value of all vessels and cargoes, belonging to citizens of the United ENGLAND AND THE UNITED STATES. G9 States, thus destroyed ; — and that such destruction has, in repeated instances, involved that of neutral property. It does, indeed, seem marvellous, that this gross and public defiance of one of the most sacred laws of war has been suf- fered to pass unchallenged, and without protestation, or attempt at suppression, by the self-styled Mistress of the Sea, whose assumption of that position might reasonably seem to demand of her some watch and ward over the observance of its laws, and especially of one, of which she was the principal author. And this, while she knows, that from her own ports and by her own citizens were furnished all the moans and opportunities for these outrages, and that they arc perpe- trated principally by her own subjects, and often under her own flag ; perpetrated, too, not in behalf of honest men struggling to free themselves from tyranny or oppression, but by rebels seeking the subversion of the freest govern- ment the sun ever shone upon (of which they had themselves almost entire political control), in order to substitute a des- potism founded on chattel-slavery. Above all, it is marvel- lous, that, when a word from her of revocation, or threatened revocation, of her recognition of them as a lawful belligerent, would instantly suppress these atrocities, or render their future perpetration impossible, — instead of uttering that word, she receives the perpetrators with open arms into her ports, with national salutes and ofiicial feastings, and with all the mani- festations of sympathy with their cause, and their brigandism, which could be bestowed upon the Bayards and Sidneys in a noble warfare for the dearest of human rights. That the rebel leaders should have the audacity to proclaim, and act upon, such a system of warfare (tlieir whole career in the Rebellion having been one of reckless violation of all laws, human and divine), is not to be wondered at ; but that other nations should acquiesce in it, can only be accounted for by sympathy with them, in seeming forgetfulness that ere long the poisoned chalice may be presented to their own lips. In 70 NEUTRAL RELATIONS OP future wars of England or France, whose sympathies with the insurgents render them conspicuous as apparently justify- ing their conduct, what right will they have to deny, that merchant vessels and cargoes, captured at sea by the enemy, may be lawfully burned or destroyed at sea, without previous condemnation as lawful prizes, — after their acquiescence in this mode of warfare (if not implied approval of it) by the rebels ? But a still graver question concerning England's position here presents itself Although this destruction of American ships and cargoes may not be accounted such a violation of the law of nations as to subject the perpetrators to punish- ment as guilty of piracy, it seems, nevertheless, quite clear, that the like needless destruction of British vessels or car- goes, under pretence of hostility to the United States, must be so accounted. That such destruction has been perpetrated is univer- sally known. In several instances, valuable cargoes, or parts of cargoes, belonging to English subjects, have been burned, with the vessels containing them, because of the in- ability of the captors to remove them into their own ships, and their determination to destroy all American shipping which should fall in their way. A notable instance is within the immediate knowledge of the people of this city ; being the case of the ship '' Nora," belonging to Messrs. George B. Upton and Son, eminent merchants of Boston, which was burned at sea by the rebel commander and crew of the '' Alabama," with a valuable cargo belonging exclusively to British subjects, and regularly documented as such, and about the ownership of which there could be no reasonable pretence of doubt. Now, to regard this transaction in its true light, we have but to ask. What would have been the course of the British Government, if the captured ship had belonged to a subject of the Rebel Government, and Capt. Wilkes, or the commander of any United-States cruiser capturing her, had ENGLAND AND THE UNITED STATES. • 71 thus burned both ship and cargo on the high seas, for the sake of destroying a rebel ship? Let the conduct of that govern- ment in the case of the " Trent " give answer. No one can doubt, that instantly, upon reception of the news, every availa- ble ship-of-war would have been despatched in search of the " pirate " (as such he would have been denounced); and fleets and armies would have been instantly sent to Canada and the American coast, ready to enter upon instant hostilities, unless ample reparation should be at once made by the Government of the United States, with a humiliating apology that should render further similar outrage impossible. But, strange to say, we hear nothing of the sort in these instances of equal wrong to the subjects of England, and equal injury and insult to her national majesty. The English gazettes, so loud in denunciation of the United States on the most trivial occasions, are, so far as is known here, quite silent about them, excepting, perhaps, in a passing notice of the events of the day. No Ministerial or Parliamentary pa- triotism or zeal seems to have been aroused, as was the case in an imagined, but, as it proved, wholly unintended, wrong by the United States ; and no reclamation has been made, or apology demanded, or security required against future perpe- tration of similar outrages, so far as the American public is informed. How is all this to be accounted for ? What explanation can be given ? Will it be suggested, that the Rebel Govern- ment has compensated the owners of these cargoes, and so quieted their complaints, and rendered interference on the part of the Government needless, so far as money is con- cerned ? Supposing that to be so (though of this we have no e'vidence), is this all of England's duty in such a matter? Is the recovery of money all that she owes to her own dignity and self-respect, and all that she owes to the world? Is she to condone piracy committed upon her citizens in gross viola- tion of a sacred law of nations, which, if observed, would 72 NEUTRAL RELATIONS OF have prevented it, and in gross disregard of her dignity and defiance of her majesty as a nation ; — or is she to suffer it to be condoned, that the pirates may go unscathed, and unshorn of their power to depredate upon the commerce of a friendly nation ? And will she still welcome them to her ports with open arms and national honors, and proffer to them all the facilities for their warfare against a friend, which she could extend to the most honored and favored of allies, engaged in the best cause ? Alas for the pride and glory of Old Eng- land, the land of our fathers, if this be so ! and alas for the sanctity and purity of national law, if this be the manner of its observance and enforcement by the Mistress of the Seas!* Having thus considered the power and opportunities which England has of putting an end to the rebel depredations upon American commerce by the use of means of which the rebels could have no reasonable ground of complaint, because founded on their own crimes against her municipal laws and the law of nations, we propose, in the next Number, to consider what may be her obligations so to use them. * If the owners of the British cargoes thus destroyed have been compensated, as is supposed, out of the proceeds of the Confederate loan, it may excite a smile to reflect with what skill the traitor financiers succeed in filching money out of the pock- ets of one class of her Majesty's sj'mpathizing subjects, by worthless paper, to repay their plunderings of the pi'operty of another class. 9 September, 1863. ENGLAND AND THE UNITED STATER. 73 IX. ENGLAND'S OBLIGATIONS TO SUPPRESS THE DEPREDATIONS OF THE REBEL PRIVATEERS, AND SHIPS OF WAR. It having been thus shown (as is believed), that England has the right and the power to suppress the depredations of the rebel privateers, and ships of war, upon the commerce of* the United States, by seizure and confiscation of them, as subject to forfeiture or condemnation for violations of her Foreign Enlistment Act, and of her neutrality, by the manner in which they have been obtained, armed, and manned, and of her Shipping Act, by the abuse of her flag, and for their piracies upon her own subjects, and other violations of the law of nations ; — it having also been shown, that she may justly revoke her recognition of the insurgents as belligerents, because of such infractions of those Acts, and of her neu- trality in reference to the United States, and the consequent endangerment of her peaceful relations with that power ; because of their constant, defiant violation of one of the most important of the laws of nations, of which England herself was the chief author ; and because of their repeated piracies upon her own subjects, against Avhich that law Avas intended as a protection, and which, if observed, it would effectually prevent ; — and it having been shown, moreover, that by this revocation the rebels would be deprived of their chief, if not of all their essential, resources for naval Avarfaro, and of im- munity of the crews of their vessels from punishment under 10 74 NEUTRAL RELATIONS OP the statutes of the United States and the law of nations, — it remains now to inquire, What are her obhgations to exercise these powers? It is indeed very strenuously maintained by recent writers in England, in their zeal to vindicate her conduct and reputa- tion in this war, that any violations of neutrality are offences only against the neutral, of which the belligerent against whom they are committed has no right of complaint ; and that the Foreign Enlistment Act is a purely municipal regu- lation, with the infringement of which such belligerent has no concern, and the enforcement of which he has no right to require. And such, at one period, seemed to be the doctrine of the immediate Goverinnent of England, as avowed in Par- liament and by the English press. It is undoubtedly true, that the violation of the neutrality of a nation is an offence against her alone, and that the in- jured belligerent has no cause of complaint merely because such a violation has taken place : for he clearly has none against his enemy, who, as to him, may rightfully attack him wherever he may be reached ; nor any against the neutral na- tion merely because her rights have been violated, for that may be entirely without her fault or her ability to prevent it. And it is equally true, that Foreign Enlistment Acts are merely municipal regulations, made for the purpose of enabling nations having them to prevent or to punish violations of their own neutrality only ; mere instruments or means of preserv- ing it, which foreign nations cannot take in hand for their own protection, and of violations of the provisions of which, merely as such, they have no right to complain. But, notwithstanding all the learning and ability employed in maintaining these theses, they are, for the most part, mere abstractions in the practical application of the rules of duty to the faithful observance of neutral oblis-ations. A neutral nation has not only rights which may be violated by belligerents, and the violation of which is to her as a mere ENGLAND AND THE UNITED STATES. 75 persoual wrDng, but sliu is also under obligations towards each of the belHgcrents, which it is her duty to fulfih The preservation of strict and iiui^artial neutrality is a fundamental duty universally acknowledged ; and no one, it is presumed, will deny that it forbids the neutral to permit or suffer military or naval expeditions or armaments to be fitted out from its territory by its own subjects, or by one belligerent to be used against the other, or any other viola- tion of its neutrality by Avhich either of them may be injured, and which it can reasonably prevent. Such permission or sufferance is virtual connivance with the enemy, and converts the professing neutral into his ally, whom the offended bellige- rent may justly treat as such. Every duty involves the obligation to use all reasonable means, within the power of the obliged, to perform it ; and in so far, therefore, as the possession of one of these Foreign Enlistment Acts gives to the neutral nation the means of pre- serving a faithful neutrality, just so far she is bound to use them ; and a voluntary omission to do so is a neglect of, or departure from, that duty, and a cornesponding failure to ob- serve her neutral obligations ; and, although the belligerent, injured by such omission, may not have any cause to complain of the violation of the Act as an offence against himself, he may reasonably and justly complain that the permission to violate it, implied by such failure to enforce it, was a departure from the observance of the obligations of the neutral, which he had a right to require. It is obvious that the duty to preserve a faithful neutrality must be exactly commensurate with the ability to do so ; that a weak nation may be excusable for not preventing or not punishing breaches of it, when the failure to do so by a stronger one, with greater facilities, would be highly censurable, and would constitute just cause of complaint, and even of war, on the part of the belligerent injured. It is equally clear, that these means of observing a faithful neu- 76 NEUTRAL RELATIONS OP trality must be correspondent also with the civilization, the military and naval power, and the resources in jurisprudence, of the neutral nation, and that these are to be accounted among her facilities for the fulfilment of this duty ; and, further, that she would be criminally neglectful of such duty in not provid- ing the reasonable means which they place within her reach ; and, finally, that some such municipal regulations are essential, if not the only, means for the protection of the rights of the neu- tral nation from secret or open violation, and for enabling her faithfully to fulfil her obligations to other nations at war. What defence would it be to England, France, or the United States, if charged with a breach of neutral obligations, or the sufferance of violations of the nation's neutrality by a bellige- rent, to plead that she had no code of laws adequate to her own protection, or to enable her to prevent such violations by other nations upon her own territories? It seems clear, therefore, upon principle, that the United States have* a just right to require that England should avail herself of her Foreign Enlistment Act to prevent acts of hostihty prohibited by the law of nations from being com- mitted within her dominions against the United States ; and that a failure so to apply it should constitute reasonable cause of complaint, and might, if carried to a certain extent, and under some circumstances, justify claims for indemnity, or a declaration of war. This conclusion is equally clear upon recurrence to the history of the Foreign Enlistment Acts of England and the United States, and of the principles upon which they were professedly founded. As before shown, the Act of the United States was passed at a time when they stood in a position requiring the most faithful observance of neutral obligations towards France and England, then at war ; and this was done upon the application of the English Government, as a means of enabling that of the United States effectually to fulfil them. It had its origin, therefore, confessedly and eminently, ENGLAND AND THE UNITED STATES. 77 in an acknoioledgcd ohlirjation on the part of a neutral to other nations, as a means of preservuuj an impartial neutrality, and was applied in constant and strict conformity with sueli obligation. It was afterwards amended, and adopted by England almost without change, thus implying a coincidence of opinion and intention as to its meaning and purposes ; and England, at a period long subsequent to her adoption of it, claimed of the United States its application for her protec- tion, and the claim was allowed. If ever, therefore, a fair claim could exist in behalf of one government upon another for the interposition of such a means of defence against violations of its neutrality, the United States has that claim on England ; and more emphatically may it be demanded when they seek it, not against a foreign enemy in an ordinary warfare, but against traitors and rebels, seeking the over- throw of their Government for the establishment and per- petuation of the most accursed institution that ever afflicted or degraded a civilized people. Another and very strong claim which the Government of the United States has upon that of England for the inter- position of the law in the present case, is that these violations of her neutrality, productive of such extensive and serious injuries, are not perpetrated so much by the enemy within her borders as by her own people. For, hoAvever it might be urged that offences committed against the riglits of a neutral by either of the belHgerents are wrongs against the neutral only, of the sufferance of which the other belligerent has no lawful cause of complaint, no such defence can be taken where the offences are substantially perpetrated by the sub- jects of the neutral power; and so, if permitted or connived at when means of prevention exist, become her own, and for them she is justly accountable ; and no case, it is thought, can be imagined, in Avhich a stronger claim, founded on this ground, could be made, than one by the United States against England. 78 NEUTRAL RELATIONS OF Upon these principles and historic facts, it seems clear that England is under solemn national obligations to enforce her Foreign Enlistment Act for the protection of the com- merce of the United States from the depredations of rebel privateers, and ships of war, that are now in process of con- struction within her territories, or are roaming the seas. Nor is there wanting striking proof of her own recognition of these obligations in past times, when her own interests prompted it, or her sense of duty was unimpaired by jealousy or ill-will. A notable proof of the holy horror and indigna- tion with which, in the war of Independence between her and the United States (her revolting colonies, or rebels, as she termed them), she contemplated the supplies of arms and ammunition, and the fitting-out of privateers, and vessels of war, in French ports, to aid her rebellious subjects, — cor- responding with singular exactness with the aid furnished in England to the insurgents in this war, — maybe seen by perusal of the '' Memoire Justificatif," setting forth the justi- fying causes for war against France (in the 22d vol. of the British "Annual Register" for 1799, p. 404). Mutatis mu- tandis, it might serve with equal propriety as grounds for a declaration of war by the United States against England at the present moment. The most impressive proof, however, and a truly honorable one, of England's recognition of this duty, took place under the Duke of Wellington's administration, in 1828 or 1829, in the celebrated case of the Portuguese expedition to Terceira. In the contest between Donna Maria, as Queen of Portugal (so recognized by Great Britain and the principal powers of Europe), and the usurper Don Miguel, a large number of her subjects embarked in vessels from Plymouth, ostensibly bound for Brazil, but in reality for the Island of Terceira, which had remained faithful to her ; and, it being suspected by the English Government that they were bent upon a mili- tary expedition to that island, it despatched a naval force to ENGLAND AND THE INITKD STATES. 70 intercept them, and prevent their landing; and this was (U)ne by force of arms, the shedding of blood, and the taking of life. The English fleet not only fired upon the transports, killing at least one man, but seized them, and carried them to a great distance at sea, and then returned to stand guard over the island, and prevent the landing of the men. The ground taken by the administration was, '' that, the ex|)edi- tion having fraudentlij evaded the English jurisdiction, and started from England in violation of the Enlistment Act, the English Government was entitled to pursue and seize the s/n^js beyond her Jurisdiction." It is true, great opposition was made in Parliament to the legality and propriety of the pro- cedure ; but the Government was honorably sustained, and it stands a proud record of England's sense of her duty as a neutral. But the Government of England was then in the hands of a great man, who knew how to assert and defend her honor, in diplomacy and in the performance of her neu- tral duties, as well as on the field of battle. Upon the principles of that decree, it is England's duty now to send out and seize these destroyers, burning and plundering in violation not only of her own laws, but of the law of nations ; instead of which, she receives them with open arms of friendly hospitality into her ports. How strikingly dependent upon the character of an individual Minister is the honor, and sometimes even the destiny, of a nation ! The Supreme Court of the United States recognizes this doctrine as well settled in the courts of this country. In the case of the " Marianna Flora " (1 Wheaton's Rep. p. I), the Court says, " that American ships offending against our laws, and foreign ships, in like manner, offending ivithin our jmns- diction, may afterwards be pursued and seized iqwn the ocean, and rightfully brought into our courts for adjudicaiioii,^^ — a doctrine obviously essential to the vindication of national sovereignty and the protection of those against whom such 80 NEUTRAL RELATIONS OF offences were intended, and one which England will not be slow to respect when a returning sense of duty, or of national honor, shall prevail in her national councils. It is gratifying to perceive, that the principle that a bel- ligerent, injured by violations of neutral territory or rights, may rightfully expect that the neutral government will en- force its laws for their prevention (of late so vehemently denied in England), has been already, in some measure, admitted by the British Ministry, as appears by the speech in Parliament by Lord Palmerston, before mentioned. And it may be hoped, that, when the subject of the gross viola- tions of her neutrality, which have been committed within her jurisdiction in this war, come to be more generally known and understood, a popular sense of justice and self- respect will demand that the principle • shall be a}> plied. It may be, however, that the right to seize and confiscate the rebel ships, under the Enlistment Act, may be barred as to those which have been twelve months at sea, under the limi- tation in the tenth section, if that shall be adjudged to apply to an information against the vessel as well as to an action or suit for penalties against persons guilty of violating its pro- visions. But a revocation by England of her recognition of the rebels as a belligerent power — demanded, as it seems to be, in vindication of her own laws and of the law of nations, which they have so flagrantly and defiantly outraged, and in vindication of her national sovereignty against the piracies committed upon her own subjects (which must continue to be committed so long as their career at sea remains un- checked) — would be the most effectual means of suppressing these depredations. And surely a people have little right to require to be acknowledged as belligerents at sea, who have no means of rendering the taking of property by them there lawful, under the subsequent proceedings made essential to ENGLAND AND THE UNITED STATES. 81 that end by the hiws of nations, but can only carry on marine warfare in open and avowed and necessary violation of them. This recognition was in itself a signal departure from a just neutrality, as being inconsistent with the strict impartiality which that demands. For it gave to the rebels what they had not before, — a national sto^ws, — to which they had not become entitled by lapse of time, or by any public proof of reasonable ability to maintain themselves ; and more especially it gave to British subjects the privilege of enlisting in their service and supplying their needs, with immunity from the liability of being accounted pirates by the Government of the United States (as they otherwise might have been under her statutes and with her rights against rebels in arms), the fear of which would have probably prevented the disposition of Englishmen to enlist in rebel privateers ; while, at the same time, it substantially took from the United States the power to enforce those statutes even against American citizens. And followed, as this recognition immediately was, by its natural fruits, in the extensive embarkation of British capital and British seamen in privateering enterprises against the commerce of the United States, — and considering the manner in which these have been tolerated, if not encouraged, by both the ministry and the people, — it requires no small stretch of charity to believe that it was not dictated by friendly yearnings, at least, towards the rebel cause. But, whatever the motives that led to it, a swift retribution fol- lowed ; for it proved to be the means of preventing the acces- sion of the United States to the Convention of Paris, of 1856, by which privateering was proposed to be abolished : and so England lost the opportunity of taking from the United States their present most formidable weapon in naval war, and of preventing the ruinous consequences to her commerce, to which, in case of war with the United States, she would always be exposed. In view of the necessities to which the 11 82 NEUTRAL RELATIONS OP United States may be driven in the maintenance of their national h'fe, many, if not most, of her citizens will regard the escape from this surrender of so formidable a weapon for self- defence as at least a very fortunate, if not Providential, event. Nor is it to be forgotten among the unhappy peculiarities of the position in Avhich England has placed herself by her un- friendly, not to say hostile, disposition towards the United States in this struggle, that it is owing solely to her interpo- sition of an obstacle in the way, that they have not become a party to the convention. When this proposal for the abolish- ment of privateering was first made, the United States readily acceded to it, upon condition that the right to capture private property on the sea by public ships of war should also be prohibited ; thus extending to property at sea the same exemption from plunder, which is generally allowed, by mo- dern civilization, to property on land. But England, having a vastly greater number of public ships of war than any other nation, and unwilling to surrender this advantage (though founded on a species of warfare which will soon be abolished, as little better than piracy, when she shall have one or more rivals on the ocean), refused the amendment. Soon after the Rebellion broke out, however, the Govern- ment of the United States renewed negotiations with Eng- land and France upon the subject, and finally instructed Mr. Adams to signify its willingness to become a party to the convention ; whereupon Earl Russell required, as a condition of England's consent, the interpolation of a clause, to the effect that " her Majesty did not intend thereby to undertake any engagement which should have any bearing, direct or indirect, on the internal differences now prevailing in the United States " ; — a reservation to which it is obvious that the Government of the United States could not assent with any degree of self-respect, or in consistency with its po- sition in reference to the traitors waging war upon it. ENGLAND AND THE UNITED STATES. 83 The reason assigned appears to be, that, England having recognized the rebels as a belligerent power, an embarass- ment might arise from any supposed obligation on her part, growing out of the convention, in reference to her treatment of the rebel privateersmen, if required by the United States to consider them as within its operation. It is not quite clear how England, by the mere recognition of the insurgents as belligerents, had imposed upon herself the obligation to forego the making of advantageous treaties with other nations upon the most important subjects of national intercourse and law. It would seem reasonable to infer, that any rights- under such recognition must be contin- gent, so far as they might be affected by subsequent treaties or negotiations with other nations not designed to impair them ; or, at the least, that such recognition, being a mere act of grace, revocable for good cause, if not at pleasure, might be so far modified as to meet the difficulty, by requir- ing the rebels (who are notoriously carrying on this species of warfare in atrocious violation of the law of nations, not unmingled with piracy upon her own citizens,) to acquiesce in an arrangement to which she and the other principal nations of the earth had become parties, as one demanded by humanity and the civilization of the age, — or else to lose the benefit of the recognition altogether. Under ordinary circumstances, candor might require us to suppose, that the preservation of good faith with the insur- gents was the only motive of the English ministry for this procedure ; but, in view of the uniformly hostile disposition evinced towards the United States in this struggle, and the very great, not to say essential, importance to the rebels of retaining this means of warfare, it may, without any wide departure from charitable construction, be considered doubt- ful, whether the procedure may not have been quite as much prompted by the conviction, that the dissolution of our Gov- ernment, and consequent destruction of our naval power, was 84 NEDTEAL RELATIONS OF 80 close at hand as to render its diminution in this way a mat- ter of Httle importance, or by unwilhngness to deprive the rebels of so formidable an engine of war as their English privateers constituted, or by a combination of both in- fluences. But, whatever may have been the motive, there must now be added to the other lamentable instances of false position in which England now stands, that of having prevented the con- summation of one of the most beneficent arrangements ever proposed to the nations of the earth for the amelioration of the horrors of war, by shutting the door to it in the face of one of the chief among them in point of. commercial and naval power, — and of doing this, or being compelled to do it, in order not to impair the privileges of a set of rebel despera- does, who, having no ports of their own, but making hers their base of supply and operation, are roaming the seas for the destruction of the commerce of a friendly nation ; while, at the same time, she loses the opportunity of permanently securing herself from the most dangerous species of warfare to which she may ever be exposed. 14 September, 1863. ENGLAND AND THE UNITED STATES. 85 X. THE " ALEXANDRA." CONSTRUCTION OP THE FOREIGN ENLISTMENT ACT. The discussion has hitlierto been confined to the cases of rebel ships of war, and privateers, which have been built, armed, and equipped in English ports, or under the jurisdic- tion of the English flag, and are now upon the seas, and which fall under the application of various principles of the law of nations, as well as of the Foreign Enlistment Act. There remain to be considered those of vessels of war built in English ports on contract with the rebels, or knowingly for their service, but not finished nor armed and equipped for the commission of immediate hostilities ; which cases are to be examined in reference to the applicability to them of that statute. These cases are of peculiar interest, as involving the ques- tion of the power and correspondent obligation of the British Government to interfere with the fitting-out of ships of war in season effectually to prevent their completion ; it being obvious, that if no such right of interposition exist until they shall have been fully armed and equipped, ready to sail at the first opportunity for slipping out of harbor, the law must prove little better than a dead letter, as such seeming com- pletion or departure would never take place until after their escape, or until the moment when escape would be certain. The case of the " Alexandra," now on trial, and those of the Turreted Rams in process of completion, are of this de- scription. 86 NEUTRAL RELATIONS OF That of the " Alexandra " is simply the case of a ship of war, launched, and quite or nearly prepared to receive her arma- ment, under contract with the rebels, or persons acting in their behalf, and for their service in hostilities against the United States (the contractors knowing of such intended use), and seized, upon an information under the seventh section of the Foreign Enlistment Act, before she was entirely equipped, or had any arms on board. No one, reading the evidence, could doubt that the parties engaged in her construction and completion intended her, or were so engaged with the knowledge that she was intended, for the rebel service. The Lord Chief Baron, in his summing- up (if correctly reported in the *' London Times " of June 25), placed the case upon the question, '' whether^ not being armed, the jyreparation of the vessel in its then condition was a viola- tion of the Foreign Enlistment Act ; " " whether, under the seventh section of the act of Parliament, the vessel, as then ])re2Jared at the time of seizure, was liable to seizure." He stated the law to be, that a neutral power may lawfully supply either belligerent with arms and munitions of war ; and that, in his opinion, it may with equal right supply them with ships also ; that " the object of the statute was, that British ports should not be made the ground of hostile movements between the vessels of two belligerent powers, which might he fitted out, furnished, and armed in those pot'ts." And after stating, that, '' if the ' Alabama ' sailed away from Liverpool without any arms at all, as a mere ship in ballast, and her armament was put on board at Terceira," then, in his opinion, " the Foreign Enlistment Act was not violated at all," he closed by saying, " If you think that the object was to furnish, fit out, equip, and arm that vessel at Liverpool, that is a different matter ; but if you think the object really was to build a ship in obedience to an order in compliance with a contract, leaving those who bought it to make what use they thought fit of it, then it appears to me that the Foreign Enlistment Act has not ENGLAND AND THE UNITED STATES. 87 been broken." It is clear, therefore, that his Lordship at- t^tched no importance to the intention of the parties engaged in building or preparing the vessel, although such intention might be to build or equip and arm a vessel of war for the service of the rebels, and on contract with them, provided that such intention did not extend to the Jitting-out and equip- ping of her in a British port. The Attorney-General seems to have endeavored to bring his Lordship's mind to the point upon which he apparently rested his case ; namely, " that if the ship was hiiilt with the intention that it should enter the service of another power, at war with a power with which England was at peace, that Avould be an offence against the statute.'"' But his Lordship, as reported, seemed un- willing to recognize the distinction between such a propo- sition and that involved in a question put to him by the Attorney-General, " Whether it would be unlawful for a ship- builder to build a ship capable of being turned to warlike purposes, with the view of offering it for sale to the bellige- rent," though it is obviously a very different one ; and he must be understood as having, impliedly at least, overruled the point so taken. From the seeming want of precision in the statements of the points made by the counsel, and taken or commented upon by the Court, it must be inferred that the case is very imperfectly reported. But, according to this report, the facts may be assumed to be, that the persons who were engaged in the building and preparing of this vessel acted under a contract with the rebels for the building and equip- ping of a ship of war, knowing her to be intended for their service in hostilities against the United States ; and the doctrine of the Court to be, that such building and equipping constitute no offence under the Foreign Enlistment Act, un- less the ship be completed and armed at the time of seizure, or intended to he completed and armed and made ready for immedi- ate hostilities ivithin a British port. It does not appear clearly, 88 NEUTRAL RELATIONS OF whether the Court would hold even such intention sufficient, unless the vessel, at the time of seizure, were actually armefl and equipped for sea. But it is of little importance how this may be, as either construction of the statute would render it substantially nugatory : it being evident, that, if she must be armed and equipped for immediate hostilities before she can be seized, she can always escape before such entire comple- tion, or immediately after it, under cover of night, or of a picnic pretence, or other artifice, which it would be easy to contrive, and at which willing officials, from crown-lawyers down to tide-waiters, under a Government sympathizing with the belligerents to be served by such escape, would be ready to wink ; or that such prospective intention, so minute and reaching so far, would rarel}^, if ever, be susceptible of proof, even if existing in the minds of any of the persons engaged in her construction or equipment, while all of them might be, and in all probability would be, kept in ignorance of any such design in the minds of their employers. Nor is this all ; for, if this doctrine be maintainable in the latitude stated by the Court, it would only be needful that the ship, entirely fitted for sea in all but her armament and fighting crew, should proceed to any point at sea three miles and a furlong distant from any port on the English coast, there to receive them from another vessel under the English flag, and then to com- mence her cruise, free from all violation of the Act, or liability under it. How far this would differ in substance from sailing immediately from such port, thus fully armed and equipped, upon her cruise, every man of common sense can judge. Well might the rebels exclaim, as they did in one of their leading- papers in Richmond, in view of such a judgment as this, " The advantages to us which an affirmation of this ' Alexan- dra ' case will afford cannot be overestimated. If they are promptly availed of by our naval authorities, we will be in a position not only to give a death-hlow to the commerce of our enemy, but to strike at some of his Northern cities," &c. I ENGLAND AND THE UNITED STATES. 89 " Vessels of the * Warrior ' class tvould promjAbj raise the blockade of our ports ; and would even confer, in this respect, advantages which would soon repay the cost of their construc- tion." The extreme results, promised in the usual style of rebel braggadocio, would not be realized ; but it is not ven- turing too much to say, that under a confirmation of this decision, carried to its full extent, a powerful English navy might soon be at sea, in the service of the rebels, and rendering war by the United States against England, in sell-defence, as necessary as if it were sailing under her own flag. It is confidently believed, that the construction thus put upon the act by the Court is in direct opposition to its plain terras, and to the design of its authors, if their purpose was the protection of England's neutral rights and the observance of her neutral obligations, and not merely an unworthy pre- tence. The terms of the statute arc these : " If any person within any part of the kingdom, &c., <fec., shall equip, furnish, fit out, or arm; or attempt or endeavor so to do; or procure to he eqicipped, &c., &c. ; or shall knowingly aid, assist, or be con- cerned in the equipping, &c., &c., with irdent or in order that such ship or vessel shall be employed in the service of any foreign power as a transport or storeship, or with intent to cruise or commit hostilities against another foreign power, with whom her Majesty shall not then be at war, — every such person shall be deemed guilty of a misdemeanor, &c., <fec. ; and every such ship or vessel shall he forfeited.''^ One of the principal positions taken in the argument of the case, and upon which this construction of the Act appears to have been based, or which seems necessarily implied in it, is, that, in order to constitute an offence under the statute, " the owners of the vessel (at the time of the seizure) must intend to use it against some state or community in friendsliip with her Majesty." The counsel of the claimants, in his argument, stated the point thus : that the seventh section " was directed 12 90 NEUTEAL RELATIONS OF against a person who was supposed to equip, fit out, or own a vessel, with the intention of cruising on his own account, and committing hostilities against a foreign nation ; " '' that it was perfectly competent for any person to build a ship, easily convertible into a ship of war, and sell that ship to any belli- gerent power ; and the fact that the seller knew that she was to be employed as a war vessel had nothing- to do with the question." This language embraces, and must have been intended to em- brace (as otherwise it was inopportune and unmeaning), the case where the vessel was built designedly for a ship of war on a contract with the belligerent. The Court took no exception to this statement of the law, and must be supposed to have sanctioned it, — if it be not indeed necessarily implied, as it seems to be, in the doctrine, that the vessel must be armed and ready for immediate hostilities before any offence can have been committed, and the reasons assigned for it ; and Earl Russell, in his Letter of August 31, to the Emancipation Society, advances the same doctrine, in the language above quoted. But, with all the respect due to either tribunal, it is believed that any such doctrine is entirely untenable. The offence created by the statute is not confined to equipping and arm- ing the vessel with intent so to use her, but embraces also any such equipping, &c., with intent or in order that she shall be so employed. And that any person, who, in fulfilment of a contract with a belligerent or his agent for the construction, equipment, furnishing, fitting-out, or arming of a ship of war, knoAving that he intends to use her in hostilities against his enemy, does equip, furnish, fit out, or arm her, with intent or in order that she shall be so employed, or does attempt or endeavor to do so ; does procure it to be done, or does knowingly aid or assist or is concerned in so doing, — seems self-evident, upon the plainest interpretation of the terms of the statute, if not upon the only one possible. They do not, in letter or spirit. ENGLAND AND THE UNITED STATES. 91 require that the person so contracting, or so employed, or being the present owner, shall himself intend so to use her, but only that she shall be intended to be so used by the parties who may be the owners at the time of the seizure, or by the parties for whom she is being constructed, equipped, or armed, although the legal property may not have passed from the contractor, provided that he knows that she is intended for such use by them; for if his knowledge of such intended uso would not constitute a legal intention on his part, within the statute, that she should be so employed (as it is believed it clearly would), it certainly proves that he was constructing, equipping, or arming her in order that she should be so. Further, it is manifest that this doctrine, that the owners at the time of seizure must intend personally so to use her, renders the statute utterly and contemptibly useless ; for, upon such a construction of it, parties might safely contract with the belligerent for the delivery to him of a ship of war fully armed and equipped, ready for an immediate cruise, and with full knowledge of such intended instant use, and hold her thus prepared at a remote place anywhere within the verge of three miles from the seacoast, to be delivered at an opportune moment for making her safe departure certain, — and yet they be all the while guilty of no offence, and the vessel not liable to forfeiture. If the framers of the statute had intended that the parties equipping, arming, &c., must design such use of the vessel by themselves, in order to constitute the offence, they would have said, '' with intent so to use said vessel," and not have adopted the so much more comprehensive phraseology, " ivith intent or in order that such vessel shall be so employed." Another and a prominent position, taken by the Court and assumed by Earl Russell in his Letter, was, that the vessel must have been actually armed, in order to constitute any offence under the statute : so that no preparation, nor act done for the preparing of a ship of war, although under a contract 92 NEUTRAL RELATIONS OF with a belligerent, and with full knowledge of his intended use of her, renders any party concerned guilty of a breach of the statute, or the vessel liable to forfeiture, unless an actual arming shall have taken place. In order to sustain this construction, it is manifestly neces- sary to show, that the words " equip," '' furnish," " fit out," " or arm," all and each, mean the same thing; and the Lord Chief Baron, if correctly reported, undertakes to demonstrate this proposition in this manner. He says, that, " according to Webster^ s Dictionary ^ equipping is furnishing with arms ; " and " that furnishing is given in other dictionaries as the same thing as equipping." Whether "fitting out" means also the same thing, is not stated, but it must be presumed to be implied. Perhaps there is a hiatus in the report. Now, but for such grave authority to the contrary, one would be apt to conclude, that the mere circumstance, that these several expressive words were thus disjunctively used, was pretty clear proof that some distinction between them was understood and recognized ; else why use any but the single word " arm " ? If arming was to be the only thing provided against, that single word would have sufficed, and have left no room for doubt ; and the others, being mere superfluities, could add nothing to its strength, as being mere synomymes. But it is obvious that the " equipping," " furnishing," and " fitting-out " of a ship of war embrace many things besides her arms, and of not less essential importance. She could with no greater propriety be said to be " equipped," " fur- nished," or " fitted out," without sails or steam-engines or other motive power, or without anchors or provisions, or without a crew, than without arms ; and it seems to ordinary common sense, that he who supj)lies, or applies, either of these essential elements of a full " equipment," " furnishing," or " fitting-out," aids or assists, or is concerned in, or at- tempts or endeavors to effect, such equipping, fitting-out, or ENGLAND AND THE UNITED STATES. 93 furnishing, quite as much as ho who supplies, or puts on board, the guns and ammunition. And surely, in construing a statute designed to prevent the perpetration of crimes against the State herself (in derogation and defiance of her majesty as a nation, and tending to impair her faithful obser- vance of her obligations to other nations, and endanger her peaceful relations with them), it must be esteemed within the bounds of a reasonable interpretation to apply this lan- guage of the statute to him who constructs the ship, or fits her, with all the various adaptations and appliances, for the reception and use of her specified armament (all which must be skilfully and carefully fitted with peculiar reference to its nature and use), whether he build her with such preparation or fitting, or, having procured one for the purpose, he so prepare or fit her. Surely he who thus prepares the whole foundation of the superstructure — the ship herself, and all her adaptations to the end designed — may be reasonably accounted as one engaged in equipping, fitting out, or furnish- ing her, or procuring it to be done, or aiding or assisting or being concerned therein. But that these words were not intended to be used as beinjr synonymous with " arming," is manifest from the application of them in the same section, and in the same manner, to a store- ship or transport. The language of the statute is, " If any person shall equip, furnish, fit out, or arm, &c., &c., any ship or vessel, with intent or in order that such vessel shall be employed, &c., &c., as a transport or store-sJup, or with intent to cruise, or commit hostilities, &c., &c." Now, although a transport or store-ship may have arms on board, it certainly is no necessary or uniform part of her equipment, furniture, or fitting-out; and the statute in thus placing them and cruisers, or ships intended for hostilities, in the disjunctive relation, plainly recognizes the distinction between them and armed vessels. 94 NEUTRAL RELATIONS OF Upon a fair construction, therefore, of the statute, in refer- ence to its language and its design, it is beh'eved to demand, that ever^ one who takes part in the preparation of a ship of war for the service of a belligerent in hostilities against a friendly power (knowing of such intended use) is guilty of an offence under it, whether that part be in building or fitting her for that purpose, or in furnishing her motive-power or armament, or any other essential element of her capacity as such ship of war ; — if, indeed, the statute does not also go fur- ther, and demand that every one, knowingly engaged in any preparation of her for such use, be considered thus guilty, although such preparation may not be of a character peculiar to a ship of war, but such as is common for all vessels about to proceed to sea ; the criminal intention connected with any act of equij)j)ing, flemishing, or fitting out, constituting it a crime within the terms of the Act. And such, we are happy to know, is the settled doctrine of the Supreme Court of the United States. In the case of the United States v. Quincy (6 Peters's Rep., p. 445), before cited (in No. IV. )> ^^^ de- fendant was charged in the indictment with " being knowingly concerned in the fitting-out of a certain vessel called the ' Bolivar,' with intent to commit hostilities," &c. ; and, in another count, with intent " that the said vessel should be so employed," &c., <fec. : and the main point of defence was, that the vessel " was not armed, or at all prepared for war, or in condition to commit hostilities, when she left Baltimore." But the Court decided, " that it was not necessary that the vessel, when she left Baltimore for St. Thomas, and during the voyage to St. Thomas, was armed, or in a condition to commit hostili- ties, in order to find the defendant guilty of the oflfence charged in the indictment ; " that " an attempt to fit out and arm is made an off'ence, and that this is certainly doing something short of a complete fitting-out and arming ; " that " to attempt to do an act, does not, either in law or common parlance, imply a completion of the act, or any definite progress towards it, ENGLAND AND THE UNITED STATES. 95 but that any effort or endeavor to effect it will satisfy the terms of the law ; " and that " the offence consists principally in the intention with whicli the preparations to commit hostilities were made." This case, too, is in point in reference to the true construc- tion of the words " equipping, furnishing, fitting-out, or arm- ing ; " showing that the word " or,^^ thus used, designates arming to be a distinct offence from that of fUting-out, etc. Such is the construction put by the Supreme Court of the United States upon substantially the same statute, in the just and generous spirit of interpretation with which it contem- plates the enactment as designed alike for the protection of our own neutral rights and dignity, and for enabling us to discharge our obligations to other nations ; and it seems in striking contrast with that construction, which would narrow its design to the protection of our own selfish interest only, and with a strictness of interpretation that renders it little better than a subterfuge or a pretence. It is to be regretted that the Lord Chief Baron had not the opportunity of consultr- ing the grave authority of such a case, decided by the highest tribunal of the land in which the statute originated, and from which his own Government had adopted it, instead of relying upon a Dictionary, whose amplitude of definition is more com- mendable for its convenience to miscellaneous readers than for philological accuracy. There is another class of cases strictly analogous, and con- firmatory of this doctrine, which arose upon the construction of the statute against the Slave-trade Act, 20th April, 1818 (ch. 373), passed not long before that which is tlie subject of the present discussion. That statute provides, that " no citi- zen, &c., shall, for himself or any other person, either as master, factor, or owner, build, Jit out, equip, load, or otherwise prepare, any ship or vessel, &c., &c., for the purpose of pro- curing any negro, &c., from any kingdom, &c., to be trans- ported to any place to be held or disposed of as a slave ; " and 96 NEUTRAL RELATIONS OF " if any ship or vessel shall be so built, fitted out, equiioped, laden, or otherwise prepared., for the purpose aforesaid," she shall be forfeited. In the case United States v. Gooding (12 Wheaton's Reports, p. 460), the defendant was indicted for fitting out the ship, with intent so to employ her. Among other points taken by the defendant, it was contended that the count charged d, fitting-out in the port of Baltimore, which, according to the true legal interpretation of the words in an indictment, means a complete equiptment ; and that evidence of a partial equipment in Baltimore, and a further equipment at St. Thomas, would not support the charge. On this point, the Court ruled, that, if the vessel sailed from Baltimore for the p)urpose of employment in the slave-trade, her fitment was complete for all the purposes of the Act ; that it was '' not necessary that every equipment for a slave voyage should have been taken on board at Baltimore, or, indeed, any equip- ments exclusively applicable to such a voyage;^' that ''the statute punishes the fitting-out of the vessel with intent to employ her in the slave-trade, however innocent the equipment may be luhen designed for a lawful voyage ; " that " it is the act combined with the intent, and not either separately, which is punishable ; " and further, " that any preparations for a slave voyage which clearly manifest or accompany the illegal intent, even though incomplete and imperfect, and before the DEPARTURE of the vcsscl from port, do yet constitute a fitting- out within the purview of the statute : " and the Court refer to several other cases sustaining this construction of the statute. There can, therefore, be no possible doubt, but that, upon the facts understood to be established in the case of the '' Alexandra," as above stated, the Supreme Court of the United States would decree that the vessel had become for- feited, so far as the decision might depend upon the question of her being equipped or fitted out within the purview of the statute. ENGLAND AND THE UNITED STATES. 97 It was confidently hoped that this Number would relieve the reader who has followed this discussion from any further tax upon his patience; but its already great length precludes the consideration of one other, and perhaps the main, argu- ment for the defence in the case of the " Alexandra," which remains to be examined. 19 September, 1863. 13 98 NEUTRAL RELATIONS OF XI. FOREIGN ENLISTMENT ACT. THE "ALEXANDRA," AND TURRETED RAMS. LAW OF NATIONS. LIABILITY OF ENGLAND. POSITION OF THE UNITED STATES. The main argument, however, upon which the Court relied, in deciding the case of the "Alexandra," seems to have been, that a neutral has the right to sell a ship of war to a belligerent, without any infringement of the Foreign Enlistment Act or of the law of nations. The proposition was thus stated. After reading some passages from Ameri- can law-books, which are not cited in the report, and the pertinency or precise bearing of which cannot therefore be judged of, his Lordship said : " These, Gentlemen, are authori- ties which show, that, when two belligerents are carrying on war, a neutral power may supply, without any breach of international law and without a breach of the Foreign Enlist- ment Act, munitions of war, gunpowder, every description of arms, every thing, in fact, that can be used for the destruc- tion of human beings. Why should ships be an exception ? I am of opinion, in point of law, they are not." "If Birming- ham, or any other town, may supply any quantity of munitions of war of various kinds for the destruction of life, wh37- object to ships ? Why should ships alone be in themselves con- traband ? " "A man may make a vessel, and offer it for sale ; " and, " if a man may build a vessel for the purpose of offering it for sale to either of the belligerent parties, may he ENGLAND AND THE UNITED STATES. 99 not execute an order for it ? That appears to me to be a matter of course." And he concluded, as before recited, by saying : " If you think that the object was to furnish, ft out, equip, and arm that vessel at Liverpool, that is a different matter [meaning obviously the object of the persons then equipping her, to equip her for their own use] ; but if you think the object really was to build a ship in obedience to an order in compliance with a contract, leaving those who bought it to inaJce ivhat use they thought ft of it, then it appears to me that the Foreig-n Enlistment Act has not been broken." The prominent point understood to be decided by the Court is, that the builders or owners of a vessel which has been built for a ship of war in a neutral country, and which they are equipping under a contract with a belligerent power, or the citizens of one, or persons in its service, to be delivered in that country, to be used as it or they may see fit (the builders or owners knowing, or having reasonable cause to believe, that it is intended to be used in committing imme- diate hostilities against another power at peace with the neutral), — are not guilty of any offence against the statute, provided that they do not themselves intend to participate in such use. The same principle is laid down by an English author (and one of the ablest of those who have written upon questions arising out of the Rebellion) in these terms : " The Enlistment Act is directed, not against the intention of selling, but the intention of making war. It prohibits ivarlike enterprises ; but it does not interfere with commercial adventure. A subject of the Crown may sell a ship of ivar, as he may sell a musket, to either belligerent with impunity ; nay, he may even despatch it for sale to the belligerent port : but he may not take part in the overt act of making war upon a people with whom his sovereign is at peace." Again : " The authors of the Foreign Enlistment Act were not so absurd and illogical as to have forbidden the equipping and arming 100 NEUTEAL RELATIONS OF of a sliip for sale, whilst they did not forbid the making and selhng of a park of aitillery." ^ The authority which seems to be mainly relied upon as maintaining these propositions, and that doubtless to which the Court alluded, is the case of the " Santissima Trinidad," 80 often above referred to. But that it falls far short of establishing any such proposition, is evident upon its facts, and the reasons assigned for its decision. In that case, the capturing vessel had not been delivered to the belligerent within the United States, nor had she been delivered in the country of the belligerent under any contract with him. Up to the time of her sailing from the United States, and until her arrival in Brazil, she was held by her owners as a subject of use or sale, at their entire pleasure, with no fixed purpose beyond that of a mercantile adventure ; and not under any contract with the belligerent, or expectation of sale to him, beyond that existing in the mind of any adventurers, when sending any other articles, contraband of war, to the country of a belligerent, which he may or may not buy, and of the safe arrival of which, free from capture by his enemy, and of the subsequent purchase of which by the belligerent, they take the hazard. And it was upon this precise ground that the Court maintained, that, being a merely mercantile adven- ture, it constituted no violation of the Enlistment Act. The whole reasoning of the Court implies the converse proposition, that, if she had sailed under any contract between the owners and the belligerent, or under any other circumstance implying a ^^ fixed intention " on the part of her owners, at the time of sailing, that she should be employed in his service in hostili- ties against a friendly power, it would have constituted an offence wathin the statute; and the cases of the "Gran Para," and of the United States v. Quincy, are confirmatory of that position. The proposition, therefore, that the subjects of a neutral * r.etters bv Historicus, no. 168,, 171. ENGLAND AND THE UNITED STATES. 101 power may sell a ship of war to a belligerent in the neu- tral country, is not sustained by any judicial decision ; but, on the contrary, is considered to be more or less in direct opposi- tion to every decision that has any bearing upon the subject. The argument adduced in support of it is believed to be equally untenable. That argument is, that, inasmuch as the neutral has the right to sell arms and ammunition, or a park of artillery, to the belligerent, he has, by parity of reason, the same right to sell a ship of war. Now, if it were true (which it is not), that, by the law of nations and the law of England, it is lawful for a subject of the Crown, in all cases, to sell to a belligerent, in England, arms, artillery, and other munitions of war, and that, if no prohibition had been interposed, it would, for the same reason, be lawful to construct and equip for, or to sell to, him an armed ship of war ; still, the right of the Government to prohibit the construction or equipping or sale of such a ship, while leaving the sale of arms, <fec., unforbidden, is undeniable; and it will not be contended, that, if it should do so, express provisions of the statute, made for that purpose, are to be construed as not having been so intended. And this, we maintain, is precisely what the English Government has done by the Foreign Enlistment Act ; and the reasons for it are seemingly so manifest and imperative, that in all humility, and without the slightest disrespect towards those who main- tain the position in question, it is thought somewhat strange, that such right to furnish arms, and the right to furnish a ship of ivar, should have been considered as parallel cases and founded in equal reason. It must be borne in mind, that the great object of the En- listment Act, and the only one, so far as the question in hand is concerned, is to prevent or punish the violation of the law of nations, which prohibits the JiLiing-out of navcd expeditions or enterprises in a neutral country for the service of a bellige- rent in hostilities against a friendly power. 102 NEUTRAL RELATIONS OF Now, it is very evident, that the mere selling of arms and munitions of war to such belligerent, in a neutral country, leaving to him the venture of transporting them to his own country, or to any other place where he may have law- ful right to use them, or from ivhich he may laivfully issue with them in immediate use against his enemy,. — or a mere contract to deliver them to him in his own country, the vendor taking the risk of their capture as contraband on the voyage, — is but a remote and comparatively harmless act, if suitable provision be made to prevent the uniting of them with a vessel of war in the neutral country ; inasmuch as in neither case can such arms be used in immediate hos- tilities, as parts of any expedition or enterprise fitted out in the neutral country, nor until they shall have become the elements of one rightfully commenced in the belligerent's own country, or under some jurisdiction rendering it lawful ; and so there would be but little danger that such manufacture and sale of them could be made instrumental in any violation of the law. But the sale and delivery of a ship of war to the bellige- rent, armed and ready for sea, or the construction or equip- ment of one ready for the immediate reception and use of her armament, is a wholly different transaction ; and, if lawful, is not only far more available for the perpetration of the crime prohibited, than any sale of arms or munitions of war could be, but is sure to he successfully resorted to for that purpose ; as the experience in England, where its lawfulness is asserted, has most abundantly proved. Arms, and munitions of war, cannot carry ships to sea, nor be used in naval expeditions without them ; but ships, fitted for their reception and use, can carry them, a7id would certainly he made to do so, under some subterfuge, concealment, or co-incident arrangement, and so entire naval expeditions would be fitted out to plunder or prey upon the friendly belligerent, if the constructing or equipping of such ships were permitted. ENGLAND AND THE UNITED STATES. 103 There appears, therefore, great reason why such ct)nstruc- tion or equipping or sale of a ship of war should be prohibited, while the sale of arms should remain unforbidden, and left to the ordinary course of trade ; the proliibition of the former rendering the allowance of the latter harmless (or not subject to such frequent or dangerous abuse as would reasonably require its suppression), and being all that the necessity of the case can be justly thought to demand ; and, if so, the argument so much relied upon is of little weight. But the foundation of this argument Avill not bear exami- nation. It rests upon the unlimited proposition, that the neutral has the right to sell to the belligerent, arnis and munitions of war ; and thence it is inferred, that he must have an equal right to sell ships of war also. But this proposition, in the unlimited terms in which it is stated, is untrue, and is wanting in the elements which alone could make it the basis of such an argument. So far is it from being true, that the neutral has an unqualified right to sell arms and munitions of war to a belligerent in the neutral country, that, in point of fact, the law of nations prohibits any such sale for the purpose of increasing the armament or warlike force of any ship of war belonging to him, which may be within the neutral's jurisdiction ; and this same Enlistment Act, in the section following that prohibiting the equipping, tfcc, of a ship of war, enacts, that if any person shall, ^' by the addition of any equipment for luar, increase or augment, or procure to be increased or augmented, or shall knowingly be concerned in increasing or augmenting, the war- like force of any ship or vessel of war, or cruiser, or other armed vessel, which, at the time of her arrival in any part of the kingdom, was a ship of war or cruiser or armed vessel in the service of any foreign prince," <fec., he shall be deemed guilty of a misdemeanor, and be subject to fine and imprison- ment. The object of the statute is the same in both cases, and. 104 NEUTRAL RELATIONS OF if interpreted in the manner we contend for, is admirably adapted to effect that object ; namely, the prevention of the fitting-out of naval expeditions in the neutral country, in the service of a belligerent. This was done by the seventh section, forbidding the equipping and fitting-out of ships of war, which, if faithfully carried into effect, would also prevent the use of any arms obtained there for that purpose ; and by the eighth, forbidding the sale of arms in the only other case in which such use could be made of them. And surely it must be accounted marvellous logic in juris- prudence to construe a statute, enacted for the purpose of protecting the rights of a neutral nation from violation, and of assisting in the fulfilment of her neutral obligations, in such a manner, as to make the sale of a cannon, a musket, or a cut- lass, to a vessel of war belonging to a belligerent, an offence deserving fine and imprisonment under it, but the equipment or sale of a mighty ship of war for his service an innocent transaction, which it was not intended to reach, and cannot prevent. If these views be correct, and if the facts be, that the " Alexandra " was a ship of war in process of construction, on a contract with the rebels, or persons employed by them, to be used in their service in committing hostilities against the United States, it follows that the case falls clearly within the provision of the English Foreign Enlistment Act, and that she should be decreed to be forfeited ; and, if this should be the result of that trial, an end will be put to this agitating and painful question, which has so long and so seriously threatened the peace of the two nations ; and opportunity will be again presented for bringing them into accord in their understanding and appreciation of their reciprocal rights and duties as neutrals. If, however, the final decision shall be adverse to these views, although it will be, of course, conclusive as to the construction of the English Enlistment Act upon foreign ENGLAND AND THE UNITED STATES. 105 nations as well as upon English subjects, and upon the per- sonal liability or property involved in the suit, yet, so iar as it may purport to be founded in the law of nations, it will be of no further obligation upon them than its intrinsic con- formity to that law may import. No nation can be bound by the judgment of a court of any other nation upon a question of international law, but may nevertheless insist upon its own interpretation of that law, if at variance with such judgment, even to the ultima ratio regum. If, therefore, the English Ap- pellate Court shall determine that the acts complained of are in violation, neither of their Enlistment Act, nor of the law of nations, while we shall be concluded by the judgment upon the former, we shall be at liberty to deny the correctness of it upon the latter, and shall retain tlie right to insist upon redress for what we deem such violation. The case of turreted Rams is, however, of a very different character, and requires no elaborate discussion. They, when completed and equipped for sea, although without arms, are, as has before been stated (in No. IL), powerful and effectual ships of wa?' ; their peculiar construction, their beaks, their motive power, and other capacities for offensive warfare, being sufficient for effective hostilities upon commerce, and upon ordinary vessels of war, without the aid of guns. The pre- paration, therefore, of one such for the service of a belligerent, although unfurnished with arms in the usual meaning of that word, is the fitting-out of a naval enterprise or expedition, and her departure is the departure of one, as truly as would be the fitting-out and departure of a vessel fully equipped and armed as a ship of war in the ordinary mode of equipping and arming hitherto adopted. If, therefore, they shall be permitted to be constructed and fitted out or equipped in England, and to leave her in, or for, the service of the rebels, no doubt is entertained, that a gross and palpable violation of the law of nations, in regard to the neutral obligations of England to the United States, will have 14 106 NEUTEAL EELATIONS OF been perpetrated, which would justify an immediate declara- tion of war against her. It seems impossible that the construction, fitting-out, and preparation for departure, of such vessels, could escape the notice of the Government, unless wilfully blind. The only powers at war, for whose service they could be wanted, are the United States and the rebels. That they are not designed for the United States, is perfectly well known ; and that such ships were not designed for any other nation, could be easily ascertained at the several legations in London. Nothing, therefore, seems wanting to put tlie Government on its guard, and to enable it to interfere, if disposed to do its duty. No pretence that they were building for, or belonged to, subjects of Prance, or were under the shadow of the French flag, could avail to protect them ; for Frenchmen have no more right to build ships of war in England, to serve against a power in friendship with her, than Englishmen or the sub- jects of the adverse belligerent. Their construction and escape, therefore, would seem accounted for only by substan- tial complicity with the rebels. It has thus been attempted to show, that the Government of England has, in her Foreign Enlistment Act when faith- fully applied, ample means for suppressing the fitting-out of ships of war for the rebel service, and that it is their duty so to use it. But, after all, this is but one, and perhaps the narrowest and least important, view to be taken of a subject of such (it ma}'' well be said) infinite importance, — involving not only, as it may, the continuance of the present peace, but, as it must, the future permanent relations, of two great nations, kindred in blood, religion, literature, devotion to constitutional free- dom, and all that touches the great interests of humanity. The Foreign Enlistment Act is merely a municipal law, — a mere instrument or machine constructed for the convenience of the Government, to aid it in the discharge of its domestic ENGLAND AND THE UNITED STATES. 107 duties in reference to its own security, and to its relations with other nations. This statute adds nothing to, and can take nothing from, the obligations of the nation enacting it towards others ; nor is the extent of its efficiency or ineffi- ciency of the least importance in any question between that nation and others, excepting only in as far as it may indicate the disposition to be faithful to them. If it is ample for the protection of their rights against violation of neutral obliga- tions, it is no more than it ought to be. If it is not, it is the fault of the nation enacting it, and relieves her not from one jot or tittle of all she owes to them. But there is a higher law, — the law of nations, — with no tribunal indeed for its final decision, no executive authority for its forcible execution, and no code other than that found in the fundamental principles of right and wrong working in the heart of man in all civilized nations, — but acknowledged as the supreme law, which every nation is bound to obey, and the observance of which every one has the right to vindicate and enforce. This law, as universally acknowledged, prohibits the fitting- out of naval expeditions in a neutral country, by or for the service of a belligerent, for the purpose of committing hostili- ties against any other power at peace with such neutral. It is therefore one of the laws which the executive government of every nation is bound to sec obeyed or enforced, just as much as if it were a municipal law, enacted by its peculiar legisla- tive authority, imposing upon the executive government the duty of such enforcement. What may be the particular pro- cesses for doing so, may be more or less dependent upon the form of government, or the municipal regulations, of such nation ; but the duty exists, whatever the former may be, and whether there be or be not any of the latter. It is peculiarly, if not solely, the duty of the executive government to see to the enforcement of this law, because it it is a law of nations ; the fulfilment of which duty is demanded of the 108 NEUTRAL RELATIONS OF nation ivhich that government represents, and cannot be made dependent, like duties under municipal laws, upon the action of subordinate officials appointed by them for the discharge of those duties. Such was the sense of duty, upon this subject, entertained and acted upon by the Executive Government of the United States, under the administration of President Washington, when, before the existence of any Enlistment Act, or of any municipal regulations which could be invoked in its aid, it gave orders for the seizure and detention of vessels under a charge of intended violation of our neutral obligations to- wards England, and for the prosecution of the guilty parties. AVashington and his noble compatriots in the ministry did not think it beneath their dignity, nor beyond their duty, thus to interpose the power of the Government in protection of the good faith and honor of the nation ; nor that they were subject- ing her to humiliation in the subsequent procurement of more efficient means of doing so by the enactment of an Enlistment Act, although England had asked it. But now, after the lapse of two third parts of a century, the Executive Ministry of Eng- land, in cases of flagrant and atrocious violations of this law, already committed against the United States, and in many more, notoriously in progress within her realm, when attention is called to them by the ambassador of the injured power, dis- dainfully disclaims any obligation on its part to interfere, or take upon itself the enforcement of the law, or to act as the magistrate of the nation ; — but seeks to shelter itself under the subterfuge, that the only means for prevention or redress are in the application of one of her municipal regulations upon the subject ; and that this is a matter with which they have no concern, until some party injured, or in behalf of the United States, shall previously furnish them with authentic proof, in due form, of the actual violation of that municipal law, and in a manner exactly within its peculiar provisions, to be by them submitted to certain sub-officials, who are to decide ENGLAND AND THE UNITED STATES. 109 whether or not any interference shall take place. As if Eng- land's whole obligation were founded, not on the laio of nations, but on this particular specimen of her own municipal legisla- tion, and would be fulfilled by a compliance with its provisions, however inadequate they may be to enforce that law, or how- ever impossible they may make such enforcement ; — as if she were under no duty of interference for the protection of her honor and good faith voluntarily, but only when called upon by some interested party invoking such interposition, if there happens to be one within her realm of ability to seek it ; — thus leaving outrages upon a friendly power unprevented and un- punished, if no such party appear, or, if appearing, he have no means of procuring the evidence ; and, to crown all, when urged for the amendment of this municipal law, if ineffectual for the preservation of the nation's faith and honor, contemptu- ously replying, that England does not change her laws to suit the convenience or pleasure of other nations, — as if it were more consistent with her dignity to acquiesce in a violation of her duty to them, than to adopt the means for preventing it upon their suggestion. Let the municipal laws of England, and the disposition or ability of her Government, be what they may, the fact is before the whole world, written upon the ocean and upon the face of the skies in the lurid flames of burning ships and cargoes, that — in a great struggle between a long-estab- lished, legitimate, and free government (not only in peaceful relations with her, but with peculiar claims upon her friendship and sympathy) contending for life, on one side — and traitors and rebels seeking its overthrow, on the other — that, in such a struggle, a powerful navy of vessels, built and equipped in her ports, armed with guns and munitions of war manufac- tured by her artisans, and manned by crews from her shores, all united on her soil or under the 9Bgis of her flag on the ocean, and never having been within a rebel port, — an Eng- lish navy in all but the name and the flag, — is now roving 110 NEUTRAL RELATIONS OF the seas, burning and destroying American vessels and car- goes, in defiance of the established law of nations, and not without piracies upon her own subjects, and is received everywhere within her realm with friendly, if not dis- tinguished, hospitality. To attribute this monstrous anomaly to impotence on the part of the most wealthy and most powerful naval nation on earth, is impossible ; nor is it needful to seek its solution in jealousy or hatred on the part of the Government, or in a desire to break down an anticipated rival in commerce and naval power, or in the deficiency of her municipal regula- tions. It is enough that the fact exists, to prove a grievous wrong to the United States, for which redress ought to be made, whether the fault be that of the nation or of its rulers. It is sad to believe, that nothing is to be hoped for from the present Ministry, whose disdainful indifference to the claims of our country, if not their settled hostility to her, has, from the first breaking-out of the Rebellion, been so conspicuously manifested ; but the civilized world is already looking upon the spectacle with indignation, and the honest- hearted English people, when once aroused to a comprehen- sion of the truth, will behold with grief and shame the in- indelible page thus written in their country's history. Fortunately, the question of England's duty in this matter, so far as her municipal regulations are involved, has passed from the hands of her Ministry, for the present, into those of her judicial tribunals, upon whose independence, and sense of justice, we have been accustomed to rely ; and nothing can be done on either side until that shall have been decided. If the decision shall be, that the American interpretation of the statute is that which should prevail, and the " Alexandra " shall be adjudged forfeited, all future danger from this source will cease ; and the only remaining question will be that of the indemnity to be made for the injuries already perpetrated, ENGLAND AND THE UNITED STATES. Ill which is purely a diplomatic, and cannot be made a judicial question. If, on the other hand, it shall be decided, that the interpretation already put upon that statute by the inferior tribunal is to be sustained, and we are consequently to be left to a continuance of these depredations, and a reliance only upon our own means of self-defence, then will arise the grave inquiry, what measures the honor, the interests, and tlio duty of the United States, as a member of tlie family of nations, will require to be adopted. As before stated, the injuries already suffered, and a con- tinued exposure to the repetition of them, would justify a declaration of war against England ; both because of her vio- lation of the law of nations and of her good faith toward the United States, under our construction of them (upon which construction it is equally our right and our duty to insist) ; and because of the necessity of protecting ourselves against such ruinous depredations, even if England were innocent of any wrong in thus furnishing our enemy with the means for our destruction; — and the whole world would doubtless sanction such a declaration. But, inasmuch as England will have assumed the position, that she is guilty of no such violation of the law of nations or of her duty towards tlie United States, and will claim that she, too, is acting in conformity to both under her construc- tion of them, and with equal right to such construction, the point of honor is saved, and there will be no necessity of a war to vindicate the dignity or honor of the United States from any avowedly intended wrong or insult ; the existence of which would, of course, render war inevitable, there being no other alternative but national degradation, — never for an instant to be tolerated. In this state of affairs, the final adjustment may without dishonor be left to negotiation, and the logic of events, often so much more effective than diplomatic discussion ; the United States, in the mean time, taking measures to place 112 NEUTRAL RELATIONS OF herself upon an equal footing with England in reference to neutral rights and obligations. And this might be done by the repeal of our Foreign Enlistment Act, so far as the neu- tral relations of England and the United States, or English subjects or property, may be concerned, on the ground that her construction of her own statute renders it as substantially nugatory as any repeal could do. Or, if this might be con- sidered an offensive discrimination, the end might be attained by some enactment securing towards England and English subjects and property the same construction of our statute as she adopts of her own, and by giving notice to her, that such enactment is in no hostile spirit, but solely for the pur- pose of self-defence (to remove the ruinous inequality at present subsisting in the construction of the respective muni- cipal enactments of the two countries, by which inequality effectual security is given on the part of the United States against infraction of this nation's neutral rights to the injury of England, while England gives none such in return), and that the enactment will be rescinded, whenever she shall so amend her own Act, or enable her courts to give to it such construc- tion, as shall protect the interests of the United States to the same extent to which those of England are now protected by tliis nation, — and when, also, indemnity shall have been pro- vided for the losses sustained by American citizens by reason of depredations committed by rebel ships of war, or privateers, which have been equipped, fitted out, or armed in England, or under the English flag, in violation of the neutrality which it was incumbent upon her to observe and enforce during the present war. No nation on earth has at present a greater interest at stake in the safety of commerce upon the seas than England, or greater reason to desire, that, in case of war between hei and any other nation, the rights and obligations of neutrality, on the part of those not in the conflict, should be rigidly protected and observed ; and she could anticipate no such ENGLAND AND THE UNITED STATES. 113 danger from the failure to observe them on the part of any other nation as from a failure on the part of the United States, whose capacity and opportunities for supplying pri- vateers, and ships of war, to her enemy, would exceed those of any other nation, if not of all others combined. The adoption of the principles and practice of the United States upon this subject, and the very few millions of pounds sterling which it would require for the indemnity suggested, would be a very cheap price at which to obtain the perma- nent security which such an adjustment of this difficulty would give. Hundreds of millions would not compensate for the losses which will, in all probability, accrue to England in her future wars, if the United States are left free to act towards her, without reproach, upon the principles, and in imitation of the practice, hitherto adopted and acted upon by her in this Rebellion. But in the present condition of naval warfare and enter- prise, caused by the introduction of steam, enabling two or three armed steamships more effectually to depredate upon the commerce of a nation, than large fleets of sailing vessels of the old fashion could have done, even a consentaneous construc- tion of the present English and American Enlistment Acts, as adopted in the United States, would fall very far short of the means necessary for the preservation of the two nations from the danger of war between them, whenever, one being at peace and the other at war, the latter should suffer injuries from the alleged neglect or violation of the neutral duties of the for- mer. A more stringent limitation of the right or opportunities of neutral nations to furnish ships of war to belligerents, than the law of nations or the Enlistment Acts now provide, is demanded by the increased commerce of the world, — in order that such nations may be better secured from the danger of wars with belligerents, which may be caused by evasions or violations of their neutral rights, — and in order that bellige- rents may be better secured from the machinations, connivance, 15 I 114' NEUTRAL RELATIONS OF or want of vigilance, by means of which a neutral, under pre- tence of impartiality, may be made a substantial ally of one, to the detriment of the other. Such a change iii the present system can only be effected by a treaty between England and the United States, or by a de- claration of the character of that of Paris, in effect establishing a new law of nations in relation to neutrality, to be binding upon all the powers who shall assent to it. Without presuming to enumerate the exact extent or nature of the proposed arrangement, or the precise method of secur- ing a faithful observance of it (all which might be readily devised by those familiar with maritime affairs), it may suffice here to suggest, that the basis might be a prohibition upon any neutral nation to build or equip ships of war, or vessels which may be converted into ships of war, for, or to sell them to, any other power, or the subjects of any, at war with any power with which such neutral shall be at peace, — with such provisions for inspection by regular officers, and for bonds, &c., as might be necessary to prevent any undue interference with the right to construct vessels really intended for peace- ful service, but convertible into ships of war, — provisions which might be needful to prevent the prohibition from inter- fering with honest mercantile transactions, while protecting neutral rights, and preserving fidelity to neutral obligations. It is believed that the loss, if any, which any commercial nation could be put to by such restriction of this one branch of her manufacturing interests, would be compensated for, a thousand-fold, in her preservation from entanglements in wars between other nations ; while, at the same time, an advance would be made in the dignity and protecting character of the law of nations. It is indeed one of the marvels of these times, that the cupidity of two or three ship-builders in England, ready to sacrifice the faith and honor of their country for their personal gain, has been sufficient, under the present system, to bring ENGLAND AND THE UNITED STATES. 115 two great nations, who ought to be the most strongly united of any on earth, to the very verge of war. The principal cause of the present unfortunate relations between England and the United States, next to the hostility, and desire for our destruction as a nation, pervading her land- holding and commercial classes, is the settled belief, with which they have succeeded in inspiring the minds of the people at large, that the dismemberment of our Government is inevita- ble ; — a foregone conclusion which has been too readily and generally adopted, and which renders them comparatively indifferent to the conduct of their own Government, in the confidence that such dismemberment will soon terminate all difficulties, or leave us in no condition to resent any wrongs inflicted upon us. But the English people will soon awaken from this delusive dream, and realize the true character of this war on the part of the United States, as one into which they were driven origi- nally in defence only of constitutional law and of national life, against a treason which for atrocity has no parallel in his- tory, but which, in the providence of God, has become a war now also against an infernal institution, founded upon the most cruel wrong and injustice to one race, and productive of none but the most pernicious and demoralizing influences upon the other; — a war, in short, for constitutional law and liberty against despotism and slavery, and one for the success of which every intelligent and true-hearted Englishman must pray. Then will they realize, also, the false position in which her rulers, and those whose iiifluences have guided her counsels, have placed their own noble country, — a position alike false to her traditions as the champion of constitutional law and liberty, false to her honor and her faith as a neutral nation, and false, too, to any just conception even of her material in- terests. The people of the United States have no fears nor doubts about the result. Calm in the confidence of their ability to 116 NEUTRAL RELATIONS. suppress this Rebellion, resolute in their determination to do it, and assured of the support and guidance of the Great Ruler of nations in their cause, they will fearlessly go forward, come what may, and cost what it may, to the accomplishment of this, as the highest and noblest duty which God in mani- fest providence ever imposed upon a nation. 25 September, 1863. CENTRAL UNIVERSITY LIBRARY University of California, San Diego DATE DUE UEC 04 19/b M2V 2^ mt CEC17 1980 DEC 4 1980 JUN 1 3 ^^^'^ A?RlliaS8 'I'i'J 18 1968 - jii ti 8 19 8 CI 39 UCSD Libr.