Her Majesty's Government in these instances. But, that the punitive terrors of this act should have lost the example of actual forfeiture to the Rebel resources, or to the guilty British ship-builders, of the great value invested in them, and that the British Government should have refunded the money, exhausted by the guilty enterprise of the Laird rams, in season for its new use by the Rebel agents and their accomplices in the same illegal service, can never seem to the United States a valuable contribution to the efficiency of the Foreign Enlistment Act as an instrument of punishment of these proscribed and dangerous proceedings. These various traits in the actual dealing of Her Majesty's Government with the Foreign Enlistment Act as an instrument, and as its only instrument, for maintaining its neutral obligations to the United States, became as well known, and were as clearly appreciated by all Her Majesty's subjects, and through all her imperial dominions, as if they had been announced by a Queen's Proclamation. No wonder that a learned judge of one of Her Majesty's superior courts declared that a whole fleet of ships of war could be driven through the statute! That, as matter of fact, a whole fleet of ships of war was driven through that statute, is in proof before this Tribunal. British reliance listment Act a failure Upon the whole proofs, then, and in their application to the cases of all the offending vessels, we confidently submit to the ArbiUpon the Foreign En trators, that the Foreign Enlistment Act, as construed and of due diligence. administered, was not an adequate instrumentality for, and its actual employment by the Government did not amount to, the use of "due diligence to prevent" the violations of the international obligations of Great Britain to the United States, which are now under review. We have never been able to appreciate the practical difficulties in preventing the emission of these hostile vessels from British ports. They were a long time in course of construction; they were long under the actual notice of the Government; its apparatus and resources for the fulfillment of the required duty were deliberated upon, explored, and understood. In truth, no practical difficulties did exist. But, whether or no this plain and easy execution of the practical duty itself could not become uncertain, difficult, and even impossible, by the adoption of theories and methods and agencies which, framed only diverso intuitu, naturally ended in failure, is a very difficult question. These constant failures were never from ignorance, from accident, or misfortune. They were not like the failures which may happen under any Government, where remoteness of ports, impediments of communication, obscurity, and insignificance of the projects and the vessels themselves, give opportunity for concealment and surprise. Such are the instances industriously collected in the British Case and Counter Case from the earliest years of the existence of the Government of the United States, and again in the period of the Spanish-American and PortugueseAmerican hostilities. The situations are very dissimilar; the conduct of the British Government here, and of that of the United States at those early periods, proceed upon very different systems; the causes of failure, as bearing upon responsibility therefor, are entirely distinct. It is quite agreeable to be relieved from puzzling over the complexities, and delicacies, and obstacles which seemed to embarrass Her Majesty's Government, under Earl Russell's management of this international duty, in reference to so simple a matter as arresting these great ships of war, the Florida, the Alabama, the Georgia, and the Shenandoah, by the frank and practical view of the duty and the task ex pressed by Earl Granville, in Parliament, in the debate on the Washington Treaty. Earl Granville said : On the one hand, nothing is so easy as to prevent a vessel of the Alabama class escaping from our shores, and the only loss to the country which would result from such a prevention, would be the small amount of profit which the individual constructing and equipping the vessel might derive from the transaction, which in almost every case is contrary to the Proclamation of the Queen. 1 Nor are we able to see how Her Majesty's Government can escape from the dilemma which, on its failure to stop the Florida and the Alabama, and its easy success in stopping the Laird rams, was proposed to it by Sir Hugh (now Lord) Cairns, in Parliament. What will you say to the American Minister now? Do not you suppose that the American Minister will come to you and say, "You told me last year that unless you had a case for seizure, and proof by proper evidence, you could not arrest a ship at all; that you could not detain her? Although you admitted that the facts I brought before you created very great suspicion, you said that you could not seize the Alabama, therefore you could not touch her. But look at what you did in September. For a whole month you detained these steam-rams in the Mersey, while, according to your own words, you were collecting evidence, and endeavoring to see whether your suspicions were well founded." 1 maintain that when the United States hold this language, either our Government must contend that what they did in September was unconstitutional, or they ought to have done the same with regard to the Alabama, and are liable. 2 * * The neglect to Enlistment Act a fail V. Manifestly, if the Foreign Enlistment Act of Great Britain was thus inadequate and unsuitable, as an efficient instrument in the hands of the Government for the fulfillment of its amend the Foreign international duty to the United States, it was a failure in ure of due diligence. the "use of due diligence to prevent" the injuries now complained of, not to obtain from Parliament a suitable and efficient act for the fulfillment of the duty. The demonstration of the existence of this obligation, and of its being early brought to the notice of Her Majesty's Government by the United States, and of the refusal of Great Britain to meet the obligation, is complete. We refer the Tribunal to a statement of the contemporary correspondence on this subject between the Governments, and a memorandum of the action of Great Britain in the matter, after the close of the Rebellion, contained in Note C of the Appendix to this Argument. Contrast between Britain and the In strong contrast with this inaction of Great Britain, and with its justification by Her Majesty's Government, is the course taken by the Government of the United States in 1793, at the course of Great the instance of Great Britain, in 1817, at the instance of course of the United Portugal, and again in 1838, to meet an exigency in the in- spects. terest of Great Britain, for the maintenance of its sovereignty over the Canadian provinces. States in these re On the 3d of December, 1793, President Washington, in his message to Congress, after stating the means that he had used to maintain a strict and impartial neutrality, said: It rests with the wisdom of Congress to correct, improve, or enforce this plan of procedure, and it will probably be found expedient to extend the legal code and jurisdiction of the courts of the United States to many cases which, though dependent upon principles already recognized, demand some further provisions. When individuals shall, within the United States, array themselves in hostility against any of the powers at war, or enter upon military expeditions or enterprises within the jurisdiction of the United States, or where penalties on violations of the law of nations may have been indistinctly marked or are inadequate, these offenses cannot receive too early and close an attention, and require prompt and decisive remedies. 1 2 Am. App., vol. v, p. 493. On the 20th of December, 1816, the diplomatic representative of Portugal thus wrote to Mr. Monroe, then Secretary of State: What I solicit of him (the President) is the proposition to Congress of such provisions by law as will prevent such attempts for the future.1 Six days later, President Madison addressed a message to both Houses of Congress in part as follows: With a view to maintain more effectually the respect due to the laws, to the character, and to neutral and pacific relations of the United States, I recommend to the consideration of Congress the expediency of such further legislative provisions as may be requisite for detaining vessels actually equipped, or in course of equipment, with a warlike force, within the jurisdiction of the United States; or, as the case may be, for obtaining from the owners or commanders of such vessels adequate securities against the abuse of their armaments.2 At the same time, Mr. Monroe, Secretary of State, wrote to Mr. Forsyth, chairman of the Committee on Foreign Relations: I have now the honor to state that the provisions necessary to make the laws effectual against fitting out armed vessels in our ports for the purpose of hostile cruising, seem to be: 1st. That they should be laid under bond not to violate the treaties of the United States under the law of nations, in all cases where there is reason to suspect such a purpose on foot, including the cases of vessels taking on board arms and munitions of war, applicable to the equipment and armament of such vessels subsequent to their departure. 2d. To invest the Collectors, or other Revenue Officers, where there are no Collectors, with power to seize and detain vessels under circumstances indicating strong presumption of an intended breach of the law, the detention to take place until the order of the Executive, on a full representation of the facts had thereupon, can be obtained. The existing laws do not go to this extent. They do not authorize the demand of security in any shape, or any interposition on the part of the magistracyas a preventive, when there is reason to suspect an intention to commit the offense. They rest upon the general footing of punishing the offense merely where, if there be full evidence of the actual perpetration of the crime, the party is handed over, after trial, to the penalty denounced.3 The circumstances under which the temporary Neutrality Act of 1838 was passed, are fully stated in the Case of the United States, (p. 133,) and the act itself can be found in the documents presented therewith.1 Not less in contrast with the indifference and obstructions with which Her Majesty's Government met the earnest applications of the Government of the United States, in the stress in which it was placed, for an improvement of the Foreign Enlistment Act, are the solicitude and attention bestowed by Great Britain upon the amendment of this act after the rebellion was suppressed. The report of the Royal Commission, appointed to consider the subject, upon the defects of the old law and the necessary amendments to give it due vigor, leaves nothing to be said in condemnation of the persistency with which Great Britain clung to it during the whole period of the Rebellion. The promptitude of Parliament in enacting the new statute upon the breaking out of the recent war between Prussia and France, has already been referred to, and is exhibited in the extracts from the debate on its passage, set forth in Note B of the Appendix to this Argument. It is unnecessary to argue that the passage of the present Foreign Enlistment Act in May, 1861, following upon the Queen's Proclamation of neutrality, and its reasonable enforcement, would have precluded the scandals deplored by the British Government and the injuries suffered by the United States from the emission of the Alabama and her consorts from British ports. The text of the act carries its own argument. 1 Am. App., vol. iii, p. 541. 3 Ibid., p. 542. 2 Ibid., p. 542. Well might that eminent publicist, Phillimore, immediately after the passage of this act, "rejoice that the English Government has, by the statute of this year, strengthened the hands of the Executive, and given greater force and prominence to the maxim that, with respect to the external relations of the State, the will of the subject is bound up in that of his Government." 1 We confidently submit that, in refusing to amend the Foreign Enlistment Act in aid of the fulfillment of the duty prescribed by the Three Rules of the Treaty, Great Britain failed "to use due diligence to prevent” the injuries for which the United States demand redress from the justice of this Tribunal. Failure in due dili cape of the cruisers, VI. We pass now to an examination of the question of "the use of due diligence to prevent" the violation of its international duty to the United States, as exhibited in the course pur- gence after the sued toward the offending vessels by Great Britain, after their first escape from British ports, under the circumstances and consequences of inculpation for such escape which have already been considered. Except for the actual violence and depredations committed by the escaped cruisers after their emission from British ports, the injuries to the maritime property of the United States and the enormous connected losses to the national wealth would not have been inflicted. In every view, therefore, the subsequent career of the cruisers becomes of the highest importance to the practical determination by this tribunal of the matters in judgment before it. when again in Brit due diligence. 1. It is indisputable, that if, in respect to any one of the vessels incriminated, the escape of that vessel from the home port In not detaining should have been shown by Great Britain, to the satisfaction offending cruisers of the Tribunal, to have taken place in spite of "the use of ish ports, a want of due diligence to prevent" it, the principles of the Three Rules and of international law not inconsistent therewith will require that the same inquisition must be applied to any subsequent escape from another port of the British Empire, home or colonial, where the Government had an opportunity to lay hands upon and arrest her. Thus, suppose, for a moment, that the British Government was not in fault in respect of the first emission of the Florida from the port of Liverpool, her subsequent history at Nassau must then be examined. If her openly allowed departure from Nassau, "on an expedition of pillage, piracy, and destruction," (to quote Governor Bayley again,) was not in spite of the use of due diligence "to prevent the departure from its jurisdiction" of a vessel which had "been specially adapted in whole or in part within such jurisdiction to warlike use," such departure is, in itself, a failure by Great Britain to fulfill the duties set forth in the Three Rules of the Treaty, and must be so pronounced by the Tribunal. As the Florida, until after she left Nassau, remained in the same plight of a British vessel as when she left Liverpool, and did not receive a (socalled) "commission," or change her flag until afterward, there is no opportunity for cavil upon this point. 2. If, on the other hand, the original escape of any of the offending vessels from the home port shall inculpate Great Britain under the Rules of the Treaty, it is obvious that the original fault and accountability of Great Britain in the supposed case only enhance the obligation which, we have seen, requires "the use of due diligence to prevent" the subsequent departure from its jurisdiction of a vessel whose original escape from the home port has not been imputed to a default in such diligence. 1 Phill. Int. Law, (ed. 1871,) p. 28, preface. This obligation not 3. This obligation, whether in the alternative of the original escape of the offending vessel being for want of, or in spite of, the "use of due diligence to prevent" it, must endure until it has been fully and successfully met by the arrest and detention of the offending vessel, and her "expedition of pillage, piracy, and destruction" brought to a close. We have already considered whether this indisputable general proposition needs to be qualified by the impediment insisted determined by com- upon to its continued application, arising from the (somissioning a cruiser. called) "commission" as a public ship of a belligerent not recognized as a nation or a sovereign.1 We have shown that, in regard to public ships of recognized nations and sovereigns, this public character by comity withdraws them only from the jurisdiction of courts and process, and leaves them amenable to the political and executive power. We have shown that, in the case of public ships having no recognized state or sovereign behind them, the political and executive power deals with them, in its own discretion, with strong hand, in administration of every duty and every right pertaining to itself or owed to another nation. The grounds upon which we put our inculpation of Great Britain for dealing with these Rebel cruisers, as it did, after their commission as public ships, do not involve any contention as to whether or not judicial control should thereafter have been asserted over them. This domestic question of comity to the Rebel cruisers on their "expeditions of pillage, piracy, and destruction," may be at the discretion of a Government. But the pretensions that the international duty by which Great Britain was "bound" to the United States to use due diligence to prevent these offending vessels of guilty origin from departing from its ports when it was master of the opportunity so to do, was cut short and overmastered by the Rebel "commission," upon the reasons already given, we entirely deny. Not excluding escaped cruisers from British ports diligence. 4. It is conspicuous upon the proofs before the Tribunal that it was quite in the power of Her Majesty's Government, by arresting these offending vessels at their first, or even later, visits was a want of due to British ports after their successful fraud upon the neutral obligations of Great Britain in their original "escape," to have intercepted these "expeditions of pillage, piracy, and destruction," and at once repaired the misfortune or the failure of duty which had made such "escape" possible, and struck a fatal blow at the systematic project and preparation of such expeditions from the home ports of Great Britain. There was no adequate motive for, or benefit from, these guilty enterprises if the first escape were to leave the vessels homeless and shelterless upon the ocean, with no asylum in British ports except such as mere humanity offers against stress of storm and danger of shipwreck. Such asylum, upon the very motive on which it is yielded, upon the very plea upon which it is begged, the sentiment of humanity, would have exacted the abandonment of the career of violence, meditated or commenced, and a submission to the outraged authority of Great Britain, whose peace and dignity were compromised by the original escape from its ports. It is a notable fact that not one of these offending vessels ever returned to a home port of Great Britain, except the Georgia, to be dismantled and sold, and the Shenandoah to be surrendered to the Government of the United States. The Florida once, and the Alabama once, sought the commercial recruitment which the hospitality of the ports of France conceded them, on the plea of relâche forcée. They had not violated the neutrality of France in their original outfit, and had no resent 1 Supra, pp. |