Tribunal of Arbitration the publicly expressed sentiments of the leading members of the British Cabinet of that day. Lord Palmerston was the recognized head of the Government. Earl Russell, who, at the commencement of the insurrection, sat in the House of Commons as Lord John Russell, was during the whole time Her Majesty's Principal Secretary of State for Foreign Affairs, specially charged with the expression of the views and feelings of Her Majesty's Government ou these questions. Both were among the oldest and most tried statesmen of Europe. Mr. Gladstone, the present distinguished chief of the Government, was then the Chancellor of the Exchequer; and [98] Lord Campbell, well known in both hemispheres as a lawyer and as a lover of letters, sat upon the woolsack when the contest began. Lord Westbury, who succeeded him in June, 1861, was the chief counselor of the policy pursued by the British Goverment. These gentlemen were entitled to speak the voice of the governing classes of the Empire; and the United States have been forced with sincere regret to the conviction that they did express the opinions and wishes of much of the cultivated intellect of Great Britain. The United States would do great injustice, however, to the senti ments of their own people did they fail to add, that some of the most eloquent voices in Parliament were raised in behalf of the principles of freedom which they represented in the contest; and that members of the governing classes most elevated in rank and distinguished in intellect, and a large part of the industrial classes, were understood to sympathize with them. They cannot, however, shut their eyes to the fact, and they must ask the Tribunal of Arbitration to take note, that, with the few exceptions referred to, the leading statesmen of that country, and nearly the whole periodical press and other channels through which the British cultivated intellect is accustomed to influence public affairs, *sustained the course of the existing Government in the [99] unfriendly acts and omissions which resulted so disastrously to the United States. The United States complain before this Tribunal only of the acts and omissions of the British Government. They refer to the expressions and statements from unofficial sources as evidence of a state of public opinion, which would naturally encourage the members of that Government in the policy and acts of which the United States complain. It is not worth while to take up the time of the Tribunal of Arbitration, by an inquiry into the reasons for this early and long-continued unfriendliness of the British Government, toward a goverment which was supposed to be in sympathy with its political and moral ideas, and toward a kindred people with whom it had long maintained the attitude of friendship. They may have been partly political, as expressed in Parliament by an impetuous member, who spoke of the bursting of the bubble republic,1 (for which he received a merited rebuke from Lord John Russell)2; or they may have been those declared without rebuke at a later date in the House of Commons by the present Marquis of Salisbury, then Lord Robert Cecil, when he said that "they [the people of the Southern States] were the natural allies of this [100] country, as great producers of the articles we needed and great consumers of the articles we supplied. The North, on the other hand, kept an opposition-shop in the same departments of trade as ourselves;" or they may have been those announced by Earl Russell last year, when saying,1 1 It was the great object of the British Government to preserve for the subject the security of trial by jury, and for the nation the legitimate and lucrative trade of ship-building. Conclusions. Without pursuing an inquiry in this direction, which, at the best, would be profitless, the United States invite the careful attention of the Arbitrators to the facts which appear in the previous pages of this Case. In appoaching the consideration of the third branch of the subjects herein discussed, in which the United States will endeavor to show that Great Britain failed in her duties toward the United States-as those duties will be defined in the second branch thereof-the Tribunal of Arbitration will find in these facts circumstances which could not but influence the minds of the members of Her Majesty's Government, and induce them to look with disfavor upon efforts to [101] repress the attempts of British subjects, and of other persons, to violate the neutrality of British soil and waters in favor of the rebels. Some of the members of the British Government of that day seem to have anticipated the conclusion which must inevitably be drawn from their acts, should the injuries and wrongs which the United States have suffered ever be brought to the adjudication of an impartial tribunal. Lord Westbury (appointed Lord High Chancellor on the death of Lord Campbell, in June, 1861) declared, in the House of Lords, in 1868, that "the animus with which the neutral Powers acted was the only true criterion. The neutral Power might be mistaken; it might omit to do something which ought to be done, or direct something to be done which ought not to be done; but the question was whether, from beginning to end, it had acted with sincerity and with a real desire to promote and preserve a spirit of neutrality. * He [Mr. Seward] said, in effect, Whether you were a sincere and loyal. neutral was the question in dispute, and that must be judged from a view of the whole of your conduct. I do not mean to put it merely upon the particular transaction relative to the Alabama. I insist upon it in that case undoubtedly; 6 * * but I contend that, from beginning to end, you had an undue [102] preference and predilection for the Confederate States; *that you were therefore not loyal in your neutrality; and I appeal to the precipitancy with which you issued your Proclamation, thereby involv ing a recognition of the Confederate States as a belligerent power, as a proof of your insincerity and want of impartial attention.' And now, could we prevent him from using that document for such a purpose? How unreasonable it was to say, when you go into arbitration, you shall not use a particular document, even as an argument upon the question whether there was sincere neutrality or not.” 2 Such is the use which the United States ask this Tribunal to make of the foregoing evidence of the unfriendliness and insincere neutrality of the British Cabinet of that day. When the leading members of that Cabinet are thus found counseling in advance with France to secure a joint action of the two governments, and assenting to the declaration of a state of war between the United States and the insurgents, before they could possibly have received intelligence of the purposes of the Government of the United States; when it is seen that the British Secretary of State for Foreign Affairs advises the [103] representatives of the insurgents as to the course to be *pursued to obtain the recognition of their independence, and at the same 1 Earl Russell's Speeches and Dispatches, Vol. II, page 266. 2 Hansard's Parliamentary Debates, 3d series, Vol. CXCI, pages 347, 348. time refuses to await the arrival of the trusted representative of the United States before deciding to recognize them as belligerents; when he is found opening negotiations through Her Majesty's diplomatic representative at Washington with persons in rebellion against the United States; when various members of the British Cabinet are seen to comment upon the efforts of the Government of the United States to suppress the rebellion in terms that indicate a strong desire that those efforts should not succeed, it is not unreasonable to suppose that, when called upon to do acts which might bring about results in conflict with their wishes and convictions, they would hesitate, discuss, delay, and refrain-in fact, that they would do exactly what in the subsequent pages of this paper it will appear that they did do. THE DUTIES WHICH GREAT BRITAIN, AS A NEURTAL, SHOULD HAVE OBSERVED TOWARD THE UNITED STATES. tion of obligation nations. The second branch of the subject, in the order in which the United States desire to present it to the Tribunal of Arbitration, The Queen's Procinvolves the consideration of the duties which Great Brit- lamation a recogniain, as a neutral, should have observed toward the United under the law of States during the contest. However inconsiderately and precipitately issued, the Proclamation of Neutrality recognized the obligation, under the law of nations, to undertake the performance of those duties, and it becomes important to have a correct understanding of their character. Great Britain has gations in various ways. In attempting to define these duties, it is natural, first, to endeavor to ascertain whether Great Britain itself has, by legislative or official acts, recognized any such obligations; and next recognized ita oblito inquire whether the canons of international law, as expounded by publicists of authority, demand of a neutral, the observance of any other or broader rules than have been so recognized. The United States will pursue the examination in this order. They find, first, an evidence of Great Britain's conception of its [106] duties as a neutral in the Foreign *Enlistment Act Recognized by the which was enacted in 1819, and was in force during Foreign Enlistment the whole of the Southern rebellion. Act of 1819. Municipal laws deerminent in perform signed to aid a govnge of international ance duties. It must be borne in mind, when considering the municipal laws of Great Britain, that, whether effective or deficient, they are but machinery to enable the Government to perform the international duties which they recognize, or which may be incumbent upon it from its position in the family of nations. The obligation of a neutral state to prevent the violation of the neutrality of its soil is independent of all interior or local law. The municipal law may and ought to recognize that obligation; but it can neither create no destroy it, for it is an obligation resulting directly from International Law, which forbids the use of neutral territory for hostile purpose.1 The local law, indeed, may justly be regarded as evidence, as far as it goes, of the nation's estimate of its international duties; but it is not to be taken as the limit of those obligations in the eye of the law of nations. 2 It is said by Lord Tenterden, the distinguished Secretary of the British High Commissioners, in his memorandum attached History of Foreign to the report of Her Majesty's Commissioners upon Enlistment Act of [107] the neutrality law,3 *that the neutrality law of the United States formed the foundation of the neutrality of England." "The act for the amendment of the neutralty laws," he says, Ortolan, Diplomatie de la mer, vol. 2, page 215. 2 Vol. IV, page 79. 1819. 3 Vol. IV, page 93, Appendix No. 3, by Mr. Abbott, now Lord Tenterden. 66 was introduced by Mr. Canning on the 10th of June, 1819, in an eloquent speech, in the course of which he said, 'It surely could not be forgotten that in 1793 this country complained of various breaches of neutrality (though much inferior in degree to those now under consideration) committed on the part of subjects of the United States of America. What was the conduct of that nation in consequence? Did it resent the complaint as an infringement of its independence? Did it refuse to take such steps as would insure the immediate observance of neutrality? Neither. In 1794, immediately after the application from the British Government, the Legislature of the United States passed an act prohibiting, under heavy penalties, the engagement of American citizens in the armies of any belligerent Power. Was that the only instance of the kind? It was but last year that the United States passed an act by which the act of 1794 was confirmed in every respect, again prohibiting the engagement of their citizens in the service of any foreign Power, and pointing distinctly to the service of Spain or the South American Provinces." It appears from the whole [108] tenor of the debate which preceded the passage of the act that its sole purpose was to enable the Executive to perform with fidelity the duties toward neutrals which were recognized as imposed upon the Government by the Law of Nations. Great Britain the duties recognized The United States assume that it will be conceded that Great Britain was bound to perform all the duties of a neutral toward the bound to perform United States which are indicated in this statute. If this by that act. obligation should be denied, the United States beg to refer the Tribunal of Arbitration to the declaration of Earl Russell in his communication to Mr. Adams of August 30, 1865, where he lays down with confidence the following proposition:" "That the Foreign Enlistment Act is intended in aid of the duties * of a neutral nation."3 They also refer to Lord Palmerston's speech in the House of Commons, July 23, 1863,4 in which he says: "The American Government have a distinct right to expect that a neutral will enforce its municipal law, if it be in their favor.” Indeed, Great Britain is fully committed to this principle in its dealings with other Powers. Thus, during the Crimean war, Her Majesty's Government, feeling aggrieved at the acts of the Prussian Government in tolerating the furnishing of arms and other contraband of war to Russia, were *advised by the Law Officers of the Crown [109] that they might justly remonstrate against violations of Prussian law.5 After these declarations by British authorities, it will scarcely be contended that the United States had not the right to expect, and to demand of Great Brita in the performance of the measure of duty recognized by existing municipal laws, however inadequate those laws might be as an expression of international obligations. Duties recognized inent Act of 1819. The British Foreign Enlistment Act of 1819 consisted of twelve sections, written in the verbiage which the customs of Engby Foreign list- land make necessary in the laws providing for the punishment of crimes. These sections relate to four distinct subjects. First, they repeal all former statutes; secondly, they define the acts which the British legislators regarded as acts which a neutral ought not to permit to be done within its jurisdiction; thirdly, they provide modes for prosecuting persons found guilty of committing the acts 1 Vol. IV, pages 123, 124. 3 Vol. III, page 550. Earl Grauville to Count Bernstorff, 2 Vol. III, page 549. 4 Vol. V, page 695. September 15, 1870. |