contend have been recognized by the statesmen, the jurists, the publicists, and the legislators of Great Britain; that they have the approbation of the most eminent authorities upon the continent of Europe; and that they have been regarded by the other powers of Europe in their dealing with each other." The truth is, that the alleged princi[23] ples from which Her Majesty's government has declared its dissent were never before seriously asserted, and never admitted or recognized by any power in Europe or America; that they have the support of no publicist of authority; that they are unknown in Great Britain; and were, up to the time when these claims were brought forward, equally unknown in the United States.2 Case of the United States, p. 202. The following extract from Reddie's "Researches in Maritime and International Law," (vol. ii, p. 210,) is apposite to the general question how far neutral governments are bound to interfere actively for the purpose of restraining their subjects from acts falling within the prohibitions of international law. It is an abstract of the views expressed in the "Considérations sur les Droits Réciproques des Puissances Belligérantes et des Puissances Neutres sur Mer," of Tetens, a work which Mr Reddie describes as "the most free from national bias, and most impartial exposition of the general principles of maritime international law which has appeared in recent times:` "It is a wise foresight for nentral governments to obviate, during war, as far as possible, all illegal conduct on the part of their subjects, for the double advantage of preserving them from risks, and of preventing the suspicions of belligerents against the traders who sail under neutral flags. The conduct exhibited by several individuals in a neutral nation produces naturally a presumption for or against their fellow-countrymen, which seldom fails to have consequences favorable or unfavorable to the vessels of that nation which the belligerents encounter. There is also a political reason for neutral governments watching their subjects in this respect. They cannot, indeed, manifest more authentically their perfect neutrality than by clear and precise ordinances for their commerce and navigation during war, and by a rigorous police, severely directed against those who contravene them. The more they exert themselves to restrain fraud, the more they are in a state to protect their loyal subjects, and to interpose with success in the cases of just claims made by the latter against the cruisers of the belligerent powers. "What neutrals, however, may do in this respect does not arise from any right which imposes on them the obligation of maintaining a more special surveillance over their subjects during war than they are in the habit of doing during peace; nor to exereise a more extensive inspection over the legality of their conduct toward belligerents than that which is prescribed by law. In even allowing them to act entirely as they choose, they in no manner infringe the rights of the belligerents, provided they do not pretend otherwise to protect their contraventions. But such indifference may inspire belligerents with unfavorable opinions, which it may be as well to prevent, especially if it be preponderating powers who are at war. "From neutral governments not being under an obligation to obviate the abuses of their subjects, it follows that belligerents, whatever condescension they may have to expect from them for that purpose, cannot reasonably require them to extend their measures beyond what is in practice in these same neutral countries for preventing frauds being committed on their own customs, and for checking the other deceitful contrivances for evading payment of the revenues of the state. The maximum of precaution, in this case, is to maintain and enforce the observance of neutrality in vessels and cargoes with the same diligence and exactness as are exercised in inquiries and other proceedings relative to taxes, or imposts and customs. He who does as much to prevent a wrong meditated against another as he does for his own protection, satisfies every just and reasonable expectation on the part of that other. Perhaps, however, more might be done, if it were wished, completely to attain the object. In time of war special instructions might be ordered; tribunals of inquiry might be established against the frauds of merchants and shipowners, and more rigor might be shown in the punishment of their delinquencies. But this cannot be demanded on the one side, and, on the other, it might be difficult to grant it, because there might result from it consequences inconsistent with the general spirit of the prohibitory laws of the state. At least, this care must be left to the neutral governments, to whom alone it belongs to judge what it may be proper for them to do with reference to the circumstances of the war." [24] *PART III. PRECEDENTS APPEALED TO BY THE UNITED STATES. In aid of its view of neutral duties and liabilities, the Government of the United States has appealed to several precedents repealed to by the Corded in history. These are— Precedents ap United States. 1. A correspondence which passed between the governments of Spain and Sweden, in 1825, relative to a sale of certain Swedish vessels of war, which the Spanish government suspected of having been bought for the service of Mexico. 2. The correspondence between the British minister and the Government of the United States, in 1793, respecting the depredations practiced on British commerce by privateers under the French flag, fitted out in American ports; the measures adopted in consequence by the Government of the United States; and the treaty of 19th November, 1794. 3. The complaints and claims urged by Spain and Portugal against the United States, on account of like depredations on the subjects and shipping of those two powers, by privateers fitted out within the United States; and the subsequent treaty with Spain of 22d February, 1819. Some of these transactions have been so insufficiently presented in the case of the United States that it becomes necessary to recall them, so far as may be necessary to set the facts in their true light. It will then be seen that, far from lending any support to the claims of the United States, they, on the contrary, militate against those claims. It will be necessary, also, since the Government of the United States has invoked against Great Britain the history of American neutrality, to make some additions to a narrative which would otherwise be very imperfect. Case of the Swed 1. CASE OF THE SWEDISH SHIPS.1 This affair calls for scarcely any remark on the part of Great Britain. It was a sale, by a neutral government, of a ship of the line 1sh ships, 1825. and two frigates; and there was reason to suspect that the trading firm who had become the nominal purchasers had bought them for the service of the republic of Mexico, then at war with Spain. The contract of sale contained a clause, enabling either party to rescind it on payment of a stipulated sum. The transaction was uncompleted, and still within the power of the Swedish government. The government of Spain remonstrated warmly, and induced the ministers of other powers resident at the Swedish court to support its representations. The narrative introduced into the case of the United States is taken from Cussy's Phases et Causes Célèbres du Droit Maritime, vol. ii, p. 402. There is a better account, containing the official correspondence, (which is wanting in Cussy,) in Martens's Causes Célèbres du Droit des Gens, vol. v, p. 229, ed. 1861. The government of Sweden insisted on its right to complete the sale. At the end of four months, after much correspondence, the contract was rescinded on the request of the purchasers, who alleged that the vessels had been detained till too late in the year by reason of the recall of certain officers and seamen of the Swedish navy, who had previously obtained leave to enter the merchant service, and were to be employed on board of them. The stipulated payment was excused; and the Swedish government undertook to re-imburse the purchasers for money laid out on the repair and equipment of the ships. That the government of Sweden was right in not completing the sale, after circumstances of suspicion had been brought to its knowledge by Spain, there can be no doubt. It has always been conceded that a sale by a neutral government to a belligerent, directly or indirectly, of arms or munitions of war, or ships of war, stands on ground quite different from the mere forbearance or omission to prohibit such transactions on the part of private individuals who are its subjects. In the latter case no duty is violated. But a government which sells or furnishes arms, gives or lends money, to a belligerent, becomes to that extent a participant in the war.1 [25] *In the case of the Anglo-Chinese flotilla,, which has been already stated to the arbitrators, it will have been seen that, under somewhat similar circumstances, Her Britannic Majesty's government did not hesitate to do far more than the government of Sweden. The differences are, that the vessels of the flotilla had not been the property of the British government, and had only been officered and manned by its permission; that no circumstances of suspicion had been suggested to the government, but merely an apprehended possibility; that Great Britain acted immediately, without any correspondence or delay; and that the sacrifice she undertook to make amounted, not, as in the Swedish case, to about 60,000 francs, but to above 2,509,000.2 Great Britain has certainly nothing to fear from this comparison. The purchase by Her Majesty's government, at the price of £220,000, of the two iron-clads seized in 1863, has been mentioned in the British case, and it has been stated (as the fact is) that in agreeing to this purchase the government was mainly actuated by anxiety to prevent by any means in its power, however costly, vessels of so formidable a character, constructed in a British port, from passing, directly or indi rectly, into the hands of a belligerent.3 The case of the old dispatch-boat Victor, sold out of Her Majesty's navy in 1863, will be hereafter referred to. There were in that case no circumstances to excite suspicion, and no representation was made by the minister of the United States to Her Majesty's government. When it was discovered, however, that this vessel had passed into the hands of a belligerent, and that endeavors had been made to fit her out as a cruiser, orders were immediately given that no more ships should be sold out of the navy during the continuance of the war. This decision was followed in the case of two vessels, (the Reynard and Alacrity,) for which an advantageous offer was made to the admiralty in December, 1863, and which it was desirable to dispose of. "It would be better," Earl Russell wrote, "at the present time not to sell any vessels to private firms, as it is impossible to obtain any sufficient assurance in 1 See Heffter, cited below, p. 145. This distinction is recognized by all writers. There is reason to believe, however, from facts which have become notorious, that it was overlooked by the American Government during the late war between France and Germany. Case of Great Britain, p. 47. * Ibid., p. 44. * Infra, p. 122. regard to what might be done with vessels when sold out of the navy."1 2. VIOLATIONS OF AMERICAN NEUTRALITY IN 1793 AND 1794. 2. Violations of 1793 and 1794. In the year 1793 the neutrality of the United States was infringed, not only by captures, within their territorial waters, of American neutrality in British vessels by hostile armed ships, but by repeated and successful attempts to fit out privateers for cruising, under the French flag, against Great Britain, then at peace with the United States and at war with France. It must be here observed that the example of this mode of carrying on maritime war had been set by the United States themselves. The agents who were sent to France in 1776 for the purpose of gaining for the United Colonies the aid and support of that power in their struggle for independence, succeeded in procuring and arming many privateers, which they dispatched from French ports, with orders to cruise against Great Britain, and from which British commerce suffered severely. It was natural to expect that when, in February, 1793, the French republic declared war against Great Britain, France in her turn should try to imitate and profit by that example. On the 8th April, 1793, a French envoy arrived at Charleston; he immediately proceeded to fit out privateers, and four were fitted out, armed, manned, and commissioned within American jurisdiction before the end of the month. These acts were open and undisguised. Houses of rendezvous were opened at Charleston for collecting crews, the vessels were suffered to pass the fort under a written permission from the governor of South Carolina, and there was reasonable ground to believe that, though nominally owned by Frenchmen, they were really the property of American citizens. These vessels afterward brought in prizes, which were condemned by pretended prize courts, held within the jurisdiction of the United States. Applying to the United States the stringent rule which that power now seeks to apply to Great Britain, the British government might undoubtedly have insisted that these were violations of neutrality which the American Government was bound to prevent; that no imperfections in its municipal law or executive organization could be pleaded in its defense; and that the United States were liable for all the injuries which the failure to prevent them might occasion to Great Britain. The British minister, however, limited himself to the request that the American Government would "pursue such measures as to its wisdom may appear the best calculated for repressing such practices in future, and for restoring to their rightful owners any captures which these particular privateers may attempt to bring into the ports of the United States." 2 [26] *In the month of May, one of the privateers unlawfully fitted out at Charleston, (the Citoyen Genêt,) came into the port of Philadelphia, which was the seat of the Government of the United States, bringing a prize. The Citoyen Genêt was not seized or detained by the Government of the United States. After some correspondence with the French envoy, Mr. Jefferson, then Secretary of State, informed him on the 5th June, 1793, that, in the opinion of the President, "the arming and equipping vessels in the 1 Appendix to British case, vol. v, p. 201. ports of the United States to cruise against nations with which they were at peace was incompatible with the territorial sovereignty of the United States; that it made them instrumental to the annoyance of those nations, and thereby tended to compromise their peace; and that he thought it necessary, as an evidence of good faith to them, as well as a proper reparation to the sovereignty of the country, that the armed vessels of this description should"-not be detained in, but-"depart from the ports of the United States." The British minister was on the same day informed that "the moment it was known, the most energetic orders were sent to every State and port in the Union, to prevent a repetition of the accident," and that persons accused of being participators in the act had been committed for trial. The restitution of the prizes was refused: The principal agents in this transaction were French citizens. Being within the United States at the moment a war broke out between their own and another country, they determined to go into its defense; they purchase, arm, and equip a vessel with their own money, man it themselves, receive a regular commission from their nation, depart out of the United States, and then commence hostilities by capturing a vessel. If under these circumstances the commission of the captors was valid, the property, according to the laws of war, was by the capture transferred to them, and it would be an aggression on their nation for the United States to rescue it from them, whether on the high seas or on coming into their ports. If the commission was not valid, and consequently the property not transferred by the laws of war to the captors, then the case would have been cognizable in our courts of admiralty, and the owners might have gone thither for redress. So that on neither supposition would the executive be justifable in interposing." The American Government thus refused to take any measures even for the restitution of prizes actually brought into their ports by privateers equipped and commissioned therein. The acts complained of, it was added, could not be imputed to the Government, which could not have known, and therefore could not have prevented them. The British minister, in reply, (7th June, 1793,) represented that these acts were notorious and unconcealed, and well known to the local authorities. He expressed his concern at the decision at which the Government had arrived, and added: For all these reasons, notwithstanding the deference which he shall ever preserve for the sentiments of this Government, the undersigned conceives himself justified in having entertained a confidence that the Government of the United States would not only have repressed this insult offered to its sovereignty, but also that the aggression on the subjects of the Crown of Great Britain would have been repaired by the restitution of vessels thus captured."3 At the date of Mr. Jefferson's letter, and for a considerable time afterward, it was a disputed question whether the courts of the United States had jurisdiction to inquire into captures made under the circumstances above mentioned, or to order restitution; and this question remained unsettled until the jurisdiction was affirmed by a judgment of the Supreme Court, delivered on the 18th February, 1794. Owners of vessels unlawfully captured were in the mean time debarred from any redress; and to refuse restitution, unless through the medium of the courts, was to refuse it altogether. After this a vessel was fitted out and armed as a French privateer in the port of Philadelphia itself, under the name of the Little Democrat. The Government did not seize or detain her; it relied on an expectation that the French envoy would not permit her to sail. She sailed, however, and engaged in depredations on British commerce. Report of the Neutrality Law Commissioners, p. 19; Appendix to British case, vol. iii. 2 Appendix to British case, vol. v, p. 242. *Ibid., p. 244. 画 |