Volume II Part 23 (1/2)
After the outbreak of the French Revolution in 1789, the Government of France, owing to the temporary inferiority of her naval force, openly and deliberately equipped privateers in our ports. These privateers captured British vessels in United States waters, and brought them as prizes into United States ports. These facts formed the basis of demands made upon the United States by the British plenipotentiary. The demands had reference, not to the accidental evasion of a munic.i.p.al law of the United States by a particular s.h.i.+p, but to a systematic disregard of international law upon some of the most important points of neutral obligation.
To these demands Mr. Jefferson, then Secretary of State under President Was.h.i.+ngton, thus replied on September 3, 1793:
”We are bound by our treaties with three of the belligerent nations, by all the means in our power, to protect and defend their vessels and effects in our ports or waters, or on the seas near our sh.o.r.es, and to recover and restore the same to the right owners when taken from them. If all the means in our power are used, and fail in this effort, we are not bound by our treaties with those nations to make compensation. Though we have no similar treaty with Great Britain, it was the opinion of the President that we should use toward that nation the same rule which, under this Article, was to govern us with other nations, and even to extend it to the captures made on the high-seas and brought into our ports, if done by vessels which had been armed within them.”
It will be observed that the justice of rest.i.tution, or compensation, for captures made on the high-seas and brought into our ports, is only admitted by President Was.h.i.+ngton upon one condition, which is expressed in these words: ”If done by vessels which had been armed within them.” The terms of the contract, which the Government of the United States endeavored to make at the s.h.i.+p-yards of England, were for the delivery of the s.h.i.+p or s.h.i.+ps of war, ”to be finished complete, with guns and everything appertaining.” The contract was not taken, as too little time was allowed for its execution. But, if entered into and executed, it would have been a direct violation of international law.
In the instance of our cruisers built in the ports of England, it will be observed that they went to sea without arms or warlike stores, and, at other ports than those of Great Britain, they were converted into s.h.i.+ps of war and put into commission by the authority of the Confederate Government. The Government of the United States a.s.serted that they were built in the ports of Great Britain, and thereby her duty of neutrality was violated, and the Government made responsible for the damages sustained by private citizens of the United States in consequence of her captures on the seas. To this declaration of Mr. Adams, Earl Russell (he had been made an earl) replied on September 14, 1863, thus:
”When the United States Government a.s.sumes to hold the Government of Great Britain responsible for the captures made by vessels which may be fitted out as vessels of war in a foreign port, because such vessels were originally built in a British port, I have to observe that such pretensions are entirely at variance with the principles of international law, and with the decisions of American courts of the highest authority; and I have only, in conclusion, to express my hope that you may not be instructed again to put forward claims which her Majesty's Government can not admit to be founded on any grounds of law or justice.”
On October 6, 1863, Mr. Seward, the Secretary of State of the United States Government, replied to this declaration of Earl Russell, saying:
”The United States do insist, and must continue to insist, that the British Government is justly responsible for the damages which the peaceful, law-abiding citizens of the United States [!] sustain by the depredations of the Alabama.”
Earl Russell answered on October 26, 1863, thus:
”I must request you to believe that the principle contended for by her Majesty's Government is not that of commissioning, equipping, and manning vessels in our ports to cruise against either of the belligerent parties--a principle which was so justly and unequivocally condemned by the President of the United States in 1793... . But the British Government must decline to be responsible for the acts of parties who fit out a seeming merchant-s.h.i.+p, send her to a port or to waters far from the jurisdiction of British courts, and there commission, equip, and man her as a vessel of war.”
The duty of neutral nations relative to the supply of warlike stores is expressed in these words:
”It is not the practice of nations to undertake to prohibit their own subjects by previous laws from trafficking in articles contraband of war. Such trade is carried on at the risk of those engaged in it, under the liabilities and penalties prescribed by the law of nations or particular treaties.” [59]
We now quote from the great American commentator on the Const.i.tution of the United States and on the law of nations:
”It is a general understanding that the powers at war may seize and confiscate all contraband goods, without any complaint on the part of the neutral merchant, and without any imputation of a breach of neutrality in the neutral sovereign himself. It was contended on the part of the French nation, in 1796, that neutral governments were bound to restrain their subjects from selling or exporting articles contraband of war to the belligerent powers. But it was successfully shown, on the part of the United States, that neutrals may lawfully sell at home to a belligerent power, or carry themselves to the belligerent powers, contraband articles, subject to the right of seizure _in transitu_. This right has been explicitly declared by the judicial authorities of this country [United States]. The right of the neutral to transport, and of the hostile power to seize, are conflicting rights, and neither party can charge the other with a criminal act.” [60]
In accordance with these principles, President Pierce's message of December 31, 1855, contains the following pa.s.sage:
”In pursuance of this policy, the laws of the United States do not forbid their citizens to sell to either of the belligerent powers articles contraband of war, to take munitions of war or soldiers on board their private s.h.i.+ps for transportation; and, although in so doing the individual citizen exposes his property or person to some of the hazards of war, his acts do not involve any breach of international neutrality, nor of themselves implicate the Government.”
Perhaps it may not be out of place here to notice the charge of the Lord Chief Baron of the Exchequer to the jury in the case of the Alexandra, a vessel of one hundred and twenty tons, under construction at Liverpool for our Government. The case came on for trial on June 22, 1863, in the Court of Exchequer, sitting at _nisi prius_, before the Lord Chief Baron and a special jury. After it had been summed up, the Lord Chief Baron said:
”This is an information on the part of the Crown for the seizure and confiscation of a vessel that was in the course of preparation but had not been completed. It is admitted that it was not armed, and the question is, whether the preparation of the vessel in its then condition was a violation of the Foreign Enlistment Act. The main question you will have to decide is this: Whether, under the seventh section of the act of Parliament, the vessel, as then prepared at the time of seizure, was liable to seizure? The statute was pa.s.sed in 1819, and upon it no question has ever arisen in our courts of justice; but there have been expositions of a similar statute which exists in the United States. I will now read to you the opinions of some American lawyers who have contributed so greatly to make law a science. [His lords.h.i.+p then read a pa.s.sage from Story and others.]
These gentlemen are authorities which show that, when two belligerents are carrying on a war, a neutral power may supply, without any breach of international law and without a breach of the Foreign Enlistment Act, munitions of war--gunpowder, every description of arms, in fact, that can be used for the destruction of human beings.
”Why should s.h.i.+ps be an exception? I am of opinion, in point of law, they are not. The Foreign Enlistment Act was an act to prevent the enlistment or engagement of his Majesty's subjects to serve in foreign armies, and to prevent the fitting out and equipping in his Majesty's dominions vessels for warlike purposes without his Majesty's license. The t.i.tle of an act is not at all times an exact indication or explanation of the act, because it is generally attached after the act is pa.s.sed. But, in adverting to the preamble of the act, I find that provision is made against the equipping, fitting out, furnis.h.i.+ng, and arming of vessels, because it may be prejudicial to the peace of his Majesty's dominions.
”The question I shall put to you is, Whether you think that vessel was merely in a course of building to be delivered in pursuance of a contract that was perfectly lawful, or whether there was any intention in the port of Liverpool, or any other English port, that the vessel should be fitted out, equipped, furnished, and armed for purposes of aggression. Now, surely, if Birmingham, or any other town, may supply any quant.i.ty of munitions of war of various kinds for the destruction of life, why object to s.h.i.+ps? Why should s.h.i.+ps alone be in themselves contraband? I asked the Attorney-General if a man could not make a vessel intending to sell it to either of the belligerent powers that required it, and which would give the largest price for it, would not that be lawful? To my surprise, the learned Attorney-General declined to give an answer to the question, which I think a grave and pertinent one. But you, gentlemen, I think, are lawyers enough to know that a man may make a vessel and offer it for sale. If a man may build a vessel for the purpose of offering it for sale to either belligerent party, may he not execute an order for it?
That appears to be a matter of course. The statute is not made to provide means of protection for belligerent powers, otherwise it would have said, 'You shall not sell powder or guns, and you shall not sell arms'; and, if it had done so, all Birmingham would have been in arms against it. The object of the statute was this: that we should not have our ports in this country made the ground of hostile movements between the vessels of two belligerent powers, which might be fitted out, furnished, and armed in these ports. The Alexandra was clearly nothing more than in the course of building.
”It appears to me that, if true that the Alabama sailed from Liverpool without any arms at all, as a mere s.h.i.+p in ballast, and that her armament was put on board at Terceira, which is not in her Majesty's dominions, then the Foreign Enlistment Act was not violated at all.”
After reading some of the evidence, his lords.h.i.+p said:
”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 s.h.i.+p 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 been broken.”
The jury immediately returned a verdict for the defendants. An appeal was made, but the full bench decided that there was no jurisdiction.
Against this decision an appeal was taken to the House of Lords, and there dismissed on some technical ground.
Sufficient has been said to show that the action of the Confederate Government relative to these cruisers is sustained and justified by international law. The complaints made by the Government of the United States against the Government of Great Britain for acts involving a breach of neutrality find no support in the letter of the law or in its principles, and were conclusively answered by the interpretations of _American jurists_. At the same time they are condemned by the antecedent acts of the United States Government.