THE DUTIES WHICH GREAT BRITAIN, AS A NEURTAL, SHOULD HAVE OBSERVED TOWARD THE UNITED STATES. tion of obligation nations. law of 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 Proc. involves the consideration of the duties which Great Brit- lamation a recogni ain, as a neutral, should have observed toward the United under the 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. gations in various In attempting to define these duties, it is natural, first, to endeavor to ascertain whether Great Britain itself has, by legislative Great Britain has or official acts, recognized any such obligations; and next recognized its oblito inquire whether the canons of international law, as ex- ways. pounded 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. erument in perform. duties. It must be borne in mind, when considering the municipal laws of Great Britain, that, whether effective or deficient, they are Municipal laws debut machinery to enable the Government to perform the signed to aid a govinternational duties which they recognize, or which may ance of international 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. 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, that the neutrality law of the 3 * 1819. United States formed the foundation of the neutrality of England. "The act for the amendment of the neutralty laws," he says, 66 was 1 Ortolan, Diplomatie de la mer, vol. 2, page 215. 2 Vol. IV, page 79. 3 Vol. IV, page 93, Appendix No. 3, by. Mr. Abbott, now Lord Tenterden. 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 2 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.": They also refer to Lord Palmerston's speech in the House of Commons, July 23, 1863, 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 Britain 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 ment Act of 1819. The British Foreign Enlistment Act of 1819 consisted of twelve sections, written in the verbiage which the customs of Engby Foreign Enlist 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 Granville to Count Bernstorff, 2 Vol. III, page 549. 4 Vol. V, page 695. September 15, 1870. which are prohibited by the statute, and they indicate the punishments which may be inflicted upon them when convicted; fourthly, they exempt certain parts of the Empire from the operation of the statute.1 [110] *This Tribunal need take no notice of the penal portions of the statute, which affect only the relations between the State and those who owe allegiance to its laws by reason of residence within its territory. The United States will therefore confine themselves to attempting to deduce from the statute the definitions of the principles, and the duties, which are there recognized as obligatory on the nation in its relations with other Powers. The adjudicated cases often disregard the distinction between the duties of a neutral, however defined, and the proceedings in its courts against persons charged as criminals for alleged violations of its laws for the preservation of neutrality. Even some of the best publicists, in referring to this class of decisions, have not always remembered that, while in the former we have only to do with principles of public law, in the latter we are dealing with the evidence necessary for the conviction of an offender. Bearing this distinction in mind, the Tribunal of Arbitration may be able to reconcile many apparently conflicting authorities, and arrive at just conclusions. The acts which, if committed within the territory of the neutral, are to be regarded as violations of its international duties, are enumerated in the second, fifth, sixth, seventh, and eighth sections of the statute. [111] *Translating this statutory language into the expressions com monly employed by publicists and writers on International Law, this statute recognizes the following as acts which ought to be prevented within neutral territory during time of war. 1. The recruitment of subjects or citizens of the neutral, to be employed in the military or naval service of a foreign Government or of persons assuming to exercise the powers of government over any part of foreign territory; or the acceptance of a commission, warrant, or appointment for such service by such persons; or the enlisting or agreeing to enlist in such service; the act in each case being done without the leave or license of the Sovereign. 2. The receiving on board a vessel, for the purpose of transporting from a neutral port, persons who may have been so recruited or commissioned; or the transporting such persons from a neutral port. Authority is given to seize the vessels violating these provisions. 3. The equipping, furnishing, fitting out, or arming a vessel, with intent or in order that it may be employed in the service of such foreign Government, or of persons assuming to exercise the powers of gov ernment over any part of a foreign country, as a transport or [112] store-ship, or to *cruise or carry on war against a power with which the neutral is at peace; or the delivering a commission for such vessel, the act in each case being done without the leave or license of the Sovereign. 4. The augmenting the warlike force of such a vessel of war by adding to the number of guns, by changing those on board for other guns, or by the addition of any equipment of war, if such vessel at the time of its arrival in the dominions of the neutral was a vessel of war: in the service of such foreign Government, or of such persons, the act being done without the leave or license of the Sovereign.2 1 Vol. IV, page 86. 2 It may interest the members of the Tribunal of Arbitration to see in this connection an abstract of the acts which are made penal by the United States Neutrality Law of 1818. The law itself will be found in Vol. IV, pages 90-92. The abstract is S. Ex. 31—4 Royal Commission listment Act of 1819. *During the insurrection, as will be seen hereafter, this act [113] was, by the construction of the English courts, to revise Foreign En- stripped of its effective power. The United States repeatedly and in vain invited Her Majesty's Government to amend it. Although these calls proved abortive during the contest with the South, the appalling magnitude of the injury which had been inflicted by British-built and British-manned cruisers upon the commerce and industry of a nation with which Great Britain was at peace appears to have awakened its senses, and to have impelled it to take some steps toward a change. In January, 1867, the Queen's Commission was issued to some of the most eminent of the British lawyers and judges, authorizing them to inquire into and consider the character, working, and effect of the laws of the Realm, available for the *enforcement of neutrality, during the existence of hostilities be- [114] taken from President Grant's Proclamation of Neutrality in the late Franco-German war, dated October 8, 1870. "By the act passed on the 20th day of April, A. D. 1818, commonly known as the 'Neutrality Law,' the following acts are forbidden to be done, under severe penalties, within the territory and jurisdiction of the United States, to wit: "1. Accepting and exercising a commission to serve either of the said belligerents by land or by sea against the other belligerent. "2. Enlisting or entering into the service of either of the said belligerents as a soldier, or as a marine or seaman on board of any vessel of war, letter of marque, or privateer. "3. Hiring or retaining another person to enlist or enter himself in the service of either of the said belligerents as a soldier, or as a marine or seaman on board of any vessel of war, letter of marque, or privateer. "4. Hiring another person to go beyond the limits or jurisdiction of the United States with intent to be enlisted as aforesaid. "5. Hiring another person to go beyond the limits of the United States with the intent to be entered into service as aforesaid. "6. Retaining another person to go beyond the limits of the United States with intent to be enlisted as aforesaid. "7. Retaining another person to go beyond the limits of the United States with intent to be entered into service as aforesaid. (But the said act is not to be construed to extend to a citizen or subject of either belligerent who, being transiently within the United States, shall, on board of any vessel of war, which, at the time of its arrival within the United States, was fitted and equipped as such vessel of war, enlist, or enter himself, or hire, or retain another subject or citizen of the same belligerent, who is transiently within the United States, to enlist, or enter himself to serve such belligerent on board such vessel of war, if the United States shall then be at peace with such belligerent.) "8. Fitting out and arming, or attempting to fit out and arm, or procuring to be fitted out and armed, or knowingly being concerned in the furnishing, fitting out, or arming of any ship or vessel, with intent that such ship or vessel shall be employed in the service of either of the said belligerents. "9. Issuing or delivering a commission within the territory or jurisdiction of the United States for any ship or vessel to the intent that she may be employed as aforesaid. "10. Increasing or augmenting, or procuring to be increased or augmented, or knowingly being concerned in increasing or augmenting, the force of any ship of war, cruiser, or other armed vessel, which at the time of her arrival within the United States was a ship of war, cruiser, or armed vessel in the service of either of the said belligerents, or belonging to the subjects or citizens of either, by adding to the number of guns of such vessels, or by changing those on board of her for guns of a larger caliber, or by the addition thereto of any equipment solely applicable to war. "11. Beginning or setting on foot or providing or preparing the means for any military expedition or enterprise to be carried on from the territory or jurisdiction of the United States against the territories or dominions of either of the said belligerents." The Tribunal of Arbitration will also observe that the most important part of the . American act is omitted in the British act, namely, the power conferred by the eighth section on the Executive to take possession of and detain a ship without judicial process, and to use the military and naval forces of the Government for that purpose, if necessary. Earl Russell is understood to have determined that the United States should, in no event, have the benefit of such a summary proceeding, or of any remedy that would take away the trial by jury.-Speeches and Dispatches of Earl Russell, Vol. II, page 266. tween other States with whom Great Britain might be at peace, and to inquire and report whether any and what changes ought to be made in such laws for the purpose of giving to them increased efficiency, and bringing them into full conformity with international obligations. That Commission held twenty-four sittings, and finally reported that the old Foreign Enlistment Act of 1819 was capable of Report of improvement, and might be made more efficient by the Commission. enactment of several provisions set forth in the report.2 that Among other things the Commission recommended that it be [115] made a statutory offense to "fit *out, arm, dispatch or cause to be dispatched, any ship, with intent or knowledge that the same shall or will be employed in the military or naval service of any foreign Power in any war then being waged by such Power against the subjects or property of any foreign belligerent Power with whom her Majesty shall not then be at war."3 It was also proposed to make it a statutory offense to "build or equip any ship with the intent that the same shall, after being fitted out and armed, either within or beyond Her Majesty's Dominions, be employed as aforesaid ;" and it was proposed that the Executive should be armed with summary powers similar to those conferred upon the President of the United States by the eighth section of the act of 1818. It was further proposed to enact that "in time of war no vessel employed in the military or naval service of any belligerent, which shall have been built, equipped, fitted out, armed, or dispatched contrary to the enactment, should be admitted to any port of Her Majesty's Dominions."5 The Tribunal of Arbitration will not fail to observe that these recommendations were made by a board composed of the most eminent judges, jurists, publicists, and statesmen of the Empire, who had been in [116] public life and had participated *in the direction of affairs in Great Britain during the whole period of the Southern rebellion; and that they were made under a commission which authorized these distinguished gentlemen to consider and report what changes ought be made in the laws of the Kingdom, for the purpose of giving to them increased efficiency, and bringing them into full conformity with the international obligations of England. The Tribunal of Arbitration will search the whole of that report, and of its various appendices, in vain, to find any indication that that distinguished body imagined, or thought, or believed that the measures which they recommended were not "in full conformity with international obligations." On the contrary, the Commissioners say that, so far as they can see, the adoption of the recommendations will bring the municipal law into full conformity with the international obligations. Viewing their acts in the light of their powers and of their instructions, the United States feel themselves justified in asking the Tribunal to assume that that eminent body regarded the acts which they proposed to prevent by legislation, as forbidden by International Law. The report of the Commissioners was made in 1868, but was not acted upon until after the breaking out of the late war between The Foreign En Germany and France. On the 9th of August, 1870, listment Act of 1870. [117] Parliament *passed "An act to regulate the conduct of Her Majesty's subjects during the existence of hostilities between foreign States with which Her Majesty is at peace." This act, which may be found 1 Vol. IV, page 79. 2 Vol. IV, page 80. 3 Vol. IV, pages 80, 81. |