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We greatly doubt whether the question has ever received due consideration; and we can only suggest that the ancient usage of comparatively barbarous times, which placed all the enemy's property, without distinction, at the conqueror's mercy, whether afloat or ashore, has, whilst modified and limited to public property on land, been left to operate on private property at sea in all its original rigour, quasi per incuriam, by that peculiar species of neglect which in so many cases 'lets ill alone,' and which, more especially in maritime matters, has left so many traces of those evil days of old, when piracy was connived at, slave-trading encouraged, the destruction of a defenceless town regarded as a brilliant naval exploit ; when the law of the strongest' was the only 'sea law.'
But whatever may have been the origin of the practice, and whatever the causes of its continuance, it must now be viewed in connexion with and by the light of the 'Declaration,' abolishing privateering, and allowing the flag to cover the cargo. Excepting cases of breach of blockade, the right of capture of merchant ships is now limited to the ships of the enemy, and can only be exercised by national ships of war. With these limitations it was, in fact, exercised during the Russian war, rather (apparently) as a matter of form, than with the view of obtaining any serious result, in which it entirely failed.
It would seem to be a question open to serious doubt whether the waiver or abandonment of this right, thus reduced as we have seen to the narrowest limits, would not be hereafter preferable to its retention, even with a view to the separate and national interests of belligerents. All nations-even the strongest-would feel the benefit of having their merchant shipping secured from molestation, in return for their own abstention from molesting that of the enemy; and the common interests of the commercial world would be advantageously promoted. England, for instance, would be thus insured against her only real sea risk' in war-viz., the interruption of her
extended trade: 'navy against navy' she might rest secure.
'Come the three corners of the world in arms, and we shall shock them!' Blockade would remain and still be enforced by capture.
We have already seen that the most strenuous efforts of the greatest powers to obtain any important result in war by the exercise of the most unlimited belligerent rights against commerce have failed to succeed; and we ask if any reasonable reliance can be placed on the result of any future attempts in the same direction, limited as they must hereafter be by the Declaration of Paris?
Privateering being abolished by the common consent of Europe, we may hope that national vessels will be henceforth relieved from doing the work of privateers. Such a practice can never promote the national honour, advance the national interest, or be held consistent with the existing ideas of the dignity or morality of European nations; whilst it is, as we have seen, irreconcileable with the course and tendency of their modern maritime policy.
Her Majesty's anxiety to lessen as much as possible the evils of war, and to restrict its operations to the regularly-organized forces of the country,' was formally announced to Europe on the eve of her last appeal to arms, in words of happy augury, which bore fruit in their season, and sound hopefully for the future.
The expediency of limiting blockade to ports or coasts actually attacked has indeed been suggested; but the suggestion seems at least premature-the interception of all supplies is often vital to success in
The complete maritime peace, happily restored in 1856, remained unbroken until 1861, when Europe was startled by the breaking out of the civil war between the previously United States of North America; an event by which all other nations were at once placed in the position of neutrals, a position to which England and France had been, in effect, previously strangers.
Upon England more especially
devolved the duty of resolutely maintaining the rigorous neutrality which she had, in common with all other powers, resolved to adopt in this unforeseen emergency-a duty which she has hitherto unflinchingly performed, with a consistent and dignified disregard of all selfish interest, and a steady indifference to consequences eminently creditable to her national position and character. Her early recognition of the obvious international position of the Confederates as belligerents, her candid admission of the general validity of the extensive blockade imposed and maintained (howsoever) by the Federal Government, her prompt resolution in maintaining her neutral rights when they were flagrantly violated in the case of the Trent,' and her patient and dignified endurance of the evils and the inconveniences incidental to her peculiar position in relation to the cotton trade, all speak for themselves, and need no vindication.
The course of this war has fortunately been hitherto attended with but few of the serious international disputes between the belligerents and neutrals which might have been anticipated. Each of the belligerents has (doubtless by an understanding with the great European powers) adhered in effect to the principles of the Declaration of Paris; each has permitted 'the flag to cover the cargo,' and neither has resorted to privateers. The blockade of the Confederate ports by the Federal navy has been on the whole effective and uninterrupted by any Confederate force; the recapture of New Orleans, the siege of Charleston, and the very limited number of Confederate ports which afford any temptation to blockade runners,' have left but little ground open for disputes; and most fortunately there is only one serious international question outstanding between England and the belligerents-viz., that which is known in common parlance as the case of the 'Alabama.'
In considering this point from a strictly international point of view, we must premise that, as to the admission of the abstract principle of
the duty of strict neutrality on our part, there is no dispute. The existing controversy is limited to the practical application of the principle to the particular cases which have arisen, and which are certain to recur-viz., cases of ships of war, procured by the Confederate Government from England, which, without having touched at a Confederate port, have captured Federal merchant ships.
The Alabama' seems, in pursuance of a carefully-prepared plan or scheme of operations, to have been (howsoever) acquired in England by the Confederate Government, and in their service to have left Liverpool unarmed. Her armament and equipment were subsequently perfected (apparently at Terceira); a captain and officers, with Confederate naval commissions, found their way on board; the crew-probably of mixed nationality, but doubtless in great part British subjects-entered the Confederate service; and she has since cruised and committed hostilities' against Federal merchant vessels exclusively. No Confederate port being open to her, she has not proceeded, according to the ordinary law and usage of nations, to adjudication' before a Confederate prize court, but has destroyed or ransomed her numerous prizes. Inasmuch, however, as she has, by allowing the flag to cover the cargo, avoided doing any injury to neutrals, her treatment of her prizes is not a breach of their rights, nor a question with which they have any con
The British Government, acting at the instance of the United States' minister, and having received, after and notwithstanding some delay and difficulty, what it considered as sufficient information to justify her seizure under the Foreign Enlistment Act, ultimately gave orders for such seizure, which arrived too late for execution. Her success has been openly boasted of by those concerned in her, who do not conceal their intention of repeating the experiment, which they in effect contend did not in this case, and will not in others involve any direct breach of the English law. That
the law was eluded by the 'Alabama' seems to have been admitted by Mr. Laird, who in a speech delivered at Liverpool on the 23rd of October, distinctly acknowledged that his firm were concerned in the case, and added significantly, 'When hounds approach a cover, the fox scents the hounds; and when the huntsman comes up to the cover, the fox is gone.'
Although the event was eminently unsatisfactory to the Federal Government, and has excited the greatest exasperation throughout the Federal States, still it is obvious that the British Government, by issuing orders for the seizure, not only admitted the substantial justice of the Federal representations as to the particular case of the 'Alabama,' but in effect undertook the effectual discharge of its 'neutral' duties in all cases of the same class. The principle was conceded; and all that remained open to discussion between the two Governments were questions of detail, such as the facts and circumstances of each subsequent case, as and when it might arise, and the period and manner in which the British Government should properly exert its authority, so as to prevent the mischief to be apprehended.
We say advisedly, the principle was conceded' to its full extent in the case of the 'Alabama;' the subsequent seizures of the Alexandra' and the Steam Rams' only reaffirmed what was then done.
The concession thus made renders the precise limits of the effect and operation of the existing Municipal Law of England comparatively unimportant to the international question. To put the case strongly and plainly, as between the two Governments, it would be no answer to the remonstrances of the Federal Government against acts of direct hostility committed against it from British territory, for the British Government to say, 'We can only enforce our laws;' 'our laws give us no power to interfere;' or even 'our laws forbid our interference.' The only reply would be, 'Alter your law.' If instances were wanting of the correctness and binding
effect of this principle, they would be found in the facts connected with the enactment of Foreign Enlistment Acts in the United States and in England.
The war of the French Revolution between France and England placed the United States in a critical position as a neutral power. France attempted to fit out privateers in the ports of those States. Only ten years had elapsed since the establishment of their independence, which they had wrested from England by the aid of France. They had no municipal law sufficient to meet the case; and the temptation to connive at the scheme, and to fall back on the fact of its 'not being an offence against the law of the United States,' was very strong; but the good genius of Washington prevailed. Where,' said he in his speech to Congress, 1792, the penalties for violations of the law of nations may have been indistinctly marked, or are inadequate, these offences cannot receive too early and close attention; they require prompt and decisive remedies.' M. Genet, the French minister at Washington, contended that the President had no power to impede such proceedings, which were merely the private operations of merchants.' A controversy ensued between him and Jefferson, as Secretary of State, in which the latter resolutely asserted the duty and determination of the United States to maintain their territorial sovereignty, and to prohibit the 'arming and equipping vessels in their ports to cruise against nations with which they are at peace,' as incompatible with such sovereignty.
The first Foreign Enlistment Act of the United States (1794) was thereupon enacted, in order to place beyond doubt the legal right and power of the President' to carry this resolution into effect.
This Act was subsequently (in 1818) amended, and its provisions enlarged, in order to meet cases arising out of the civil war between Spain and her South American Colonies.
England found herself compelled to follow this excellent example as soon as she was placed in the posi
tion of a neutral, and exposed to the attempts of belligerents to abuse that position for their own purposes. 'When the State,' said Lord Stowell, 'says Iwe will not interfere," and the subject says "I will," the will of the State must predominate.' The seizure of the Spanish port of Portobello by an expedition got up in England by Sir Gregor M'Gregor, compelled her reluctantly to action; and the Foreign Enlistment Act of 1819 was the result.*
It is apparent from the Parliamentary debates on the policy of passing this Act, and from the preamble of the Act itself, that reasons of state urgently required an alteration of the existing law, which was not sufficient, as it stood, to prevent 'acts which may be prejudicial to and tend to endanger the peace and welfare of the kingdom.'
Thus we see that both England and America, as soon as they found it needful to enforce upon their subjects and citizens the duty of refraining from such acts as would constitute breaches of the law of nations, and would tend to endanger the peace and welfare' of the state, by compromising its neutral character, did not hesitate to enact special laws for that purpose. The national feeling of each country was strongly in favour of assisting France in the one case, and the South American Republics in the other; but this feeling did not prevent the Executive Governments from requiring, or their Legislatures from granting the municipal provisions necessary for the discharge of their duty towards other nations.
But the exertion of a ' vigour beyond the law' has in some cases been found necessary, in order to prevent serious and imminent evil; and England, which of all countries is the most jealous on this point, did not shrink from exerting this vigour on the last occurrence of an adequate emergency.
In the year 1829, in the course of the civil war for the succession to
the throne of Portugal, the island of Terceira had declared for Donna Maria, and successfully repelled an attack made on it by the forces of Don Miguel. A body of officers and troops of the Queen's party, who had come to England as refugees from Portugal (then in the hands of Don Miguel), sailed from England, under the command of Count Saldanha, with an ostensible destination for Brazil; the British Government, suspecting their real destination to be Terceira, warned the Brazilian minister that they would not be permitted to go there. The Duke of Wellington, in characteristic terms, stated
that his Majesty's Government cannot permit that England should be made an arsenal or a fortress, from whence any one may make war as he thinks proper.' He added, 'It cannot be permitted that individuals, of whatever character they may be, should prepare warlike expeditions in the ports and arsenals of this country, in order to make attacks upon others. .. When his Majesty professes neutrality he will not permit that his dominions should be used as the arsenal, the camp, the port of equipment, for carrying on war by any sovereign or individual. The circumstances noticed in this letter describe too accurately the character of the proposed voyage to the island of Terceira, for his Majesty's Government to allow his Majesty to be deceived as to its real intentions.'
The Duke concluded by observing that a civil war was now being carried on in the Azores, particularly in the island of Terceira; his Majesty is neutral in that contest, and he cannot permit a body of troops, respecting whom he thought proper to give orders that they should remove from Plymouth, to go to Terceira from any port of his dominions. There can be no doubt in the mind of any man who is acquainted with the circumstances, of the object in view in sending these troops to Terceira; and I repeat to
It is remarkable that no judicial decision has ever been pronounced on this Act. is one,' said the Lord Chief Baron in his charge to the jury in the Alexandra,' upon which no question has ever arisen in the courts of justice, and it is here before you for the first time.'
you, Monsieur le Marquis, that they will not be allowed to land there.'
Orders were accordingly issued to Captain Walpole, R.N., commanding a naval squadron, to warn the vessels in question that he was instructed to prevent those on board from landing at any of the Western Islands; and should they persist, notwithstanding such warning, to use force to drive them away from that neighbourhood, and to keep sight of them until convinced that they had no intention of returning.
These orders were strictly obeyed. Captain Walpole intercepted the expedition off Terceira; on their refusing to heave-to after two warning shots, a shot was fired which proved fatal; this had the desired effect; and after some correspondence, the expedition was escorted by the British squadron to within 500 miles of Scilly, and ultimately put into Brest.
The case was warmly discussed in Parliament and by the press; it was contended that the Government, recognizing Donna Maria, who was in actual possession of Terceira, and refusing to recognize Don Miguel, had interfered by force to prevent the Queen from strengthening her garrison against the usurper; and that the expedition was only the act of one belligerent securing his dominions against the attack of another, and not an attack upon anybody. But it was replied by the Government that this circumstance could not change its real character, or its ultimate object and purpose; that had it sailed from any foreign port, the Government of England would not have interfered; that the disguise which was used as to the Brazilian destination, had prevented the Government from interfering within its own territory, and there discharging its international duty as a neutral-a duty which demanded that on discovering the deceit, they should provide against its being carried into effect.
With respect to the argument that the object of the expedition was only to strengthen the garrison of Terceira, it was apparent that on receiving the reinforcement, further
military operations would have been carried on.
International good faith imperatively requires that all duties imposed by the law of nations should be discharged effectually and completely. Neutral governments, if anxious to maintain that character, are bound to use their utmost exertions to prevent their territory or their national rights from being in effect abused or infringed for hostile purposes, by either of the belligerent governments, or their agents, or subjects, by their own subjects, or by whomsoever;' no evasion of their municipal laws, no indirect mode of doing what the parties concerned could not safely do directly, should be connived at or tolerated; and the abuse of neutral rights or territory is no more to be suffered at one stage or period of a hostile enterprise than at another.
Thus, for instance, the fact of the whole of the enterprise not having been carried out from beginning to end from neutral territory; or even the fact that no particular act of hostility was committed directly and immediately either from the neutral or within the belligerent territory, will not invariably avail to justify the neutral nation. If the enterprise was commenced or continued, or any of its material consequences or objects secured within neutral jurisdiction, such jurisdiction will have been thereby abused for hostile purposes.
In a military enterprise, the application of this principle is obvious. If, for instance, troops were enlisted and trained in the dominions of one neutral nation, and subsequently transferred to another, where they received their arms or their ammunition, and from whence they joined the forces of the one belligerent, or attacked those of the other, both would be equally guilty of a breach of the law of nations; and in a moral sense the guilt of the nation which permitted the inception of the enterprise might well be viewed as the more aggravated.
In short, that which when done directly would be a violation of the law of nations, will be equally so though done indirectly. This principle is thus lucidly developed by