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Lord Stowell, in his often-quoted judgment in the case of The Twee Gebroeders,' which he refused to condemn as a prize, the capture having been made on the high seas, but by the boats of a British manof-war which was lying at anchor in neutral waters :
If it were necessary to that prove a direct and immediate act of hostility had been committed, I should be disposed to hold that it was sufficiently made out by the facts of the case; but direct hostility appears not to be necessary, for whatever has an immediate connexion with it is forbidden: you cannot, without leave, carry prisoners or booty into a neutral territory, there to be detained, because such an act is an immediate continuation of hostility; in the same manner an act of hostility is not to take its commencement on neutral ground; it is not sufficient to say, it is not completed there:' many instances have occurred in which such an irregular use of a neutral country has been warmly resented, and some during the present war.
It will thus be seen that both in practice and in principle, international good faith justifies and even requires from neutrals the honourable and equitable discharge of their international obligations in such cases, in compliance not merely with the form but with the spirit of such obligations.
This brings us to the consideration of the argument, which, apart from all technical objections founded upon the language and construction of the Act of Parliament, is chiefly relied on for the defence of those charged with a breach of neutrality in building and sending forth ships such as the 'Alabama' and 'Alexandra;' viz., that ships, per se, are articles of commerce with which neutrals may lawfully supply belligerents; and that these ships, leaving a neutral port unarmed, and with no intention of committing hostilities immediately, or until after being armed either on the high seas or at some other neutral port, are only to be viewed at most as contraband of war, or as designed to break blockade; in which point of view, although the belligerent may exercise against them his right of capture, their own Government is not called upon to interfere.
building of the ships maintain a complete silence as to their real destination or ultimate purpose or employment; they do not apply for a licence from the Crown, which would be a complete protection to them; they do not seriously pretend to deny that the ships are built for the Confederate Government government engaged in a war by sea and land, but which has no commercial marine, no port which is not blockaded; which has only vessels of war at sea, procured at and sailing from neutral ports exclusively, and employed solely in capturing and destroying the merchant vessels of its enemy.
Under such circumstances the doctrine of these ships being merely articles of commerce or contraband of war, or ordinary blockade-runners' is untenable; it is a fiction or device too transparent to be made available consistently with good faith, inter gentes, by one nation in answer to the remonstrances of another.
The ships, be it remembered, are not to be delivered at any port of the nation for whose service they are built; they are, ex concessis, to proceed to sea beyond British jurisdiction for some alleged neutral destination; although without cargo, or any clearly explained object. Nevertheless it is seriously argued that the British Government is not to interfere; but to fold its hands and close its eyes, and to content itself with expressing its regret if it should turn out that the vessels, though armed and equipped either on the high seas or in the most convenient neutral port, should nevertheless in effect proceed from a British port to commit hostilities against a nation with which England is anxious to maintain peaceful and friendly relations; provided only that they receive their armament either on the high seas or elsewhere out of British territory. Let us ask ourselves as Englishmen what we should say and what we should do, if the case of the Federal Government was our own; and the answer cannot be doubtful.
If (in sea phrase) we look 'further
The parties concerned in the ahead,' what consequences do we
VOL. LXIX. NO. CCCCIX.
see inevitably resulting from the recognition or toleration of this peculiar species of commerce between neutrals and belligerents, more especially as regards maritime nations?
It would result therefrom that any belligerent nation, though destitute of any naval force, with all its ports blockaded, or even without any port, might nevertheless procure a fleet to be built, armed, sent to sea, and refitted when needful; and thus carry on a naval war by resorting to every territory but its own; rendering all neutral ports (in effect) its own arsenals, and conducting its hostile operations from neutral territory exclusively. All this it might do, provided only that no hostile act was done directly and immediately in the first voyage from the port where the ships were built or purchased, from which they must sail unarmed.
The reductio ad absurdum seems complete; and the device appears almost too transparent to require exposure. The sailing unarmed in the first instance would be only an empty form, their armament being easily completed as soon as they reached the high seas; the hostile enterprise would, notwithstanding compliance with this form, be substantially and effectually commenced from the port of first departure; and the nation which remained passive under such a system would be rightly held responsible for the consequences of thus permitting its territory to be used for the original preparation and actual commencement of a hostile enterprise.
It cannot be maintained, and it is not even alleged, that any such system has ever existed in point of fact, much less that it has ever been sanctioned by the usage or common consent of nations; and the position is utterly unsupported by any authoritative judicial decision. Even the expressions of American opinion by Kent and Storey (which are substantially the only authorities relied on in favour of the system) are clearly limited and restricted to the case of the previous delivery of the ship at a port of the belligerent; from whence, and not from any
neutral port, she is supposed subsequently to commence her hostile operations. Such expressions, for instance, as the following:- Surely it is lawful in the United States to say, "make us a vessel of such a description, and when you have made it, send it to us (Storey); and there is nothing in our own laws or in the law of nations that forbids their citizens from sending armed vessels as well as munitions of war to foreign ports for sale' (Supreme Court of the United States)— cannot, without a complete perversion of their meaning, be so construed as to justify the furnishing of ships by neutrals to a belligerent which are not to be delivered at any belligerent port, but to be sent forth from a neutral port in order to commit hostilities, after being more completely fitted for that purpose on the high seas, or in another neutral port.
Even were the point open or left to the option of neutrals (which we deny), the inevitable risk of ill consequences from any concession or toleration on their part, ought in our opinion to be decisive in determining our conduct in the case which is actually under consideration. The duty as well as the policy of neutrals with reference to all attempts to implicate or involve them in war, and more especially when such attempts are connected with making their territorial immunity subservient to hostile operations (as for instance, by making their ports the point of departure, or place of commencement of any hostile enterprise), is above all precautionary and preventive; their foresight and their vigilance should be exerted in order (as it were) to protect their own political, legal, and territorial rights and privileges. It is often beyond their power effectually to repair the wrong when done; and any negligence or weakness exhibited in relation to one belligerent, naturally tempts, and sometimes justifies or excuses the encroachments or irregularities of the other. The responsibility of effectually carrying out such a policy, must, in cases where the power of the executive government is strictly limited,
often involve the necessity of relaxing such limitations, and of intrusting the government with a discretionary and to some extent even an arbitrary authority over its own subjects. Thus, if the object in view cannot be attained without a special law, such a law (as we have seen in our own case and in that of the United States) must be framed; and if in the continual changes and chances of international relations, with all their complications and emergencies, the existing legal machinery of the nation is insufficient for its work, it must be altered and adapted according to circumstances.
It is true that any such measures may not unreasonably be exposed to a jealous political criticism, and that they should only be sparingly resorted to; whilst mere technical or formal defects may be obviated without scruple, the introduction of novel principles of legislation or of procedure is open to more serious objection; but what is above all essential is the timely and effectual protection from danger of 'the peace and welfare of the kingdom."*
In the case under consideration, we feel that great national as well as international interests are at stake; the peace and welfare of the nation, as well as its dignity and character, will, in our opinion, be inevitably exposed to risk, if, whether by reason of any technical defects of the existing law, from any mistaken national sensitiveness as to what is called 'altering the law under foreign dictation,' or from any apprehension of temporary political difficulties, there should be any hesitation in resolutely carrying out the sound policy of precaution which our Government has so wisely initiated.
Extreme pressure of circumstances has driven the Confederates to this attempt to make use of our ports in
a manner which we cannot permit consistently with the law and usage of nations, with our duty as neutrals, with our modern maritime policy, or with our national character and position. For the first time in modern history we are called on to set an example to all nations of the unflinching discharge of our duty as neutrals; to carry out in that character in 1863 the policy which we proclaimed as belligerents in 1854, of 'lessening as much as possible the evils of war, and restricting its operations to the regularly-organized forces of the country,' and to prevent the establishment of a system, hitherto unknown, which would in any future war greatly aggravate and extend those evils; and would constitute a most injurious precedent as against ourselves in common with all others resorting to the 'highway of nations.'
The British Government-by its expressed intention of seizing the Alabama' (only defeated by accident), by its actual seizure of the 'Alexandra,' and the steam rams,' and by its legal proceedings against the former ship-has not only irreVocably admitted the obligation of discharging its international duty in the cases which have arisen and may be expected to recur, but it has, by necessary implication, undertaken in the face of the world to do this effectually, and not to be deterred in the accomplishment of its object by any obstacles merely of form or of detail; it has proclaimed and entered upon a wise and vigorous course of conduct, and may rely on that support which we are persuaded will not be wanting, in whatever shape it may be required, on the part of the nation which has already so clearly manifested its determination to remain rigorously neutral in this unhappy contest.
* Under the Foreign Enlistment Act, both the intention and the act of its violation must be established to the satisfaction of a jury, as in any ordinary criminal case; but there would be nothing unconstitutional in extending to ships the power already vested in the Crown by the statute 17 & 18 Vict., c. 107 (The Customs Consolidation Act), of prohibiting the exportation of arms, ammunition, gunpowder, military and naval stores, and any articles which Her Majesty shall judge capable of being converted into, or made useful in, increasing the quantity of military and naval stores, provisions, or any sort of victual which may be used for food of man,' under pain of forfeiture. The licence of the Crown (as under the Foreign Enlistment Act) would, as a matter of course, be granted under all circumstances free from objection or suspicion.
NELLY IN TROUBLE.
When I sleep I dream,
For thinking of my dearie.
A' the lave are sleepin',
LORENCE was not slow in dis
Foovering that of the two most
available men of the party one was already deep in love and the other on the high road to become
She knew Erle's mood a thousand times too well to be imposed upon by the laboured politeness, behind which dislike or indifference found a decent shelter. Anstruther, on the other hand, was too little of a tactician to let his growing_passion escape the scrutinizing glance of an experienced observer. Nelly accepted him as a sympathizing friend. Florence at a single glance pronounced him a lover, and understood that friendship and sympathy alike were but the transparent pretexts for an unavowed attachment. The discovery somehow seemed to damp her 'spirits and rob her visit of half its promised charm. Was it jealousyrestlessness-regret? She knew not; but her heart ached none the less cruelly. A sense of dissatisfaction was growing - slow, certain, irresistible-upon her. Life was beginning, at more points than one, to look extremely dreary. After all, what did its successes, its efforts, its excitements, come to? What, but a scarcely varying round of hopes more or less bitterly disappointed; of activity that wearied without amusing; of pleasures which, scarcely tasted, began to pall. She had mocked at existence, reviled it half in jest, made it the butt of bitter mirth, and now it began to revenge itself upon her. In some corner of her soul there lurked a secret spring of tenderness; and, long ignored
and trampled under foot, it overflowed now in a flood of melancholy. It had been all very well while admirers were plentiful, to indulge in a scornful mood, and to disparage the homage which she could at any moment command. But suppose
the flatterers fled, the power of fascination failing, the spell, which she had wielded so recklessly, broken; how terrible, how humiliating an isolation seemed to be awaiting her! There was a depth of gloom, she felt, for which the bitterest sarcasm that ever cynic poured upon mankind was weak, tame, and inadequate; a gloom which she dared not think of, much less defy; a dreadful aching void, that was always pain, and might at any moment become agony; a want that, tame it as she might, was yet half fierce, and more than half rebellious, and must needs some day throw off its customary yoke, and break out into passionate, reckless, imperious necessity.
So it was that she had looked forward with a sort of languid satisfaction-not the less real, however, for its languor-to the renewal of intercourse with the people who of all others recalled the brightest phase of her career. Old friends
pleased her the best, for they reminded her of the sovereignty which was once her own. With Erle and Anstruther she assumed once more, and almost without an effort, the grand airs of a capricious beauty. How pleasant, how natural, how invigorating, again to handle, if only for a few hours, the sceptre that seemed slipping from her grasp.
Both men remembered her a queen; and if fallen now, she was still, in their thoughts at least, invested with something of her old prestige. Both of them had known her haughty, dazzling, unattainable; and in their company Florence felt again once more her former self. Erle she knew that it was in vain to try to like, and she therefore resolved upon detesting him. But Erle's companion, though not a conquest worthy of her martial fame, had something about him that pleased, interested, and almost touched her. As the handsomest man in the house, he seemed, by the traditions of conquest, her lawful prey. A few years' experience of barracks and drawing-rooms had left him still as frank, simple, and impressible as ever. He still made love, Florence easily perceived, with the same ingenuous but versatile sincerity as characterized his earliest flirtations. Towards herself he tempered the deference of admiration with the privileged familiarity of a friend. How pleasant the union seemed! how honest his kindness -how delicate his good breedinghow agreeable the conversation of a man who, if he could not amuse, knew at any rate the way to flatter! Florence, as she watched him that night hovering about the piano, and beating time approvingly to Nelly's tremulous performance, resolved that, if perhaps barely worth winning, he was nevertheless too good to throw away, and that his subjugation should be forthwith taken in hand. Was she in love with him?-No; but she began to feel extremely anxious that he should be in love with her.
The days slipped pleasantly away. Erle, as a good host should, supplied his guests with cogent arguments against a too hurried departure, and effectually convinced the Squire that in a dozen matters all the best interests of the Sharingham community depended on his presence and advice. Mr. Evelyn, who knew not what it was to be suspicious, fell at once into the snare, and set about examining cottages, criticising fat bullocks, and laying down imaginary lines of
drainage, with all the alacrity due to so congenial an employment. Erle accepted his instructor's counsels with a submissiveness that was perfectly unfeigned, and cheered himself through long agricultural mornings with the prospect of a ride with Margaret in the afternoon, or of some fortunate moment in the evening's festivities which would enable him without suspicion to indulge in the hardly-earned luxury of a téte-à-tête. On the villagegreen they met the reactionary parson; and the Squire had a real struggle with himself to tame his sarcastic mood into the politeness which a churchman had a right to expect.
How is that excellent parishioner of yours,' he inquired, who lives on evil smells and black ditches, and as Erle tells me, has quite discouraged him as a sanitary reformer? Dead! Well, 1 am really glad to hear it. Do you hear, Erle, the old woman is dead; I knew it must kill her. No constitution can withstand an open ditch. Now I hope you are both convinced.'
The parson thought his visitor beyond the reach of argument, and no amount of scepticism would have resisted Erle's impatience to get home to lunch; so that Mr. Evelyn was left happy in the belief that his morning had not been thrown away, and that two converts at least had been added to the list of believers in fresh air, soap, water, and tubs.
After luncheon the real business of the day began, and one pleasant excursion after another gave room for increased familiarity, and opportunities, to those who chose, of intercourse more spirit-stirring and confidential than was easily attainable in the crowd at home. Erle had skill enough to break up the party into groups likely to keep each other mutually well amused; and Anstruther discovered that Nelly's pony, usually quiet enough, evinced a fractious mood with which he alone of all the riders was competent to deal. Nelly, who was afraid of accidents, and not at all afraid of Captain Anstruther, was well enough content that he should