practical end in view by even judicial means, to the note of Mr. Dana, the learned commentator on Wheaton, which is printed in full in vol. VII of the American Appendix, pp. 11-38. We quote a few passages. Our obligation arises from the law of nations, and not from our own statutes, and is measured by the law of nations. Our statutes are only means for enabling us to perform our international duty, and not the affirmative limits of that duty. We are as much responsible for insufficient machinery, when there is knowledge and opportunity for remedying it, as for any other form of neglect. Indeed, a nation may be said to be more responsible for a neglect or refusal which is an imperial, continuous act, and general in its operation, than for neglect in a special case, which may be a fault of subordinates. As to the preparing of vessels within our jurisdiction for subsequent hostile operations, the test we have applied has not been the extent and character of the preparations, but the intent with which the particular acts are done. If any person does any act, or attempts to do any act, toward such preparation, with the intent that the vessel shall be employed in hostile operations, he is guilty, without reference to the completion of preparations, or the extent to which they may have gone, and although his attempt may have resulted in no definite progress toward the completion of the preparations. The procuring of materials to be used, knowingly, and with the intent, &c., is an offense. Accordingly, it is not necessary to show that the vessel was armed, or was in any way, or at any time, before or after the act charged, in a condition to commit acts of hostility.' No cases have arisen as to the combination of materials, which, separated, cannot do acts of hostility, but united constitute a hostile instrumentality, for the intent covers all cases and furnishes the test. It must be immaterial where the combination is to take place, whether here or elsewhere, if the acts done in our territory, whether acts of building, fitting, arming, or of procuring materials for these acts, be done as part of a plan by which a vessel is to be sent out with intent that she shall be employed to cruise. As to penalties and remedies, parties guilty are liable to fine and imprisonment; and the vessel, her apparel and furniture, and all materials procured for the purpose of equipping, are forfeited. In cases of suspicion revenue officers may detain vessels, and parties may be required to give security against hostile employment; and the President is allowed to use the army and navy or militia, as well as civil force, to seize vessels, or to compel offending vessels, not subject to seizure, to depart from our ports. What vessels shall be required to depart is left to the judgment of the Executive. Observe, now, the practical operation of the Foreign Enlistment Act as it was worked by Her Majesty's Government in fulfillment of its obligation "to use due diligence to prevent" the infractions of neutrality practiced to the prejudice of the United States. 1. All preventive intervention, in that name and of that design, was excluded from the resources of the law. It was confined to punishment of committed offenses. The personal inflictions were not severe enough to deter; and the proceedings to forfeit a guilty vessel for a committed offense might, incidentally, by its judicial arrest, thwart, or delay her injurious cruise; but only incidentally. The punitive prosecution for forfeiture might have place after, as well as in anticipation of, the hostile cruise. 2. It was held that arming the vessel itself within the jurisdiction was essential to guilt, and that any project for the cruiser that proposed to take out her armament, her munitions, or her men by separate bottoms, like the Alar, or the Hercules, or the Bahama, or the Laurel, or the Prince Alfred, was not within the penalties of the law. These supplyvessels, in turn, were safe under the law, as they were not intended "to cruise or commit hostilities against" the United States. Indeed, under this construction of the act, there seemed to be nothing to prevent the intended cruiser from taking in tow the tug which had its armament, its munitions, and its men, for transshipment on the high seas. For this purpose would, if proved, demonstrate that the cruiser had not taken, * Page 37. 1 Page 35. and did not propose to take, any armament, &c., within the jurisdiction, and that the tug was coming back, and had no "intent to cruise or commit hostilities." 3. It was constantly enjoined by the Government upon all officials, that they must be extremely careful not to attempt to interfere with the freedom of these suspected enterprises, unless they had in hand volunteer evidence sufficient to secure success; for, otherwise, they and their superiors would be exposed to heavy damages for failure. 4. It was made very prominent that demonstration of the warlike build or fitness of the cruiser would not procure a forfeiture without satisfactory proof, in advance of any act, of the conscious intent to which a jury could not shut its eyes. It was then held that, when the intent was made manifest by the inception of the cruise, as on the trial of the Florida at Nassau, no conviction could take place, because the warlike build and fitments having occurred in the home port of Liverpool, and the demonstration of intent in a colonial port, the actual cruise must be suffered to go on unimpeded. When, however, the principal law-officers of Her Majesty's Government attempted to reform this administration of the law, the principle that the full-blown consummation of the enterprise, by the cruiser's taking the seas under a commission, protected it from any further judicial scrutiny, barred all further proceedings. We offer to the attention of the Arbitrators some extracts from official papers relating to the cases of the Oreto (or Florida) and Alabama, as instances of the system of the administration of the Foreign Enlistment Act of which we are now complaining, and which we also conecive to furnish a fair illustration of the general ineffectual nature of the action and result in all the attempts to enforce it. On the 16th of June, 1862, the question being upon the seizure of the Oreto at Nassau, Governor Bayley wrote to Commander Hickley, in part as follows: The Oreto, as you are aware, has, in deference to your remonstrances and my orders, discharged her cargo of shell, shot, and ammunition, and is ready to clear in ballast. She has thus divested herself of the character of an armed vessel leaving this port for belligerent purposes. I do not think it consistent with law or public policy that she should now be seized on the hypothesis that she is clearing out for the purpose of arming herself as a vessel of war beyond the limits of the harbor. We have done our duty in seeing that she does not leave the harbor equipped and prepared to act offensively against one of two belligerent nations, with each of whom Great Britain is at peace. And if she has still any such intention, an intention which cannot be fulfilled within the harbor, I think this could be effectually thwarted by giving instructions that the Vessels which are supposed to be freighted with her arms, and to be prepared to go out with her, should not leave the harbor within forty-eight hours after the Oreto has left it.1 On the 21st of June, 1862, Governor Bayley, after detailing certain incidents which had taken place in regard to the Oreto (Florida) at Nassau, thus reported to the Duke of Newcastle: 7. Throughout these occurrences I was averse from proceeding to extremities. Not that I considered the conduct of the Oreto to be entirely free from suspicion, or indeed from discourtesy to a neutral government. But I was unwilling to assume a hostile air; and, moreover, I felt that, however suspicious appearances were, it might be exceedingly difficult to bring either the Oreto or her crew within the scope of the Foreign Enlistment Act. But when, having been several times dissuaded by me from seizing the vessel, and having, after seizure, released her in deference to my views, Captain Hickley, in his letter of 16th June, reiterated the expression of his professional opinion, not only that the Oreto was equipped as a vessel of war, but that she could be made ready for battle with the enemy in twenty-four hours; that other vessels then in the harbor could steam out with her, and help to arm her within a few miles off this port; and 'Brit. App., vol. i, pp. 24, 25. that her real destination was openly talked of, I thought that a strong prima-facie case was made out for a judicial investigation, even although the evidence were insufficient to warrant her condemnation. And I thought it better to sanction an appeal to the law in favor of our neutrality, and in deference to the honest convictions of a gallant and experienced officer, than to allow the Oreto to leave our shores unchallenged and unobstructed on an expedition of pillage, piracy, and destruction. 9. These reflections were strengthened by others. I felt that if the Oreto were allowed to take in arms, ammunition, and a crew here, a similar impunity must be in future conceded to any other vessel belonging to either of the two belligerent states. The consequences of dealing out this even-handed justice would, in the existing state of popular feeling, be highly inconvenient and embarrassing. The boon obtained by a Confederate vessel would be claimed by a Federal vessel. If granted, it would be granted grudgingly and sulkily, and it was more likely that it would not be granted at all; hence would arise disputes, jealousies, and angry altercation. More than this, we have reason to believe that armed Federal vessels are lying at a very short distance from this port. The refusal to accord to northern vessels the same indulgence which has been accorded to those of the South, might, under these circumstances, provoke an affray between the ships of the two contending federations, and involve, not only this colony, but even the mother country in a very serious collision. # * 12. Your Grace will see that it is easy to do very much in the way of equipping a vessel for hostile purposes, arming her, and enlisting a crew, without establishing a case of such strong testimony as would justify her condemnation by a court of competent jurisdiction; and although it is repugnant both to our policy and our sense of justice to strain the letter of the law, even on the side of a reasonable inference against the rigid rules of technical evidence, yet it is easy to see that a strict adherence to these rules may be suspected to be the result, and may produce the fruits, of a deliberate collusion with the enemies of a State on terms of amity with our own country.1 On the 30th of June, 1862, the evidence in regard to the Alabama being under consideration, Mr. Hamel, Solicitor of Customs, thus reported to the Commissioners of Customs: The officers ought not to move in the matter without the clearest evidence of a distinct violation of the Foreign Enlistment Act, nor unless at a moment of great ener gency, the terms of the Act being extremely technical, and the requirements as to intent being very rigid. It may be that the ship, having regard to her cargo as contraband of war, might be unquestionably liable to capture and condemnation, yet not liable to detention under the Foreign Enlistment Act, and the seizors might entail upon themselves very serious consequences.2 On the 11th of July, 1863, Consul Dudley's letter in regard to the Alabama being under consideration, Mr. Hamel, Solicitor, thus advised the customs: There is only one proper way of looking at this question. If the Collector of Customs were to detain the vessel in question, he would, no doubt, have to maintain the seizure by legal evidence in a court of law, and to pay damages and costs in case of failure. Upon carefully reading the statement, I find the greater part, if not all, is hearsay and inadmissible, and as to a part the witnesses are not forthcoming or even to be named. It is perfectly clear to my mind that there is nothing in it amounting to prima-facie proof sufficient to justify a seizure, much less to support it in a court of law, and the Consuls could not expect a Collector to take upon himself such a risk in opposition to rules and principles by which the Crown is governed in matters of this na ture.3 On the 24th of July, 1862, after the Florida had been seized at Nassau on account of the "due diligence" of Commander Hickley, ViceAdmiral Milne thus wrote to the Secretary of the Admiralty: I abstain from giving effect to my first intention, which was to express to Commander Hickley my approval of the zeal displayed by him on this occasion, in giving proof that our neutrality between the belligerents was a reality, and that when the occasion offered, Her Majesty's officers were quite ready to accept the responsibility of acting as in this case, wherein it appeared to be notorious, however incapable of legal proof it may turn out to be, that the vessel in question was fitted out in a British port as an armed Confederate cruiser. Should the Law Officers of the Crown be of opinion that the seizure was illegal; that the very grave suspicion of being intended for employment as a Southern cruiser; the fact of the vessel being fitted in every respect like one of Her Majesty's ships, and specially adapted for war; her armament ready to be put on board, with a crew of fifty men, and officers of the Confederate States ready to command her; should these facts be insufficient, in their opinion, to justify legally and technically the seizure, I yet trust their Lordships will see fit to exonerate Commander Hickley from all blame and consequent responsibility.' On August 23, 1862, the Home Government having thought it desirable to send some Custom House Officers from Liverpool to Nasau, who could there give evidence of the facts which had taken place at Liverpool in regard to the Florida, Collector Edwards thus closes a letter to the Commissioners of Customs: I am satisfied that she took no such [warlike] stores on board, and indeed it is stated, though I know not on what authority, that her armament was conveyed in another vessel to Nassau. The Board will, therefore, perceive that the evidence to be obtained from this port will all go to prove that she left Liverpool altogether unarmed, and that while here she had in no way violated the law. On the 11th of August, 1862, Governor Bayley, reporting the release of the Oreto, wrote to the Duke of Newcastle in part as follows: I do not think it likely that we shall ever obtain stronger proof against any vessel than was produced against the Oreto, of an intention to arm as a belligerent. Therefore we may assume that no prosecution of the same kind will be instituted, or, if any be instituted, that it will fail. The natural consequence will be that many vessels will leave England partly equipped as men-of-war or privateers, and intended to complete their equipment here. But the notoriety of this practice will induce Federal men-ofwar to frequent these waters, and virtually blockade the islands, in greater force than they have hitherto done; and when they are assembled in numbers, it will be vain to reckon on their observing any respect for territorial jurisdiction or international usage. I should neither be surprised to see Federal ships waiting off the harbor to seize these Confederate vessels, nor to see the Confederate ships engaging with Federal men-of-war within gunshot of the shore. The only means of preserving the peace and neutrality of these waters will be afforded by the presence of an adequate naval force.3 On the 23d of September, 1862, Governor Bayley reported in part as follows to the Duke of Newcastle: I have the honor to inform your Grace that the Oreto, after her liberation by the admiralty court, left this harbor three or four weeks ago; and that she is supposed to have since been finally transferred to the service of the Confederate States. If that is so, she is entirely out of my jurisdiction, and I could no more legally seize her were she to re-enter the port than I could seize any man-of-war belonging to the Government of the United States.1 5. Another marked trait of the actual administration by her Majesty's Government of the punitive features of the Foreign Enlistment Act, is their failure in the clearest cases to enforce a forfeiture. When we consider that the pretensions of efficiency in this act are confessedly put upon its terrors to evil-doers and the dissuasion from illegal projects to be thus accomplished, it is with the greatest surprise that we find credit claimed for the British Government for the losses and sacrifices which that Government sustained in its purchases of its own peace from its law-breaking subjects by payment of damages, by agreement, for the prosecution of the Alexandra, and by payment in full for the Laird rams, instead of persisting in their forfeiture. Not more intelligible is the claim of credit for the course of the Government in the case of the Pampero, where the forfeiture was admitted by the claimants, but was never brought to an actual sale, which would inflict the loss of its value upon the guilty projectors of its intended cruise. Certainly, the British Government accomplished the detention both of the Pampero and of the Laird rams, and the United States have never omitted to express their satisfaction at this real benefit which they received from the success of 3 Ibid., p. 75. Brit. App., vol. i, p. 29. 4 Ibid. Her Majesty's Government in these instances. But, that the punitive terrors of this act should have lost the example of actual forfeiture to the Rebel resources, or to the guilty British ship-builders, of the great value invested in them, and that the British Government should have refunded the money, exhausted by the guilty enterprise of the Laird rams, in season for its new use by the Rebel agents and their accomplices in the same illegal service, can never seem to the United States a valuable contribution to the efficiency of the Foreign Enlistment Act as an instrument of punishment of these proscribed and dangerous proceedings. These various traits in the actual dealing of Her Majesty's Government with the Foreign Enlistment Act as an instrument, and as its only instrument, for maintaining its neutral obligations to the United States, became as well known, and were as clearly appreciated by all Her Majesty's subjects, and through all her imperial dominions, as if they had been announced by a Queen's Proclamation. No wonder that a learned judge of one of Her Majesty's superior courts declared that a whole fleet of ships of war could be driven through the statute! That, as matter of fact, a whole fleet of ships of war was driven through that statute, is in proof before this Tribunal. British reliance upon the Foreign En of due diligence, Upon the whole proofs, then, and in their application to the cases of all the offending vessels, we confidently submit to the Arbilistment Act a failure trators, that the Foreign Enlistment Act, as construed and administered, was not an adequate instrumentality for, and its actual employment by the Government did not amount to, the use of "due diligence to prevent" the violations of the international obligations of Great Britain to the United States, which are now under review. We have never been able to appreciate the practical difficulties in preventing the emission of these hostile vessels from British ports. They were a long time in course of construction; they were long under the actual notice of the Government; its apparatus and resources for the fulfillment of the required duty were deliberated upon, explored, and understood. In truth, no practical difficulties did exist. But, whether or no this plain and easy execution of the practical duty itself could not become uncertain, difficult, and even impossible, by the adoption of theories and methods and agencies which, framed only diverso intuitu, naturally ended in failure, is a very difficult question. These constant failures were never from ignorance, from accident, or misfortune. They were not like the failures which may happen under any Government, where remoteness of ports, impediments of communication, obscurity, and insignificance of the projects and the vessels themselves, give opportunity for concealment and surprise. Such are the instances industriously collected in the British Case and Counter Case from the earliest years of the existence of the Government of the United States, and again in the period of the Spanish-American and PortugueseAmerican hostilities. The situations are very dissimilar; the conduct of the British Government here, and of that of the United States at those early periods, proceed upon very different systems; the causes of failure, as bearing upon responsibility therefor, are entirely distinct. It is quite agreeable to be relieved from puzzling over the complexities, and delicacies, and obstacles which seemed to embarrass Her Majesty's Government, under Earl Russell's management of this international duty, in reference to so simple a matter as arresting these great ships of war, the Florida, the Alabama, the Georgia, and the Shenandoah, by the frank and practical view of the duty and the task ex |