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ought to have been restored to her original owners. This is the utmost extent to which the authority of the case of the Gran Para could ever be supposed to go. But the circumstances are, in all essential points, so widely dissimilar, as to make it no authority, even for that limited

purpose.

If, in such a case as that of the Florida, the neutral State were held liable for the captures made by her in her first cruise, after leaving Mobile, it seems unavoidably to follow (and this appears to be the conclu sion actually insisted on by the United States) that there must be unlimited liability for all her subsequent cruises, and that the offense could never be "deposited."

But this is not only not a just inference from, it is in fact contradictory to, the doctrine to which Chief Justice Marshall bas always been understood in the United States to have given the sanction of his authority in the Gran Para case. Part of the Rubric, or marginal note, prefixed by the reporter to that case, is in these words: “A bonâ fide termination of the cruise, for which the illegal armament was here obtained, puts an end to the disability growing out of our neutrality laws which does not attach indefinitely."

The Florida could not have cruised without a proper crew; it was in a port of her own country that she first obtained such a crew, and so acquired the capacity of cruising. The equipment, which she had received before reaching Mobile, was therefore only partial and incomplete. Even assuming that she obtained this equipment under circumstances which involved some failure in the use of proper diligence on the part of Great Britain, on what principle can Great Britain be charged with all her subsequent captures? Would not such a principle involve the liability of a neutral State to be charged with all captures made by a vessel which had obtained, within its territory, through some want of due diligence on the part of its authorities, any kind or degree whatever of equipment, or augmentation of warlike force, however impossible it might be to prove that such equipment or augmentation of force was the proximate cause of any of her captures, and in however large a degree other causes may have evidently contributed to her means of offense! If what was done to the Florida at Mobile had been done in a Spanish port, by the permission or culpable neglect of the authorities; if, after lying for four months in a Spanish port, she had there, for the first time, obtained a fighting crew, and had been dispatched from thence to prey upon American commerce, would it still have been contended that Great Britain, and not Spain, was liable? Or would it have been contended that both Great Britain and Spain were liable, under such circumstances, and that the liability of both was indefinite and unlimited till the conclusion of the war? Will the Tribunal give its sanction to such doctrines as these, not only without any aid from authority, but in opposition to all the light which is derivable from the reason and analogy of the doctrines of international jurisprudence, and of the jurisprudence of the United States themselves, in other cases, which ought to be gov erned by similar principles ?

The legitimate inference, from the analogy of the law as to breach of contraband, is, that any responsibility which Great Britain may have been under as the neutral State from which the Florida was introduced into Mobile, came to its natural end when (having previously committed no act of war) she was once at home in that port, and became bona fide incorporated, within their own territory, into the naval force of the Con federate States. The legitimate inference from the doctrine of Chief Justice Marshall, in the case of the Gran Para, is, that having been once

bona fide received into Mobile, as her proper port, and having been there manned, and dispatched from thence for her subsequent cruise, an effectual line of separation was drawn, for all legal and international purposes, between everything which had occurred before she entered into that port and everything which occurred afterward; and that (no hostile cruising against the United States having taken place during the interval between her leaving Liverpool and her entrance into Mobile) Great Britain had no just cause for afterward refusing to her the ordinary immunities and privileges of a duly-commissioned ship of war of a belligerent Power, and certainly was not under any obligation toward the United States to do so, even if a different rule would have been applicable to such a ship as the Alabama, which was not dispatched for her cruise from any Confederate port.

As between Great Britain and the Florida the case stood thus. Her acquittal at Nassau was conclusive, as a judgment in rem, so as to make it unjustifiable and impossible for any British authority afterward to revive against her the causes of complaint which had occurred before that acquittal; and her subsequent reception of an armament at Green Cay, not being accompanied or preceded by the enlistment of any crew sufficient for hostilities, and not being followed by any warlike operations before her entrance into Mobile, though it was an infringement of Brit. ish municipal law, was not such an offense by genera linternational law as to call for or justify war or reprisals against the Confederate States, nor such as to adhere to the ship through all subsequent circumstances. The responsibility of Great Britain to the United States, in respect of this ship, could not exceed the responsibility of the Confederate States, in respect of the same ship, to Great Britain.

35 C

ROUNDELL PALMER.

X.-REPLY OF THE COUNSEL OF THE UNITED STATES TO THE ARGUMENT OF HER BRITANNIC MAJESTY'S COUNSEL ON THE SPECIAL QUESTION OF THE LEGAL EFFECT, IF ANY, OF THE ENTRY OF THE FLORIDA INTO THE PORT OF MOBILE, AFTER LEAVING THE BAHAMAS, AND BEFORE MAKING ANY CAPTURES.

The Florida, after her illegal outfit as a ship of war in the neutral territory of Great Britain, and the completion of her armament, warlike munitions, and crew from the same neutral territory, took the seas under a Confederate commission, and after an unsuccessful attempt to add to her complement of men by violating the neutrality of Spain, slipped into Mobile by a fraudulent imposition upon the blockading vessels, which her British origin enabled her to practice. She was there imprisoned four months before she was able to elude the vigilance of the blockaders, and she obtained there, it is said, some addition to the force of the crew which she had when she entered that port. Her captures were made after she left Mobile, and a question of public law is now raised upon this state of facts, to this effect: "Is the responsibility of Great Britain to the United States for the depredations of the Florida. relieved by this visit of that cruiser to a Confederate port under the circumstances in evidence?" The question assumed that, but for this visit, the neutral responsibility for the acts of this cruiser would exist, and seeks to arrive at the significance, if any, of this visit in relieving the neutral from such responsibility. The Counsel of Her Britannic Majesty has discussed this question, and we now offer a brief reply to his Argument.

I. It is said that a limitation upon a neutral's responsibility for the acts of a cruiser, for which the neutral would otherwise continue to be responsible, may be found in the principle of the rule by which neutral trade in contraband of war and belligerent right to prevent it are regulated. This rule is understood to be, that the belligerent right to intercept or punish trade in contraband, carried on by a neutral, must be exercised during the guilty voyage, and that its termination ends the bel ligerent's redress and the neutral's exposure. The view which we take of this suggestion makes it unnecessary to consider whether the more strict or the more liberal measure of the duration of the guilty voyage is the proper one.

It seems to us that it needs but little attention to the nature of this struggle between neutral right to trade and belligerent right to restrict and defeat that trade, and to the solution of these conflicting and com peting rights which the law of nations has furnished, to reject the analogy as valueless in the present discussion.

Neutral nations properly insist that their trade is not to be surrendered because of the war between the two belligerents. But they concede that the belligerent Powers, as against each other, may rightfully aim at the restriction or destruction of each other's commerce. How far the belligerent may press against his enemy's commerce, which, in turn, is also the neutral's commerce, and how much the neutral must acquiesce in its commerce being dealt with in its character of being also the enemy's

commerce, is the problem to be solved in the interest of preserving peace with the neutrals, and restricting the war to the original belligerents.

The solution arrived at, and firmly and wisely established, covers the three grounds of (1) neutral trade with ports of the enemy under actual blockade; (2) visitation and search of neutral ships to verify the property, in ship and cargo, as being really neutral; (3) the interception and condemnation of contraband of war, though really of neutral ownership and though not bound to a blockaded port. It is with the last only that we have to deal.

There were but three modes in which the consent of nations could dispose of this question of contraband trade. First, It might have been proscribed as hostile, and, therefore, criminal, involving the nation suffering or permitting it, or not using due diligence to prevent it, in complicity with and responsibility for it. This has been contended for as the true principle by able publicists, but has not obtained the consent of nations. Second, It might have been pronounced as free from belligerent control as all other neutral commerce, submitting only to verification as really neutral in ownership, and to exclusion only from blockaded ports. This has been contended for, but has not been accepted.

The only other disposition of this conflict of rights and interests at all reasonable is that which has been actually accepted and now constitutes a rule of the law of nations. This limits the right of the bellig. erent, and the exposure of the neutral, to the prevention of the trade in contraband by warlike force for capture, and prize jurisdiction for forfeiture. Manifestly, the natural, perhaps the necessary, limit of this right and exposure, by the very terms of the rule itself, would be flagrante delicto or during the guilty voyage. To go beyond this would, in principle, depart from the reason of the actual rule and carry you to the ground of this trade being a hostile act in the sense in which the consent of nations has refused so to regard it. But, to adhere to the principle on which the rule stands and attempt to carry its application beyond the period of perpetration, would involve practical difficulties wholly insurmountable, and encroachments upon innocent neutral commerce wholly insupportable. How could you pursue the contraband merchandise itself in its subsequent passage, through the distributive processes of trade, into innocent neutral hands? But, while it remained in belligerent hands, it needs no other fact to expose it to belligerent operations, irrespective of its character or origin. Again, how can you affect the vessel which has been the guilty vehicle of the contraband merchandise in a former voyage, with a permanent exposure to belligerent force for the original delict, without subjecting general neutral trade to inflictions, which are in the nature of forcible punishment, by the belligerent of the neutral nation, as for hostile acts exposing the neutral nation to this general punitive harassment of its trade?

It will, we think, be readily seen that this analogy to contraband trade, as giving the measure of the endurance of the responsibility of Great Britain for the hostile expedition of the Florida, is but a subtle form of the general argument, that the outfit of the Florida was but a dealing in contraband of war, and was to carry no other consequence of responsibility than the law of nations affixed to that dealing. But this argument has been suppressed by the Rules of the Treaty, and need be no further considered.

II. The criticism on the celebrated judgment of Chief Justice Marshall, in the case of the Gran Para, does not seem to shake its force as authoritative upon the precise point under discussion, to wit, whether a visit to a belligerent port terminated the neutral's duty and responsi

bility in respect of a vessel which, in its origin and previous character, lay at the neutral's charge. It is not profitable to consider the special distinctions which may be drawn between the facts of the Gran Para and of the Florida in this respect. If it is supposed that other circumstances than the mere visit of the Florida to a Confederate port divested her of being any longer an instrument of rebel maritime war, furnished from the neutral nation, we fail to find in the evidence any support to such suggestions. Certainly, the fact, if it existed or was shown by any definite evidence, of the fluctuating element of actual hostilities, or navigation in the presence on board of substituted or added seamen, does not divest the cruiser, its armament, its munitions, and its setting forth to take and keep the seas, of their British origin and British responsibility. These all continued up to the violation of the blockade, which they enabled the Florida to make. They equally enabled it to take and to use in the hostile cruise the enlistments at Mobile. Yet, if there be anything in the learned Counsel's argument, it comes to this: that the seamen enlisted at Mobile became, thereafter, the effective maritime war of the Florida, and the cruiser and her warlike and navi gable qualities "suffered a sea change," which divested them of all British character and responsibility. This reasoning is an inversion of the proposition, Omne principale ad se trahit accessorium.

III. As a matter of fact, the evidence concerning what happened at Mobile by no means exhibits the crew with which the Florida left Mobile as original enlistments there. The force she took from Nassau, and which enabled her to make the port of Mobile, must have adhered to her. All the motives for such adherence continued in full force, and in a port without ships or trade, and so absolutely closed as Mobile was, there was no possible chance for them, as seamen, except to adhere to the Florida. The evidence does not contain any shipping articles, either at Nassau or at Mobile, and the list made by, or for verification by, Thomson at Liverpool, in reference to prosecutions under the For eign-Enlistment Act, was made only in reference to nationality and the place where, within Thomson's knowledge, (who did first join her at Mobile,) he found them connected with the Florida. Very possibly a form of enlistment or engagement, as from Mobile as the place of departure, if they could ever get out, for the purposes of wages or otherwise, may have been gone through at Mobile, though it is not so proved. A perusal of Thomson's affidavit will show that it, and the accompanying list, relate only to crew dating on the cruise from Mobile, or from later recruitment, and that he imports to give no evidence that there were not re-enlistments at Mobile of her former crew, except in his own case, or by incidental inference, perhaps, in some others.

IV. The learned Counsel diverges, as it seems to us, from the point open for discussion into a somewhat vague inquiry as to what should be the consequences in respect of indemnity to the United States, from the responsibility of Great Britain for the violations of her obligations as established by the three Rules of the Treaty, if the Tribunal should find Great Britain so responsible.

We have considered this subject in our Argument, submitted on the 15th of June, and need not renew that discussion unless it is required from us. Of course minute and artificial reasoning may attempt to make out that the last man essential to a crew for navigation or fighting, or the last rope or spar which she could not spare, was the guilty cause of all a cruiser's subsequent depredations, and that all preceding structure, fitment, armament, munitions, officers, and men, are absolved from any share of the guilt. This reasoning may point the wit of the

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