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tablishing foreign commerce, or maintaining maritime hostilities, from its own resources.
The right to do this anquestioned. Other
II. The principles of the law of nations recognize this necessity which the vigor and magnitude of rebel hostilities may impose nations no parties to upon the government of a nation, and attribute to a resort the conflict. to its belligerent powers, in such case, no consequences affecting the attitude toward each other of the parties to these hostilities. Other nations are, manifestly, no parties to the conflict, and cannot become such parties, unless by choice, which is intervention, or by the enlargement of the theater of hostilities, or their actual course, forcing upon their notice such questions as specifically arise for solution. The effect of intervention is unequivocal. If attempted in aid of the belligerent sovereign, but without his request, it is officious, and may be unwelcome. If in aid of the rebels, against the sovereign, it is an espousal of their cause, and an act of war against the belligerent sovereign. In such a case, no situation of neutrality arises.
Abstinence of intervention by another power is not "neutrality."
It is a maintenance of previously existng relations.
But, if a nation abstains from intervention in the conflict between a sovereign nation and its rebels, it is inaccurate to treat this abstinence as neutrality. It is simply an unbroken maintenance of the international relations which subsisted between the two powers before the domestic peace of one of them suffered disturbance. It would shock the moral sense of civilization to speak of the United States as standing neutral between Great Britain and the Sepoy rebellion in India, or of Great Britain as standing neutral between the commune of Paris and the government of France.
Other powers have
only whether they
ercise of belligerent
But, when the actual hostilities in which a government is engaged, in the suppression of a rebellion, encroach upon the estab to decide in such case lished relations between it and friendly powers, the latter acquiesce in the ex- have presented to them the question whether they will, each powers by the sov for itself, acquiesce in the exercise of belligerent powers, as sought to be made effective against the rebels, at the cost of inteference with the peaceful rights of commerce and intercourse which subsisted before the nation was brought into this stress by its domestic rebellion.
But this question, under the rules governing the subject in the modern law of nations, can have but one answer. The nation which has superadded belligerent rights to those of sovereignty, is entitled so to do, and resistance by other nations to the fair consequences of such rights upon their interests, is a violation of the law of nations, and an unjust intervention in the domestic conflict.
hmits of the sover
In regard to the hostilities prosecuted against the sovereign by the rebel, if they should pass beyond the bounds of intestine beyond territorial war and obtrude themselves upon the notice of other sovergn should be decid- eign powers, the actual occurrences which raise the question ed as they arise. of their treatment by such powers may be trusted, also, to solve it. If the rebels should exhibit their strength by a blockade of any of the ports of the nation, or should keep the seas with cruisers, and assert the right of search, of capture, and of prize condemnation, against the ships or cargoes of another nation, the power thus affected will determine for itself how it will treat this new disturber of its peaceful rights and interests. It has no antecedent obligations of friendship, of treaty, or of recognition, even, which compel it to acquiesce, under the law of nations, in the legitimacy of this violence. It may pierce by force the rebel blockade which impedes its commerce, resist and resent the search and capture which threaten its maritime property, and reject
the asserted prize jurisdiction as working no change of title. And it may do all this, without, in the least, taking part in the hostilities of the government against the rebels or espousing its cause, but simply in maintenance of its own rights and interests.
Undoubtedly, it is competent for other nations upon whose notice the hostilities of rebellion, revolution, or revolt may obtrude themselves, to yield such assent and submission to their exercise, to the disturbance of their own rights and to the disparagement of their own interests, as, under sentiments of justice, fair play, or humanity, they may find an adequate motive for.
Such course Cures impartiality and when justified by
results, an equality parties, which known as neutrality
This course tends to, and naturally results in, a tacit toleration of this violence as in the nature of belligerent power, because it is practiced in that sense and under that justification by those who exert it. Placed, then, between the contending parties in the attitude of obligatory submission to the belligerent right of the sovereign, and of voluntary tolerance of the belligerent practices of the rebels, other nations fall tween rightful belgradually into an equality and impartiality in dealing with the rightful belligerent power and the de facto belligerent force, which assimilates itself to the status which, between two rightful belligerent powers, is called, in the law of nations, neutrality.
when exercised be
This principle of public law, which we here insist upon, that is to say, the right of a sovereign engaged in the suppression of rebel- This principle rec lion, to superadd belligerent powers to its resources of ognized bythe United peaceful authority in dealing with the hostilities urged Court. against it, and to expect from other nations an acceptance of the situation, as toward the sovereign so engaged, with the same consequences to themselves as if the same belligerent powers were put forth in solemn war, had been definitely held by the Supreme Court of the United States in a celebrated judgment pronounced by Chief Justice Marshall in the case of Rose v. Himely, in the year 1808. The case arose upon the exercise of belligerent powers by France in attempting to reduce the revolt of the island of San Domingo, and is reported in 4 Cranch, (Sup. Ct. Rep., p. 241.) It was only necessary, therefore, for the inferior courts of the United States, and for the Supreme Court on final appeal, in establishing this principle of public law in its operation upon other nations, when the United States were exercising belligerent powers in suppression of their domestic rebellion, to follow the reason and authority which had been accepted, as a rule of the law of nations, in this early case. We refer to the judgment in the "prize causes," reported in 2 Black's Sup. Ct. Rep., p. 635.
III. The only notable. instances, before the rebellion in the United States, perhaps the only instances, in which friendly nations have been placed by this obligatory recognition of belliger- in point. ent rights in the sovereign, and voluntary tolerance of belligerent powers in rebels, in an attitude assimilated to neutrality, have been where the conflict was of subject states seeking to recover their freedom, or between revolted colonies and the mother country, where independence in position, in boundaries, in interests, in population, and in destiny, already existing, in fact the only tie which remained to be severed was that of political sovereignty, and the severance of that tie was the only motive, object, operation, and expected result of the revolt. In such cases, the tendency on the part of other nations to adopt. a practical neutrality is greatly prompted and facilitated by the political nature of the conflict, and the further consideration that the intervening seas, the common possession of all nations, are, necessarily,
Belligerent powers belong to the sover eign of right; to the
included in the theater of the war, and must become, more or less, the theater of actual hostilities. From such conflicts, every feature of domestic or intestine rebellion is necessarily absent. They are as dissimilar as are the throes of natural birth from the violence and horrors of mutilation. This difference asserts itself, at once, to the public judgment of other nations, and, scarcely later, to the contending parties, and thus, by the progress of the conflict, a habit of practical neutrality is easily established. But this habit imports nothing inconsistent with the principles we have insisted upon. The allowance by other nations of belligerent methods to the sovereign, is rebel, of utterance. obligatory, systematic, and as his right. The allowance of them to the rebels is voluntary, pro re natâ always, and of sufferance. IV. In the first moments of the conflict, and when its confinement, as a domestic rebellion, within the territory of the United States, was successfully engaging the attention and the Britain was an inter- naval strength of the Government, Great Britain intervened, and assumed, by an act of sovereignty, exercised by the royal prerogative of the Crown as the representative of the nation in its foreign relations, to exalt the rebel hostilities to the same level with the belligerent rights of the United States in their suppression, and to place itself in the same attitude in reference to the conflict, as if it were a public war waged by two nations in their sovereign right, towards whom, under the law of nations, Great Britain was under equal obligations, independent of any choice, to respect their belligerent operations and maintain neutrality.
Conferring belligerent rights on the insurgents by Great
The circumstances under which this celebrated proclamation of the The Queen's proc Queen of Great Britain, of the judgment of that nation upon, and its purposes toward, the conflict pending within the territory of the United States between that Government and the rebels against its authority, was made, are set forth in Part II of the Case of the United States, pp. 43-65, and in Part II of the Case of Her Majesty's government, pp. 4-9. Our present purpose in referring to it is, merely, as being the first step taken by Great Britain in its relations to the conflict in the United States, which, as they showed themselves throughout its course, and have formed the subject of diplomatic correspondence between the two governments, and, finally, of the first eleven articles of the treaty of Washington, have given rise to the contentions between Great Britain and the United States which are submitted to this tribunal. It is only in its bearings upon these issues that we now comment upon its character and consequences, interpreted by the law of nations, as exhibited in the actual events that followed it.
(a.) This proclamation, issued in London on the 13th of May, 1861, Was voluntary and was purely voluntary, and anticipated the occurrence of any practical occasion for dealing with any actual rebel hostilities, which had invaded, or threatened to invade, the peace or dignity of Great Britain, or the security of the maritime or other property or rights of its subjects.
tween the two ov eruments.
(b.) It was not required, in the least, in reference to the relations of Was not called for Great Britain to the United States. They were fixed by by the relations be intercourse, by friendship, and by treaties, in all general aspects, and by the principles of the law of nations, applicable to the new situation, which we have already insisted upon. (c.) It had no justification in the public acts by which nations anHad no justi ca nounce to their people and to the world their sovereign purpose to take part in, or to hold aloof from, a public war
waged between sovereign powers, and thus enable their subjects to conform their conduct to the purpose, thus proclaimed, of their government. The existence of a civil war within the territory of a nation, certainly does not call for a proclamation from other powers that they do not espouse the cause of either party to this domestic strife.
And changed the
tween Great Britai
(d.) The intervention of this public act of Great Britain produced certain important changes in the moral and in the legal relations in which its subjects, its commerce, its wealth, all legal relations be its manifold resources, if aroused to active interference in and the insurgents, aid of the rebellion, would stand, in the public opinion of the world, in the municipal jurisprudence of the realin, and in the doctrines of the
law of nations.
Its effect upon the act of carrying on war on the high seas.
So long as the rebellion in the United States remained unaccredited with belligerent rights, all maritime warfare in its name would have borne the legal character of piratical violence and robbery. It would have been justiciable as such everywhere, and punishable according to the jurisdiction to which it was made amenable. "With professed pirates there is no state of peace. They are the enemies of every country, and at all times; and, therefore, are universally subject to the extreme rights of war." (Ld. Stowell, in case of the Le Louis, 3 Dods. Adm. Rep., 244, 246.) "As every man, by the usage of our European nations, is justiciable in the place where the crime is committed, so are pirates, being reputed out of the protection of all laws and privileges, to be tried in what parts soever they are taken." "They are outlawed, as I may say, by the laws of all nations, that is, out of the protection of all princes and of all laws whatsoever. Everybody is commissioned, and is to be armed against them, as against rebels and traitors, to subdue and to root them out." "That which is called robbing upon the highway, the same being done upon the water is piracy." "When this is done upon the sea, without a lawful commission of war or reprisals, it is downright piracy." (Sir Lionel Jenkins, as cited in 1 Phill. Int. Law, §§ 356, 358.) The interposition of the Queen's proclamation relieved from the terrible proscription, pursuit, and punishment thus denounced, all who should take the seas in aid of the rebellion against the United States, and exposed them, at the worst, to the municipal penalties of the foreign-enlistment act, or the fate of prisoners of war.
Its effect upon commercial con
So, too, all commercial contracts, including the raising of money by loan, the building or fitting of vessels, the sale of arms or munitions or other supplies in aid of insurrection or domestic rebellion in a foreign state, are absolutely condemned as immoral in the law of England, and are proscribed by the courts of justice. (3 Phill. Int. Law, § 151; Forsyth Cons. Law, pp. 236-7.) The effect of the Queen's proclamation was to relieve all such contracts in aid of the resources of the rebellion from this proscription for immorality, which, otherwise, the law of England applied to them.
It was followed by
tions in of the
V. This public act of the government of Great Britain, of such profound import in its bearing upon the conflict which the United States were addressing themselves to, opened to the extematic contribu minds of the British people entirely new relations, moral, insurgents. political, and legal, with the pending hostilities, and was followed by an active, constant, and systematic contribution from their inexhaustible financial and commercial resources, in supply of the deficiencies of the rebels, and in reduction of the disparity of strength between them and their Government. The methods and the results, in their nature and magnitude, of this participation of the people of Great Britain in the
domestic conflict which raged in the United States, are presented to the notice of the tribunal in the Case of the United States, are attempted to be qualified or justified in the Case and Counter Case of Her Britannic Majesty, and are displayed in the volumes of evidence submitted in support of the opposite contentions of the parties before the arbitrators. They were the subjects of contemporaneous correspondence between the two governments, in detail, at every stage of their occurrence, and, since the suppression of the rebellion, the adverse views of the govern ments concerning them, by the fortunate result of a long, a difficult, and an honorable and amicable course of negotiation, have been put in the way to a final settlement by the judgment and award of this tribunal. It only remains for us, under this division of the argument, to direct the attention of the arbitrators to the situation in which the governments of Great Britain and the United States stood toward each other, and to the subjects of difference between them, at the close of the domestic hostilities in connection with which they had arisen, and to the disposition of those differences sought to be accomplished by the treaty of Washington and the friendly deliberations of the arbitrators. VI. The United States, notwithstanding the incompetency of the re
The United States sidered great juries.
sources of the rebellion in these regards, and the adequate power and success of the Government in suppressing any such efforts, suffered during the conflict, in a very great degree, the injuries which can only be inflicted by hostile commerce and maritime warfare. In the three forms which make up the struggles of maritime war, foreign trade in contraband, violation of blockade, and prize capture, the United States were seriously vexed throughout their conflict, although they were engaged with an adversary which had no commerce, could build, equip, arm, or man no ships, kept open no ports, could furnish no convoy, offer or meet no naval battle, bring no prize infra præsidia or under judicial condemnation. By these maritime hostilities, their immense naval force was kept constantly occupied for four years, and their commercial marine was plundered, burnt, and driven from the seas. Their carrying trade in the commerce of other nations was swept away from them, and, in their own commerce, placed at a disadvantage in rates of insurance and freight. In a word, without a maritime enemy or a naval war, the United States suffered the stress, the injuries, and the losses which only naval belligerency could inflict. VII. In looking for the agencies and operations which had wrought these disasters, the public history of the hostilities, and not from aid and assist less the definite and comprehensive proofs laid before this British jurisdiction. tribunal, exhibit them as worked out by schemes and enterprises of British origin, maintained by British resources, and placed at the service of the rebellion, under whatever motive of cupidity, of sympathy with that cause, or of enmity to the United States. Systems of British contraband trade, and organized merchant fleets for the breach of the blockade established by the United States; the British possessions, neighboring to the theater of the domestic war, made depots of hostile trade and covers for naval war
ne originating in
ships of war, British-built, armed and supplied, swift and vigilant for the destruction of peaceful commerce, swift and vigilant in elusion of armed pursuit these were the agencies and operations which the rebel hostilities wrought into the service of their maritime war, and these the au