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ARGUMENT. to avoid partiality to one contrary to the law of nations. That
is the whole and sole connexion of those rules with the subject of international law. I think I will not pursue the matter further, though that connects itself with the American statute ; for I may conveniently, I think, take up the history of the American statute when we begin to-morrow.
Mr. Mellish.--If your Lordship will allow me, I will hand you up this copy of the decree about the “Oreto."
Adjourned to to-morrow morning at ten o'clock.
FOURTH DAY.-Friday, 20th November 1863.
Mr. Attorney General.—My Lords, when your Lordships rose ARGUMENT. yesterday I had been referring to a subject which was treated
4th Day. as of considerable importance by my learned friend, although in my opinion when its meaning and bearing are rightly understood, it will turn out to have none; yet I do not wish to leave that undemonstrated, and therefore I will say a little more about it. I allude to the rules which were made by President Washington and by his Government, on the 3rd of August 1793. They were headed, “ Rules adopted by the American Cabinet as “ to the equipment of vessels in the ports of the United States “ by belligerent powers, and proceedings on the conduct of the “ French Minister.” My Lords, it was an act of state, a political act, which was undoubtedly in this sense connected with rules and principles of international law--that it was warranted by those rules and principles under the circumstances in which the United States were then placed; but the notion of its being intended to be, or being in any sense whatever, an abstract declaration of the obligations and the rights of neutral states under those circumstances, is one for which there is absolutely no foundation either in history or in law.
Now, the real circumstances connected with those rules, will be best understood, I think, by, in the first place, bearing in mind the principles of law which I mentioned yesterday, and which your Lordships will find stated and explained concisely, but at sufficient length, at the beginning of the lecture of Chancellor Kent, from a passage of which Sir Hugh Cairns read to your Lordships upon that subject; it is a lecture on the general rights and duties of neutral nations; and for my purpose it will be quite enough to call your Lordships' attention to the short headings in small letters at page 124 and page 126, to show what is the nature of the subject which is being treated of by Chancellor Kent in that lecture, and in the passages which precede the one cited by my learned friend as to these rules. The first head is, “ Neutrals must be impartial.” That was what I mentioned to your Lordships yesterday. Now, that stands on common sense, evidently, but it is a principle recognized by international law, that if a neutrality is professed, it shall be an impartial neutrality. 8341.
ARGUMENT. Consequently you will not give advantages to the one belligerent
which you refuse to another, unless, indeed, (for it seems to be 4th Day.
considered, by the writers on international law, subject to this rather remarkable exception,) you are bound to do so by some antecedent positive engagement entered into with the one party not in contemplation of those particular hostilities. It seems to be thought that, subject to that qualification, it is a settled maxim; and so far it is a duty of neutrality towards other Governments, that you will be impartial, that you will not give to the one an assistance or a liberty within your dominions which you do not equally allow to the other. That is the branch of the subject which relates to the duty of a neutral towards the belligerents. Then the next head is at page 126, which is the duty of the belligerents towards the neutral. “ Neutral “ territory inviolable.”
Mr. Baron Channell.- Are you citing from the marginal paging?
Mr. Attorney General. - It is at page 126 of my edition ; there are just within an inner margin in small letters, the words “ neutral territory inviolable."
Mr. Baron Channell. Your edition is a later one than mine; the marginal paging is preserved throughout all the editions.
Mr. Attorney General.-I beg your Lordship’s pardon, page 117 is the marginal paging.
Mr. Baron Channell.-I have got it now.
Mr. Attorney General.—Having mentioned the duty of impartial neutrality first, which is a duty as I have said of the neutral to the belligerents, he now mentions the duty of the belligerents to the neutral, “neutral territory inviolable ;" and he goes into that.
My Lords, I of course am not going to detain your Lordships from the real question by a disquisition upon these subjects; but it will be perfectly well known to all I think who have examined the books, that even a capture or an act of hostility within the neutral territory is a wrong to the neutral rather than a wrong by the one belligerent to the other; and it is upon the ground of vindicating their own rights, that neutrals, whose territory may be invaded by acts of this description, in comity take care that restitution is made to the other belligerent. Therefore Kent, after stating the duty of impartiality by neutrals towards belligerents, goes on to mention the duty of belligerents towards neutrals
--that there is to be no violation of territory. That duty extends to this. In the first place there is of course to be no act of hostility, nothing of that nature which Sir Hugh Cairns spoke of as a proximate act of hostility, within the neutral dominion; not only that, but no acts or operations whatsoever connected with the war and having for their object the promotion of the war are to take place within the neutral territory on the part of either belligerent, without the consent and permission, and against the will of the
neutral sovereign. That is the basis and the principle of Wash- ARGUMENT. ington's rules. That is to say, it was to protect their own neu
4th Day. trality from the assertion against their will by the French Republican Government of the right to arm and organize vessels of war and expeditions within their territory, which the history shows that the French Republican Government were asserting upon a strained construction of negative terms in a treaty.
Now the political circumstances connected with that act of Washington, which it is quite necessary to remember in order thoroughly to understand the matter, were these. The United States Government, before issuing the rules which I have been mentioning, which was on the 3rd of August 1793, had upon the 5th of June in the same year given notice to the French agents within their dominion, that they would not permit those things to go on any longer which were being done; and had insisted that they should not bring in any prizes taken by any vessels which might be equipped or got ready for war after that date. But the French Minister and his agents continued to do it in spite of the United States Government, and that Government from reasons of policy, though they had engaged to Great Britain to prevent it, abstained from using the means in their power for a certain time to enforce those regulations. Your Lordships will find the state of the case very distinctly explained in a letter of Mr. Jefferson to Mr. Hammond, dated the 5th of September 1793, which is an annex to the treaty between Great Britain and the United States of the year 1794–5. My Lords, I am reading from Martens's Collection of Treaties, the 6th volume of the Supplement, and your Lordships will find that treaty with its annex at the pages 326 to 386 of that volume. Now, as I said, this letter is annexed to the Treaty, and is referred to for the interpretation of one of its articles. And this is Mr. Jefferson's account of the circumstances, which will at once place your Lordships, I think, in a correct view of the true position of the parties, and the true meaning of this political act of the United States. After referring to a letter which he had received from the British Minister, Mr. Hammond, as to certain ships, and the previous correspondence he proceeds thus :—“We are bound by our “ Treaties with three of the belligerent nations by all the means “ in our power to protect and defend all vessels and effects “ in our ports or waters, or on the seas near our shores, and to
recover and restore the same to the right owners when taken “ from them. If all the means in our power are used, and fail " in their effect, we are not bound by our treaties with those “ nations to make compensation. Though we have no similar
treaty with Great Britain, it was the opinion of the President “ that we should use towards that nation the same rule which, " under this article, was to govern us with the other nations, " and even extend it to captures made on the high seas, and " brought into our ports, if done by vessels which had been " armed within them. Having, for particular reasons, forborne
" to use all the means in our power for the restitution of the " three vessels mentioned in my letter of August the 7th, the “ President thought it incumbent on the United States to make “ compensation for them; and though nothing was said in that " letter of other vessels taken under like circumstances, and
brought in after the 5th of June” (that was the date at which the United States Government had said, “We will not permit “ it”), “yet, when the same forbearance had taken place, it was “ and is our opinion that compensation should be equally due.” And then he proceeds to say that it would be applied to cases occurring even later, if under the like circumstances. So that the state of things is made manifest ; in the first instance, the French agents supposed that the treaty gave them not only negative rights, but positive rights to equip and arm vessels as much as they pleased within the ports of the United States, and, until the 5th of June, they did so under that impression, and no notice was given to them by the United States Government that they were not to be at liberty to do so; but on the 5th of June the United States issued a proclamation, and gave notice that this state of things was not to go on. Nevertheless, it did go on; and as Mr. Jefferson says, there were particular reasons why, although they had promised the British minister that it should be stopped, the United States Government abstained from using the means in their power to stop it. Under those circumstances they held themselves bound to make restitution, and it was under the circumstances of those peculiar treaties, by which they were bound to give effect to the rule of impartial neutrality as far as they could, and at the same time to protect themselves from the assertion by a foreign power of a right, against their will, and against the notice which they had given of their dissent and disapprobation, to equip and arm vessels within their limits, that these rules were adopted by the American Cabinet ;---and well may Chancellor Kent say, as he does say (and it is all that he says of them), that those rules had a perfectly good foundation in the law of nations. He says, at the marginal paging 122, the passage which Sir Hugh Cairns read, “The Government of the United States was warranted by “ the law and practice of nations in the declaration made in “ 1793 of the rules of neutrality, which were particularly recog“ nized as necessary to be observed by the belligerent powers “ in their intercourse with this country. These rules were," and then he states the substance of those rules, without their exceptions, and I will refer to them in a moment, as far as is necessary. He goes on to say, “Congress have repeatedly by statute “ made suitable provision for the support and due observance “ of similar rules of neutrality, and given sanction to the prin
ciple of them, as being founded in the universal law of nations." The principle of them to which he refers is merely this,—on the one hand the observance of the obligation of an impartial neutrality towards the belligerents, and, on the other hand, the protec