which, if sanctioned by Parliament, would have the effect of giving greater power to the executive to prevent the construction, in British ports, of ships detained for the use of belligerents. But Her Majesty's government consider that, before submitting any proposals of that sort to Parliament, it would be desirable that they should previously communicate with the Government of the United States, and ascertain whether that Government is willing to make similar alterations in its own foreign-enlistinent act, and that the amendments, like the original statute, should, as it were, proceed pari passu in both countries. I shall accordingly be ready to confer at any time with you, and to listen to any suggestions which you may have to make by which the British foreign-enlistment act and the corresponding statute of the United States may be made more efficient for their purpose. Mr. Adams did not give any answer to this in writing, but, on the 14th of February, 1863, Lord Russell informed Lord Lyons: I had a conversation a few days ago with Mr. Adams on the subject of the Alabama It did not appear that his Government desired to carry on the controversy on this subject from Washington; they rather left the conduct of the argument to Mr. Adams. On a second point, however, namely, whether the law with respect to equipment of vessels for hostile purposes might be improved, Mr. Adams said that his Government were ready to listen to any propositions Her Majesty's government had to make, but they did not see how their own law on this subject could be improved. I said that the cabinet had come to a similar conclusion; so that no further proceedings need be taken at present on this subject.1 On the 27th of March Lord Russell told Lord Lyons that the subjecs had been again mentioned. "With respect to the laws itself, Mr. Adamt said, either it was sufficient for the purpose of neutrality, and then let the British government enforce it; or it was insufficient, and then let the British government apply to Parliament to amend it. I said that the cabinet were of opinion that the law was sufficient; but that legal evidence could not always be procured."2 The revision of the British act of 1818, upon the recommendation of the neutrality laws commission, has already been noticed in Part II. An attempt was made in 1866 to revise the American act, but in a very different spirit. On the 11th of July, 1866, a week after the Fenian raid on Canada, a resolution was passed in the House of Representatives instructing the Committee on Foreign Affairs to inquire into the expediency of reporting a bill for the repeal of the act of 1818; and, in compliance with this instruction, the committee presented a report on the 25th of July, accompanied by a bill which was accepted and passed on the following day by a unanimous vote. The report and bill are given in the Appendix, vol. v, p. 343 The following extracts from the report will show the views of maritime neutrality entertained by the committee, and indorsed by the House: The American statute is not demanded by international or natural law. According to these systems nentrality is impartiality. A state, in virtue of its sovereignty, [152] has an inherent and *indefeasible right to remain neutral as between other states at war. This neutrality implies, on one part, impartiality; on the other, inviolability. The state cannot inflict, and is not bound to suffer injury. It is a temporary condition, incident to the situation, and not necessarily permanent. An attempt to impose upon a people permanent neutrality, especially if that word is interpreted to mean, as in our legislation it does, an estrangement, abscission, and isolation of the state from other nations, is opposed to the true principles of public morality and law. To make such a system permanent is impracticable. It can be justified only by a regard to the emporary condition of states by which it is enacted. The highest interests of civilization demand that the liberties and rights of neutrals should be extended, and the 1 See vol. i, p. 668. The correspondence will be found also in the Appendix to the British Case, vol. iv, No. 1, p. 48. Appendix to British Case, vol. iv, No. 2, p. 2. privileges and powers of states at war diminished. Upon the recognition of this principle depends the progress of nations, the independence of states, the liberties of the people. To restrict the rights of neutrals and enlarge the power of belligerents is to reject the teachings of Christianity and the improvements of civilization, and to return to the doctrines of uncivilized nations and the practices of barbaric peoples. In reviewing the statute of 1818 we cannot escape the conclusion that it is founded upon an opposite and unsound philosophy; that it disregards the inalienable rights of the people of all nations; that it was imposed upon the country by considerations affecting exclusively the political interests of other nations; that it criminally restrains the rights of nations at peace for the benefit of those at war; that it was intended to perpetuate the supremacy of favored nations on the sea. It properly belongs to another age, and is not of us or for us. It was in deference to the conditions then imposed that American legislators thought it expedient to divest this country of rights enjoyed by others, indispensable to the development of the strength of republican institutions and the American States, and to inflict upon their people the irreparable injury of depriving them of privileges necessary to their private prosperity and the preservation of the liberties of their race. It is incredible that it should have been thought necessary permanently to suppress as crimes on the part of our citizens transactions which are not punished as crimes elsewhere, for the benefit of nations inimical, if not hostile, to us, and against states struggling for independence and liberty in emulation of our own example. No; these concessions to the peace of the world were made for the time when they were enacted. It was an opportune and patriotic policy. The preservation of the republic was the first duty of our fathers, as it is now ours. It is destined, if sustained, to be the grand disturber of the right divine of kings, the model of struggling nations, the last hope of the independence of states and of rational liberty. To the example and prospect of our fathers we still adhere. But if the time has come for which they waited and worked, or whenever it shall come, in which the rights of the country can be asserted, its interests protected without departure from the established policy of our government, which we indorse without hesitation, and to which we adhere without reservation, it is our opinion that the opportunity should not be lost. And we therefore recommend, as incident to this duty and this day, a thorough revision of the statutes affecting our national relations with other governments, aud the enactment of such laws as will limit its prohibitions and restrictions to those imposed by the laws of nations, the stipulation of treaties, the reciprocal legislation of other governments, the freedom of commerce, the independence of states, the interests of civilization, and that will curb the power of nations at war, and strengthen and extend the rights of those at peace. Ships are articles of commerce; they are in no liberal or just sense contraband of war, nor are the materials of which they are made. The recent improvements in naval architecture are such as to diminish the distinctions between merchant-vessels and ships of war, and to facilitate the adaptation of one to the purposes of the other. A strong-built, swift-sailing merchant vessel or steamer could be made with a single gun an effective war vessel. To prohibit our citizens from building such vessels or selling material for their construction at a time when all nations, except our own, are at war, because they may be employed for hostile purposes by foreign subjects, or to demand bonds in double the amount of vessel, cargo, and armament, and to require officers of the customs to seize and detain them whenever cargo, crew, or "other circumstances" shall render probable a suspicion that they are to be so used, and where American citi. zens are part owners only, is substantially to deprive them of their rights to engage in the construction of vessels or to furnish materials therefor. Considering the limitless capacity of the country in this respect, it is a privilege that ought not to be surrendered except upon grounds of absolute necessity and justice.-(Appendix to British Case, vol. v, pp. 347, 348.) The principal alterations proposed in that bill were to make it clear that "fitting out" a vessel for a belligerent was not prohibited, and that there must be "fitting out and arming;" to repeal the clauses known as "bonding clauses;" to insert a declaration that the act should not "prohibit citizens of the United States from selling vessels, ships, or steamers built within the limits thereof, or materials or munitions of war the growth or product of the same to inhabitants of other countries not at war with the United States;" and to repeal the clauses making it an offense to begin or set on foot, or provide or prepare the means for any military expedition or enterprise to be carried on from the limits of the United States against any foreign country at peace with the United States, (the clause under which the Fenian leaders were prosecuted,) and which authorize the President to employ the military or naval forces of the republic to prevent such expeditions. The bill did not become a law, as the Senate refused to pass it without consideration, and referred it to the Senate Committee on Foreign Relations; and Congress adjourned without the committee having made a report. The immediate effect of the bill, if passed, would have been to facilitate the dispatch from the ports of the United States of vessels to be employed by Chili and Peru in the war they were then carrying ou against Spain. POSITION AND DUTIES OF THE LAW-OFFICERS OF THE CROWN IN ENGLAND. Annex (C.) As it has been necessary to refer from time to time to the opinions given by the British law officers, it may be conyenient to explain more precisely than has been hitherto done what is their position as the legal advisers of Her Majesty's government. In England there is no ministry of justice or similar department of state to which recourse can be had by other departments when matters are brought before them on which a decision involving a question of law is required. This want is supplied by the appointment of three law-officers, as they are called. Two of these-the attorney-general and solicitor-generalare barristers or advocates, with seats in the House of Commons, who have been selected by the ministry of the day, and who leave office when that administration is changed. They occupy, therefore, a double position-as the confidential advisers of the government on legal subjects, and as the natural defenders and expounders in Parliament of the proceedings which the government may adopt upon their recommendation. The third law-officer-the Queen's advocate-is a permanent official, and does not leave office on the resignation of the ministry by whom he was appointed. It has been usual to select for this office a barrister who has a special knowledge of civil and international law; and he is in consequence more particularly the legal adviser of the foreign office. Like, however, the attorney-general and solicitor-general, he has private practice as an advocate, and has generally numerous duties devolving upon him in connection with ecclesiastical and civil jurisdiction. The law-officers have no bureau or office set apart for their use, and no regular staff of assistants or archives. As the Queen's advocate therefore frequently possesses, from the permanent character of his appointment, a knowledge of official precedents with which the other lawofficers may not be familiar, he generally acts as their draughtsman in the preparation of reports. Up to the date of Sir John Harding's retirement the Queen's advocate's name stood first in the patent or letter of appointment under which the law-officers act; and he had, therefore, precedence over the other two. The result was that papers on which an opinion was requested were sent to him first, and, when he had pe rused and written his minute upon them, were passed on to the attor ney-general, and afterward by him to the solicitor-general. In all cases of importance, and particularly when time is pressing, it is usual for the three law-officers to meet and confer together, after they have all read the papers, the appointment for the purpose being usually made by the senior in rank of the three. Having thus shown the position occupied by the law-officers toward each other, and toward the government, it remains to explain the manner in which papers are referred to them, taking as an example questions arising under the foreign-enlistment act of 1819. By the 5th, 6th, and 7th clauses of that act the officers of customs and excise were empowered to seize and detain vessels in case of contravention of the act, in the same manner as vessels were seized and detained under the laws for the protection of the revenues of customs and excise, or the laws of trade and navigation. The duties of the officers of customs being primarily for the collection and protection of the revenue, the collectors or other head officers of the customs at the ports are under the authority of the lords commis sioners of Her Majesty's treasury, of which department the board of customs in London is a branch office. When, therefore, the consul of a foreign belligerent power has a complaint to make at a port that the foreign-enlistment act is being contravened to the prejudice of his country, he proceeds to the collector of customs, and lays before him the evidence he may have to adduce in support of the charge. This evidence is generally in the form of written statements, or affidavits, drawn up in proper shape, and sworu to, or solemnly declared to be true, before a magistrate. Copies or duplicates of these affidavits will then be forwarded by the customs collector to the board of customs in London, and by the consul to the diplomatic representative of his country. In London the board of customs will transmit the affidavits to the treasury, and probably also take the opinion of their departmental legal adviser upon them. Some little time is consumed in the mere transmis sion of the papers, the custom-house being situated on the Thames, below London Bridge, and the treasury in Whitehall, near the Houses of Parliament, the distance between the two being about three miles. The treasury will next send the papers to the foreign office, and ask instructions. In the meanwhile the foreign minister will have [154] received the affidavits and dispatch inclosing them from the *con sul, and will likewise bring or send them to the foreign office. The secretary of state for foreign affairs immediately directs them to be transmitted to the law-officers for their opinion. This is done by writing a letter addressed to the three law-officers, and requesting their opinion upon the papers at their earliest convenience. This letter is taken to the senior law-officer, either to his chambers or to the court in which he may be, or sometimes to his private residence; he, when he has read and considered the papers, either sends them on to his colleague next in order of precedence, (by whom, in that case, they are transmitted to the third,) or makes an appointment for a meeting to deliberate on the subject, in the mean time retaining the papers in his own hands. When all the law-officers have had the opportunity of sufficiently considering the papers, they consider, in consultation together, the draught report, (prepared usually, as previously stated, by the Queen's advocate, and a letter is drawn up, fair copied, and signed by them, containing their opinion. This letter is sent to the foreign office, and the secretary of state is guided by it in the reply which he gives to the treasury and foreign minister. |