Chap. XIV. part of a Government is not merely something less than the greatest possible promptitude or the greatest possible care. If it were, what Government could ever hope to be free from accusations and complaints? To determine, however roughly, by general rules, the degree of care which it is fair to require in particular cases, has always been a difficulty with lawyers; in the great mass of cases the real (though not perhaps the avowed) standard of decision is found in the sentiment of justice and common sense, guided by a consideration of the circumstances.1 Difficulties of a peculiar kind arise when the party charged is a sovereign Government, and the substance of the charge is negligence or remissness in the exercise of any of the powers of sovereignty. These difficulties do not spring only from the facts that the control exercised by a Government over its subordinates, through all the grades of a great administrative service, must always be practically imperfect, and that Governments differ infinitely in respect of their power, the 1 "Le dommage qui a eu lieu," says Ortolan, speaking of the liability under municipal laws, for injuries, intentional and unintentional, "peut être le résultat soit d'actions, soit d'omissions préjudiciables : force impulsive dans un cas, simple inaction dans l'autre. Or l'on conçoit que si l'homme est généralement tenu de s'abstenir de toute action nuisible à autrui, il n'est pas également obligé de mettre son activité au service d'autrui, de veiller pour les intérêts d'un autre, et de répondre en ce point des résultats de son inaction. Mais des contrats, ou certaines relations particulières, peuvent venir lui imposer même cette dernière obligation, lui en faire.un devoir; de telle sorte qu'y manquer soit pour lui une faute."-Ortolan, Explication Historique des Instituts, vol. iii, p. 355. It must be borne in mind that the international duty now in question, the limits of which are, as we shall see, open to dispute, does not flow from the theory that Governments are responsible for the wrongful acts of their subjects, or of persons within their dominions. They are not so responsible in general, as long as they allow the injured party free access to their courts of justice; unless the acts complained of were done in execution of the orders of the Government, or afterwards adopted by it as its own. It is a practical corollary of the exclusive control which all sovereign Governments claim over their own territory a claim which might otherwise be incompatible with the security of their neighbours. machinery at their command, their habitual modes of Chap. XIV. acting, and their subjection to opinion or to law; they are due also to the consideration that the first responsibility of every Government is to its own people, and that to hold any Government strictly accountable to others for its acts and omissions, for the orders it gives to its officers, and the manner in which its powers are exercised, would be inexpedient and intolerable in practice. Hence it has not been usual, in international questions, to scrutinize narrowly the circumstances from which negligence might be inferred; and complaints of actual negligence have been urged but rarely, and with a view rather to security for the future than to reparation for the past. These considerations are, indeed, plain and obvious, and the Government of the United States is probably not insensible to them, since it is at pains to insist that the neglect with which it charges the Government of Great Britain was gross," "inexcusable,' and "extreme,"-" equivalent or approximate to evil intention." It must be clear, I think, to any one who has read the preceding chapter that the delay-for there was delay in ordering the seizure of the Alabama was really due, in the first place, to uncertainty as to the law, and, in the second place, to doubts about the sufficiency of the evidence. The Revenue Department appears to have acted on the opinion held by its legal advisers, that it was not the duty, nor in the power, of the Executive to seize a vessel which had received no armament, although apparently constructed for war. The Law Officers thought otherwise. They reported that the Alabama was liable to seizure for a breach of the Foreign Enlistment Act, though no arms had been put on board. But was the question free from doubt? On the contrary it was so doubtful that it divided at the time some of the most considerable lawyers in England, and afterwards divided the Judges of the Chap. XIV. Court of Exchequer.1 As to the sufficiency of the evidence opinions may fairly differ, but this was certainly a question on which the Government had a right to be guided by that of its legal advisers, who were not only 1 The subjoined Opinion was afterwards given, on a full consideration of all the facts, by the eminent persons whose names are attached to it, and who rank among the highest English authorities: I am of opinion that Messrs. Laird had a right to build the ship which has since been called the Alabama in the manner they did, and that they have committed no offence against either the common law or the Foreign Enlistment Act with reference to that ship. I am of opinion that the simple building of a ship, even although the ship be of a kind apparently adapted for warlike purposes, and delivering such ship to a purchaser in an English port, even although the purchaser is suspected or known to be the agent of a foreign belligerent Power, does not constitute an offence against the Foreign Enlistment Act, 59 Geo. III, cap. 60, sec. 7, on the part of the builder, unless the builder makes himself a party to the equipping of the vessel for warlike purposes. The Alabama, indeed, appears to me to have been equipped at the Azores, and not in England at all. "3, Harcourt-buildings, Feb. 6, 1863." "GEORGE MELLISH. "We entirely concur in the opinions given by Mr. Mellish on the statements laid before him, and our opinion would not be altered if the facts were that Messrs. Laird Brothers knew they were building the Alabama for an agent of the Confederate Government. "April 17, 1863." "H. M. CAIRNS, The builders of the ship, in a statement which they subsequently published in their own vindication (Times, 27th May, 1869), wrote as follows: "The contract to build the Alabama was entered into by us in the usual course of our business as a mere commercial transaction, and at a price moderate for vessels of her class, the firm which we now represent having for upwards of thirty years been in the habit of building vessels of war for our own Government, for foreign Governments direct, and for the agents of foreign Governments. "We did not supply, or engage to supply, the Alabama, either before or after she left the Mersey, with any part of her armament, provisions, coals, or warlike stores of any description, or engage any men to serve on board her, or to join her after she left the port. "We merely completed a contract to build and deliver an unarmed and unequipped ship in the port of Liverpool. "We were never informed by the purchaser of the Alabama of the arrangements he had made for manning, arming, equipping, and commissioning that vessel at a foreign port, nor had we any idea of her advocates, but advocates standing at the head of their Chap. XIV. profession. It is also possible - it certainly appears more than possible, though we do not know the circumstances that the report of the Law Officers might, with greater despatch, have been obtained a day or two sooner than it actually was. But this would having gone to the Azores until that fact was the public. . generally known by "It has been stated that in the conduct of our business in these transactions we sought our own gain irrespective of municipal or international law, thereby endangering the relations between this country and America. The opinions of the eminent statesmen and lawyers we have quoted show the building of Alabama to have been in accordance with the existing laws of England, and in 1861, when we undertook the contract, and for long after, there was nothing to show that our doing so was at variance with the opinions of our Own countrymen or with the practice of foreign nations. "But in 1864 other questions had arisen as to the rights of neutrals and belligerents, which rendered it apparent that a strict interpretation of the existing law would not satisfy those whose interests were affected, and in that year we declined to accept an order to build a large ironclad vessel for an agent of the Confederate Government, although one condition of the contract was to have been that the ship should not be delivered until the conclusion of the war. The cost, however, was to be paid to us by instalments, in such a way and so secured as to make it for us a perfectly safe and profitable commercial transaction, and we were advised by the best authority that there was nothing in our municipal or international law to prevent us taking the contract. Our private gain here was willingly sacrificed, because we felt that, from the complications that had arisen in reference to neutral and belligerent rights, a strict interpretation of the law might tend to aggravate the then existing differences between this country and the American Government, and had there been the same feeling on the subject in 1861 the Alabama would not have been built by us." 1 Mr. Adams, in a despatch to Mr. Seward (1st August, 1862), mentions an interview in which Lord Russell "remarked that a delay in determining upon the case had most unexpectedly been caused by the sudden development of a malady of the Queen's Advocate, Sir J. D. Harding, totally incapacitating him for the transaction of business." There is no other mention of this, I believe, in the printed correspondence; but it is well known that Sir J. Harding, to whom, as Queen's Advocate, the case would, according to what was then the established practice, be sent in the first instance, was at that time suffering from an attack of mental disease, from which he never quite recovered, and that this may have caused some delay in the transmission of the papers. Chap. XIV. not be a sufficient ground for charging a Government with negligence so gross and palpable as to amount to a great international wrong. It cannot be assumed, nor is it very probable, that any orders sent after the ship left the Mersey would have been effectual in stopping her, even if it had been known, otherwise than by vague report, where she was likely to be found. Whether upon these facts, and assuming that it was an international duty (the circumstances being known) to prevent the sailing of the Alabama, there is fair ground for charging the British Government with gross and injurious negligence, is a question on which perhaps neither an Englishman nor an American has a right to place implicit confidence in his own judgment. The American Government holds it "so clear that no room remains for debate," and ought to be always "taken for granted" hereafter. I have not the same confidence in my own opinion, but I know not why I should refrain from saying that the charge appears to me, on the contrary, rash and unreasonable. On the supposed international duty the remarks which I have to make may be conveniently thrown into the form of distinct propositions: 1. Neutrality is the condition of a Power which is at peace with two or more Powers at war with one another; or, more exactly, it is the relation which the former holds to the latter. The Power which continues to be at peace is neutrarum partium, or neutral. The general consent of nations, evidenced by their practice-in other words, international law-has traced out, roughly and imperfectly, but with a gradual approach to precision, the rules of conduct which a neutral must pursue if he would not forfeit the character of a neutral for that of a belligerent. Hence spring what are called the duties or obligations of neutrality. 2. No precise theoretical definition of these obligations is possible. The rules of international law on this subject are really an endeavour, more or less successful, |