Chap. XIV. about to be taken out of the dominions of the Crown, power should be given to arrest and detain her, on a warrant issued by a Secretary of State, or, within the limits of a colony, by the Governor; the burthen of proof that no violation of the Act had been committed or was intended, to be thrown, in every case, upon the owner of the ship so arrested.1 A revision of the Neutrality Laws of the United States had in 1866 been proposed in the House of Representatives; and the subject was referred for consideration to the standing Committee of that House on Foreign Affairs. The Committee reported on the 25th of July, 1866; and a Bill, partly abrogating the old law, partly re-enacting it with amendments, was introduced by the Chairman, and passed at a single sitting by a unanimous vote. It did not, however, obtain the concurrence of the Senate. The material changes proposed by this Bill, so far as they have reference to our present subject, were: 1. To remove a doubt suggested by the third section of the Act of 1818, whether the bare "fitting out" of vessels, not armed, for the naval service of a belligerent was not a prohibited offence, and make it clear that this was not prohibited, and that to constitute an offence there must be both a "fitting out and arming." 2. To repeal altogether the two clauses mentioned above, sometimes called the "bonding clauses." 3. To insert a declaration that the Act shall not be deemed "to 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 or Governments not at war with the United States." 1 It is understood that this Report has been under the consideration of the Government, but no attempt has yet been made to legislate upon it. 2 See above, p. 403, Note. 4. The Bill proposed, further, to repeal the clauses Chap. XIV. which make it an offence 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, and which authorize the President to employ the military or naval forces of the Republic to prevent such expeditions. The reasons which led the majority of the Committee to recommend these changes-and which would indeed have warranted changes still more important are thus stated in the Committee's Report: "The repeal or modification of these provisions will be, in the judgment of your Committee, for the interest of the public peace. Their effect now is to perpetuate the subjugation of States without naval force to the will of dominant maritime nations. It may reasonably be assumed that the late bombardment of the South American cities on the Pacific coast by Spain, which has been universally condemned, would not have occurred but for the stringent execution of the provisions of this law by our Government. Had the South American Governments been supplied with materials for defence from the abundant resources of the United States, the invasion of the American waters by the Spanish navy would not have been contemplated. 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 strongbuilt, 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 materials 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 circumstance' shall render probable a suspicion that they are to be so used, and where American citizens 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 this country in this respect, it is a privilege that ought not to be surrendered except upon grounds of absolute necessity and justice." Chap. XIV. Note. I abstain from any comment on the broad and striking divergence between these two sets of proposals, and between the views of international duty and expediency expressed in the Report of the Committee and those which are insisted upon in the recent despatch of the American Secretary of State. I might be thought uncandid, perhaps, if I were to assume that either the Report or the Bill expressed the deliberate and wellconsidered opinion of the House of Representatives, or of its Committee on Foreign Affairs. Were I on the other hand to treat them as hasty, ill-considered, and of no significance, I should certainly appear disrespectful.1 NOTE. Earlier American Precedents. In the course of the correspondence between the two Governments reference was frequently made to some passages in the earlier history of the United States. Generally neutral in maritime wars, with an immense line of coast and an enterprising and adventurous people, it is from the United States more than from any other nation that belligerents have tried to supply themselves with privateers, and have in fact obtained such a supply. The American Government, therefore, and American tribunals, have been compelled to grapple with this question, and the precedents set by them have always been regarded with respect. These precedents are drawn, first, from the war of 1793 between Great Britain and the French Republic; and secondly, from the wars waged by Spain and Portugal respectively against their revolted dependencies in the western hemisphere. Of the number of privateers armed in the ports of the United States against the commerce of Great Britain during the first period, and against Spain and Portugal in the second, we have, as far as I am aware, no authentic account. That they were numerous we know, both from the diplomatic correspondence which is extant, and also from the reports of cases tried in the American Courts. The privateers commissioned by Genet in 1793 are stated to have taken as many as fifty prizes before the end of the summer (The Foreign Enlistment Act, by F. W. Gibbs, C.B., 1 The Bill and the Report are criticised sharply and minutely by Mr. Bemis, in a pamphlet which he has been kind enough to send to me (American Neutrality, its honourable Past and expedient Future). Note. 1863, p. 13). If we are to credit the representations made by the Chap. XIV. Spanish and Portuguese Ministers in 1817 and 1818, we must believe that the American coast swarmed with such vessels; that the measures adopted by the Government, anterior at least to the Act of 1818, proved wholly ineffectual; and that no redress could be obtained from the Courts. But these statements were probably over-coloured, as complaints of this kind are apt to be. We know, however, from the reported cases, as well as from the diplomatic correspondence, that most of these privateers were not only fitted out and armed in the United States, but were commanded and chiefly manned by Americans, and that they were in many cases under the ownership and control, not merely nominal but actual, of American citizens. The inadequacy of the Common Law to repress these disorderly proceedings led to the enactment of the Neutrality Laws of 1794, 1797, 1817, and 1818, upon which the legislation of Great Britain has been modelled, with some variations, to which reference has been made above. These laws, however, were but partially effectual. Even after the enactment of the Statute of 1818, which is the present Neutrality Law of the United States, privateers continued to be armed against Portugal, though in diminished numbers. Prizes made by vessels thus fitted out have been restored, through the agency of the American Courts, when such prizes have been brought within their jurisdiction. The only exception to this occurred early in 1793, when the question first arose, and the Government was embarrassed how to deal with it. On the other hand, the American Government has always steadily maintained that such enterprises fastened no liability on the United States, unless they could be shown to be due to the connivance or culpable neglect of the Government itself, and that in the absence of such proof neither the frequency of them, nor their long continuance, nor the amount of loss which they might inflict on foreign nations, could be admitted as grounds for compensation. The correspondence with Portugal will be found in the Appendix to the Official Correspondence respecting the Alabama, Longmans, 1867. There are two Treaties in which reference is made to claims of this kind. One is the Treaty of Friendship and Commerce between Great Britain and the United States of 19th November, 1794, and the other the Treaty of 22nd February, 1819, between the United States and Spain, by which Florida was ceded to the United States, and by the IXth Article of which the two Powers reciprocally renounced all claims on one another. That the Spanish claims for compensation were meant to be included within the general terms of this Article is shown by the previous negotiation. Mr. Adams appears to have supposed that such a mutual renunciation is to be regarded as equivalent to an acknowledgment and award of compensation on both sides (Mr. Adams to Earl Russell, 20th May, 1865, and 18th November, 1865). This is not so. It is an agreement by each party to abandon its own Chap. XIV. disputed claims, on condition that the other party will do likewise. It is so far from involving an admission of liability that the very object of it is to preclude the necessity for deciding the question one way or the other. Note. As to the VIIth Article of the Treaty of 1794, its operation is confined by express reference to cases where restitution shall not have been made agreeably to the tenor of Mr. Jefferson's letter to Mr. Hammond, 5th September, 1793" (a copy of which was annexed to the Treaty). The claims for compensation, therefore, which the Commissioners were authorized to entertain were not claims in respect of all prizes taken by privateers fitted out in American ports, but in respect only of prizes brought into American waters, and of which restitution could have been, but had not been made. There is a careful account of the circumstances which led to the passing of the American Neutrality Laws, with much information on the whole subject, in a memorandum by Mr. C. S. A, Abbott, of the Foreign Office, which forms part of the Appendix to the Report of the Neutrality Laws Commissioners, 1868, |