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quoted to seize a ship fitted out for a hostile service against alien friends, the fifth section of the Foreign Enlistment Act, to which the solicitor of the Customs did not refer, gives power to detain any vessel having on board persons enlisted or engaged within the kingdom for foreign military or naval service. Well, too, might so great an advocate feel that when the affidavits and the dates of their receipts were already in the hands of members, a case could only be made out for the government by labouring to show that Mr. Adams had not, on the 22nd, put them under the necessity of saying aye or no, whether they would act on Passmore's evidence. That the law officers should be consulted on the Monday, and that a telegram should be sent on the Tuesday to stop the ship, speaks well for their promptitude, though not better than all who know the Solicitor-General would expect.

It is even possible that the defence might have been more candid, had any personal blame been in question. But, however that may be, when the vice of advocacy intrudes itself into questions of state, and especially when the finishing touch of its rhetoric is one of disdainful pity for a great and sensitive nation, with which, in this matter at least, no fault is to be found, it becomes a duty to expose it.

But the Alabama sailed on the eighth morning after the request to detain her was made to the collector at Liverpool, the morning of the day on which a tardy effort was made to prevent the expedition. Now the right of a foreign state, to claim satisfaction for the hostile use of territory professedly friendly, depends in no way on the means of preventing such use which the government of that territory may possess. If the French had seized Antwerp, and were preparing an expedition from it against our shores, we should not refrain from hostilities in the Scheldt, because the kings of the Belgians and the Netherlands might demonstrate their perfect innocence of all complicity. If Canada were invaded by a party coming from the state of New York, our ambassador at Washington would treat with contempt any disquisition on the respective constitutional powers of the federal and state governments. The answer would be: “Of your constitution we know nothing but this, that it points out the authorities at Washington as the only ones to whom we are allowed diplomatic access; to us, therefore, those authorities are answerable for all that takes place within the territories which, towards us, they claim to represent.” And as little as foreign states are concerned with the relations between a federal government and the members of the federation, so little are they concerned with the relations between a government and its individual subjects. Whether the central power be strong or weak, whether the bond of union between the elements of a nation be firm or loose, are questions for itself alone. The united responsibility of the nation to foreigners, for the amicable employment of its territory, is among the first principles of international law. We do not trouble ourselves with thorny questions of Brazilian law, when our citizens, not voluntarily landing in Brazil, but thrown on her coast by the common perils of the sea, receive there a treatment reprobated by the common voice of humanity. If our statute book should contain any provisions going beyond the received law of nations, as if an act should be passed to prohibit any traffic within British territory which is affected by no international doctrine but the chimera of passive contraband, an ambassador who should request our government to enforce it would be bound to accept it such as it might be. But, putting the case of the Alabama on the ground which he most properly took up from the first, Mr. Adams was in no way concerned with any limitations or imperfections of the Foreign Enlistment Act. He might even ignore the question as to what Lord Russell calls “ the legal authority of the law officers.”* We, indeed, have made up our minds on that question, and consider that, with the evidence we have quoted in his hands, a Foreign Secretary might, on July 22, 1862, have ventured to decide for himself that a hostile expedition was on the point of departure

* Letter to Mr. Adams, of January 24, 1863.


from our shores, and that the Foreign Enlistment Act applied to the case. Nay, we will venture to assert that the law officers are not more the constitutional advisers of the Crown in the law of the land, than its responsible ministers are in the law of nations; and that however proper a reference to the former may be on the effect of the Foreign Enlistment Act in a difficult point, or on prize law as actually administered in our Admiralty Court, yet a Chatham or a Canning would have held it his business to instruct the law officers, in case of need, in the duties of neutrality. But we must repeat that our duties to the United States in this matter are quite independent of our statute law and constitutional usage.

Such was the opinion of Mr. Canning, in the debates on the Foreign Enlistment Bill in 1819, and on the motion for the repeal of that law in 1823. He never put it as a boon to Spain ; the law was wrung from him by a sense of duty, that the nation might fulfil obligations independently incumbent on her, while his keen sympathy was with the cause of the American colonies, to whose case it was first to apply. We have already seen how carefully the preamble appealed to the same argument, to justify a measure which would otherwise have been too alien to the principles of liberty to receive a moment's consideration from any government we have had since the revolution ; and Mr. Canning's own words were these :

“I do not now pretend to argue in favour of a system of neutrality; but it being declared that we intend to remain neutral, I call upon the House to abide by that declaration, so long as it shall remain unaltered. No matter what ulterior course we may be inclined to adopt; no matter whether, at some ulterior period, the honour and the interests of this country may force us into a war ; still, while we declare ourselves neutral, let us avoid passing the strict line of demarcation. When war comes, if come it must, let us enter into it with all the spirit and energy which become us as a great and independent nation. That period, however, I do not wish to anticipate, much less desire to hasten. If a war must come, let

it come in the shape of satisfaction to be demanded for injuries, of rights to be asserted, of interests to be protected, of treaties to be fulfilled. But, in God's name, let it not come in the paltry, pettyfogging way of fitting out ships in our harbours to cruise for gain.

At all events, let the country disdain to be sneaked into a war. Let us abide strictly by our neutrality as long as we mean to adhere to it, and, by so doing, we shall, in the event of any necessity of abandoning that system, be the better able to enter with effect upon any other course which the policy of this country may require." *

This was the language of an English statesman, when the struggles were scarcely closed which had made international topics as popular in England as those of free trade have since become. The spirit in which the legislation of that day will now be enforced is a test of the temper which a long peace, at least with all our ancient and most dreaded foes, has engendered. We are bound to say that there is at present no cause to be dissatisfied with that spirit, seeing the activity which, during the last few weeks, has been shown in detaining gunboats reasonably suspected of being built in contravention of the law. That a most unfortunate slip was made in the case of the Alabama, is widely admitted by well informed persons whose speech is not moulded to official accents. But if men in official positions will persevere in falsifying public doctrines in order to cover the consequences of that slip, they must not be allowed to do so without a protest, more especially in these days, in which the study of state papers and parliamentary discussions, as containing the elements of international law, has been so largely developed.

The old furniture of that science consisted mainly in compilations of treaties and the opinions of those who are called jurists, whence the curious result followed, that a writer, while a theorist to his contemporaries, became, almost by the mere fact that he had written, an authority to his successors. This procedure was justified by the plea of collecting testimonies to the consent of mankind, who, or at least the thinking

Canning's Speeches, vol. v., pp. 51–2; 8 Hansard, N.S., 1057.

portion of them, were supposed to be governed on the whole by reason. But the criticism of the nineteenth century has detected philosophical partisanship and national prejudice even among the most respected of the elder jurists, and its prolific authorship has farther diminished the authority of writers by increasing the numbers who claim to share it; and sinoe, in truth, it is rather the consent of nations, than of men as individuals, which must decide, there is a still deeper reason why the utterances of private writers, no matter what their wisdom or their fame, cannot be reckoned with those of the statesmen who are specially deputed to manage this portion of the affairs of their respective countries. Especially since the close of the last general war, the cheapness of printing, and modern habits of publicity, have furnished large material for the kind of research which thus begins to distinguish international jurisprudence. Numerous cases which are made the subject of diplomatic correspondence or of debates in public assemblies, but which neither give rise to treaties, nor would have become known in any authentic fashion to the writers of a century ago, are now recorded in the accumulating

a mass of published state papers. They illustrate international law in its daily working, as the laws of the land are illustrated by the experience of life, and supply that familiar knowledge of the matter with which its rules are concerned, without which he who should address himself to its more difficult questions would resemble a hermit brought from his desert into a strange city, to plead with booklearning a cause that turned on the manners of the place.

Nor need modern statesmen, as a class, fear the results of this publicity. They are not more warped by national interests and antipathies than the private writers of previous ages, who, moreover, were often put forward by their governments as unavowed and irresponsible champions. But as statesmen must now write and speak under a sense that they are furnishing quotations to generations of publicists yet unborn, so those who devote themselves to that line of research

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