592 PROHIBITIONS, LIKE LICENSES, LEGALIZED BY THE

be so legalized likewise? Wherein is a proclamation less cogent than an order of the Privy Council or act of Parliament? Each require the royal signature, and without that, neither would be of any more avail than so much parchment.

In Ex parte Chavasse (supra), Lord Westbury said that a proclamation is but evidence of the municipal and international law. That position is not to that extent tenable, except for England. Prohibitions included in a proclamation may exceed in number, and differ in kind and degree from those prescribed by the municipal, or found in international law. If that be so, then novel or additional restrictions or relaxations may be legalized by a neutral's proclamation. If it be otherwise, then the proclamation becomes nugatory. since licenses may be legalized by proclamation, it is difficult to perceive, why that mode of administering government may not be equally extended and effective, in interdicting breach of blockade, or enjoining other special neutral duties.

But

In the Helene (supra), Dr. Lushington held also, that a contract to violate an established blockade was not a municipal offense, nor per se illegal. Again, the reply is, but such violation of blockade would contravene the proclamation; and if the proclamation be not nugatory, why should not the particular injunction against violation of blockade be enforced? A contract to violate a blockade is practically an attempt to violate, and either, it would seem, is legally equivalent to a violation of blockade. Such interdiction of blockade, therefore, may be as much legalized by proclamation as the granting of a license may be by the like measure, so far as the act may affect personally the subjects of the neutral sovereign.

CONCURRENT ACT OF THE QUEEN AND PRIVY COUNCIL. 593

It practically comes to this, that the act of the Privy Council, while sitting in court at Windsor Castle, Whitehall, or Buckingham Palace, the Queen present and presiding, should have no more force and effect upon Englishmen than the act of the Queen herself is entitled to, when sitting in the same court and place, with the advice and consent of the same Privy Council, she voluntarily issues her proclamation and affixes thereto her royal signature. The one is or ought to be as potential, in regulating the conduct of the subjects and servants of the realm, as the other. Both are authorized by the sovereign's presence, authenticated by her signature, and legalized by the joint act and concurrence of the sovereign and Privy Council. These acts, aside from and in addition to the municipal or international law regulations, may impose other restrictions or prescribe relaxations, as an exercise of the proper functions of sovereignty; and as such, they are but an emanation of the prerogative power of the crown in reference to all its subjects within the realm. And whatever form may be assumed, or effect presumed to be given to either act, both are theoretically, and should be practically, equivalent acts, and alike obligatory on all subjects and servants of the crown.

Their non-observance, within the realm, would be a political and moral delinquency, justly incurring the sovereign's high displeasure, and legally contravening and violating, in respect to neutrals, not only their special rights, as particularized by such act of sovereignty, but also their general rights, as provided for in the local municipal law, or prescribed in the general international law; for which neutrals necessarily have a claim for reparation.

594 NEUTRALS REPOSED TRUST IN QUEEN'S GOOD FAITH.

If neutrals reposed confidence in any such acts, publicly decreed, or formally proclaimed, they were justified in so doing; and the neutral world had a right to presume that every such measure was not only adopted in good faith, but would be observed with good faith, especially toward both belligerents. If it were not so observed, then the imputation of blame, for such nonobservance or breach of good faith, would necessarily fall upon the responsible advisers and servants of the crown, by whose official delinquencies, the state itself becomes, in its political capacity, liable to make reparation; and as this liability cannot be transferred to ministers personally for official acts, committed or omitted, it follows that the state's liability may be coextensive with the minister's responsibility.

From Washington's Proclamation of Neutrality in 1793, and one American case in 3 Dall. 133, Talbot v. Janson, a tolerably apt definition may be collected and framed. And reasoning from effect to cause, it is substantially this: that whenever restoration is imperative, then the capture must have been unlawful; but if, furthermore, such capture were effected with the aid and through means afforded by a neutral power, and the executive government of such neutral power could have prevented the capture, by withholding coöperation, or by the exercise of due diligence, but did not prevent it, then a state, so administered, or rather so maladministered, ought, in justice, to make compensation; provided that, at the time, specific restoration may have become impracticable. The proposition, if sound, is founded upon the legal ground, that a wrong inflicted, through the remissness or connivance of a neutral government, should be redressed or repaired by

AMERICA'S CLAIMS AND ENGLAND'S LIABILITY ASSERTED. 595

that state, whose responsible government has been thus delinquent. And if this position be conceded, then all needed conclusions follow, to enable the jurist, publicist, or statesman, to justify the alleged claim of the United States, and also to establish affirmatively, England's liability for the same.

Time and reflection only will be wanting to demonstrate the correctness of this conclusion to sagacious, candid, and prudent Englishmen. The settlement may be longer delayed from the embarrassment and consequent exasperation of a portion of the governing classes of Great Britain, whose example and influence may possibly deter, for a while, others from acceding to the general American claim or its principle, however presented.

It is manifest that no particular exaggerated statement of the claim, made by individual public men or private citizens, can be regarded as the indispensable basis of any settlement, or criterion of any amount of claim to be agreed upon. The United States seeks justice only, not humiliation. Indeed, there cannot be humiliation in acting justly and doing right; it is rather elevation. All wrongs may be repaired without any compromise of dignity or honor. An indisposition to make reparation can only be transient; it cannot, in the nature of things, continue permanent. Passion, resentment, and all political or party policies must ultimately yield to the dictates of prudence, the demands of self-interest, and to the inherent and abiding love of peace and amity with nations.

If one set of men decline, another will incline to act with justice. The wrongs of one minister may be repaired by another. A self-willed premier may be sup

596

CLARENDON TREATY NOT RATIFIED: NO TREATY

planted by a more sagacious successor. And hence the utility and expediency of that periodical change in constitutional government; made so desirable by an insolence generated by its long possession; and sometimes so salutary to the state and people; as it may conduce to correct an unhealthy or artificial state of public sentiment and opinion, often created and kept alive by selfish public servants, for private purposes or unworthy ends. Such salutary mutations in office shield the state itself from detriment, and foreign states from injustice.

When, therefore, a great national wrong is occasioned by national or official delinquency, it is no more than just that the national resources or possessions should remain pledged and mortgaged for the ultimate reparation, redress, restoration, or compensation for that wrong. Present security is a guaranty to the sufferer of future indemnity; and whether the recent treaty be ratified or rejected, American merchants, who were likely to be the greatest losers, exhibited a specimen of sagacity and sound sense, in promptly protesting against such a patchwork adjustment, as that of the Clarendon Convention, unwarily assented to by the American minister, R. Johnson, and which was ill-designed to settle differences and alike unsatisfactory to all.1

1 The news of the rejection of the Johnson Treaty by the United States Senate, created in England some embarrassment, but no surprise. Some of the servants of the crown were slightly sensitive and nervous, but, on the whole, accepted the situation sensibly; especially those who had been members of the Palmerston Cabinet. These former colleagues of Lord Russell, in looking to the future for wise counsels, may well feel persuaded that the ultimate settlement can be only a question of time.

Mr. Motley, the American minister, was doubtless selected to represent the United States upon public grounds entirely. If so, the sequel may fully prove the wisdom of the selection. At the court of St. James, the more our