BUT, OTHERS, IF CONCERNED, MUST BE CONSULTED. 607 without previous conference or consultation with other nations alike entitled to such comity and respect. England alone could not prescribe the four articles contained in the Paris Convention of 1856, for France; nor could both France and England together prescribe them for Russia; nor all three for the rest of Europe; nor all Europe for the United States and the rest of the world, without diplomatic preliminaries. Novel or modern practices may indeed, by lapse of time or general usage, become principles, and be established as such. But in changing the rights and duties of neutrals, no novelties can be established by mere arbitrary interpretations, which are but an index and mirror, to point out and reflect selfish views and aims. The legal idea of a neutrality had its origin with the Peace of Utrecht in 1713. During the Middle Ages, maritime capture was but promiscuous and indiscriminate warfare upon the ocean. Privateering of that period was substantially piracy; and only modified, and somewhat mitigated, gradually, down to 1780; when Russia, Prussia, Denmark, and Sweden leagued together and armed, to protect private property from maritime. capture. Historians designate this combination as the "First Armed Neutrality." The object was, and such would have been its effects, had it been successful, to mitigate the evils of war by transferring its burthens from the subject to the sovereign, or from the citizen to the state; and thus ultimately to pave the way to the entire extinction of maritime capture of private property, and to the final abolishment of privateering as well as piracy. Then followed the French and English wars from 608 AMELIORATION OF BELLIGERENT RIGHTS PROGRESSIVE. 1793 to 1815, and that of the United States from 1812 to 1815; during which time no salutary or effectual advance had been made, in a national point of view, either to extend neutral rights or to impose neutral duties. In 1823-4, however, by a public mitigation of captures, or favoring that policy, the United States, through Messrs. Adams, Rush, and Monroe, substantially and authoritatively condemned privateering. And a similar disposition to approve that policy has been subsequently manifested by her representative men in of fice. Marcy, Secretary of State in 1854, officially proposed to accede to the terms of the Paris Convention, if an additional clause, providing for the extinction of maritime capture, should be inserted therein by the high contracting parties. Overtures of a like description were made by Mr. Cass, in 1859. During this last year, as well as in 1854, some relaxation of the ancient rigorous rule was formally adopted by belligerents in their hostile operations. And, from present indications, it would not be presuming, to anticipate that the next advance would be the final acceptance of the additional article proposed in 1854 by the United States. Such is a brief outline of the progress of Christian civilization in this respect. But no credit can be accorded to those states, who have actually revived the antiquated practice of ocean piracy; or who, by an insincere declaration of neutrality, have practically encouraged its revival, either by not faithfully observing, or by technically evading, their sovereign's public declaration. In the Huntress, 6 Ch. Rob. 111 (Sept. 11, 1805), it was judicially laid down as English law, that great respect was due to the declaration of a government of a STATE DECLARATIONS ALWAYS TO BE RESPECTED. 609 state to doubt the truth of such declaration would be a breach of that comity and respect due to the declaration of an independent state. In the Herstelden, 1 ibid. 114 (July 17, 1799), the political identity of sovereign and subject had been previously established by Sir William Scott; and the subject or citizen was deemed, theoretically, to be bound up in the acts of their de facto or responsible govern ment. But to no foreign tribunal were the subjects of England amenable, while acting under the order of their sovereign. For any violation of neutral rights there is a twofold remedy: 1. By an appeal to the sovereign; 2. By a resort to arms. This is the law of England as established by its highest legal authority on questions of international law. In Maissonaire v. Keating, (2 Gall. 334), authority may be found for a similar doctrine in the United States. In the case of the Caroline (supra), the doctrine was even extended in its practical application; for McLeod was never brought to trial, though arrested and indicted in New York; the British Government having interposed and assumed the act, thereby avowing itself politically responsible. So, if the United States Government now intercede, and assume the payment of the individual losses incurred in its national war; then, that government becomes legally and equitably, as well as politically subrogated as the party to prosecute the entire claim of its suffering citizens, and its own also. This may simplify the proceeding, and render the matter less complex, so 610 PROCLAMATION MAY INDICATE ANIMUS; BUT WITHOUT that even Lord Russell might be able to perceive that there was, after all, both equity and law in favor of the American claims, according to the precedents and practice of England and the United States. The Queen's declaration was received with all due deference, and regarded with comity and respect. It was presumed to have been made in good faith, on her partIt was the imperative duty of her ministry to take special care that it was duly observed also with good faith by all her subjects and servants. Many of her subjects, however, openly disregarded her injunctions ; and some of her servants defiantly boasted of their intentional remissness, and even indisposition to enforce her injunctions. In August, the sovereign, perhaps jealous of her prerogative, or suspecting her servants' fidelity, thereupon enjoined on the executive government the strictest impartiality as neutrals. If faithful, that government then had the power to suppress and check all unneutral acts within the realm. If it omitted so to do, then such omission was either intentional or accidental. If accidental, then the minister was culpably negligent: and if intentional, then the minister was confessedly criminal. In either view, the omission to check or suppress any breach of neutrality within the Queen's dominions, was a ministerial and therefore criminal mistake; for any administrative blunder is proverbially criminal. Nevertheless, all crimes have two ingredients; intent and act, or animus and factum; both of which must concur to completely constitute the delictum, either in interpreting the municipal or international law. To consummate the delictum, as it may be termed, in interpreting international law, or crimen, in construing muni SOME OVERT ACT, NATIONAL OFFENSE INCOMPLETE. 611 cipal law, there must be a concurrence of both intention and overt act. The time of issuing the proclamation was but part of the national offense; and indicated only the malus animus of the minister who advised and prepared that incipient measure. By that alone, the delictum would have been incomplete. But this inchoate act conduced, when followed up by subsequent acts of omission or commission by the English Cabinet, to complete and consummate the great national crime, producing the national loss for which reparation and compensation is being sought by the United States against Great Britain. Omission to prevent departure of cruisers from English ports, when prevention was practicable, was equivalent to permission for them to escape on their mission of mischief and destruction against American commerce. One word from the English Foreign Secretary, seasonably uttered, would have checked this stupendous mischief; vindicated the good faith of his sovereign; saved to England her credit; and, to the United States security from loss. The utterance of that one official word was omitted: the factum and animus, concurring, together therefore constitute the wrong. And Lord John Russell, who had the power, if he were disposed to exercise it, to stop the Rebel cruisers from issuing from English ports, must hereafter be the pillow for his country's regrets, and the maledictions of neutral nations; while his official delinquencies must forever constitute the real legal ground for the Alabama and other similar claims. It is, therefore, hoped and expected that Gladstone, Clarendon, Argyll, Cardwell and others, as former colleagues of the late Foreign Secretary in the Palmerston |