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stronger ones within its reach, when the old ones are proved by the injured party to have been wholly inadequate to the emergency.
With the light shed by this explanation, I now propose very briefly to set forth those points in the respective action of the United States towards Portugal, and of Great Britain towards the Cnited States, wherein they appear to me to differ so essentially and radically as to make it impossible to bring them within a reasonable parallel.
1. The United States did not recognize the insurgents in South America as a belligerent, until the fact of the presence of their armed vessels was made patent to them on the ocean. But Great Britain did erect the insurgents in the United States into a belligerent before they showed a vessel on the sea, before they organized an army on land, and before they had done a thing but declare an intention to do what they never subsequently executed.
2. Upon the first notice given to the government of the United States that the neutrality of their ports was violated by South American insurgents, making outfits in connection with their own citizens, they immediately put in force the provisions of the existing law. Prosecutions were instituted against the foreign agents as well as citizens, and decrees of restitution were obtained from the judicial tribunals in the cases of captured property. In other words, nothing was left undone that energy could do to bring to bear existing preventive legislation against these offenders.
One particular instance of the desire to perform their obligations is worthy to be presented to your notice more particularly, inasmuch as it incidentally explains as well the public sense of the extent of the obligation of a neutral power in similar cases, as of the responsibility entailed from an insufficient performance of it. It appears that some of the insurgent emissaries, in conjunction with desperate adventurers of the United States, went to the extent of seizing and occupying two different spots on the American coast, neither of them within the recognized jurisdiction of the Union, nor yet within that of any responsible power. Here they made bases from which to conduct their hostile operations against the commerce of Spain aud Portugal, very much in the manner but not nearly with so much success as Liverpool in this kingdom, and the port of Nassau, were made bases of operations against the commerce of the United States by insurgent emissaries during the late war. These proceedings soon attracted the attention of the President, who dwelt upon the necessity of adopting prompt measures of prevention in his annual recommendations to Congress in the year 1817. The matter was referred in course to the consideration of a committee of the House of Repre. sentatives, which made a report recommending that these establishments should be at once suppressed, by force if necessary.
Among the reasons given for resorting to this summary proceeding are the following, to which I ask a moment of your lordship's attention:
"The immediate tendency of suffering such armaments in defiance of our laws would have been to embroil the United States with all the nations whose commerce with our country Fas suffering under these depredations, and, if not checked by all the means in the poroer of the goterament, would have authorized claims from the subjects of foreign governments for indemnities at the expense of this nation, for captures by our people in vessels fitted out in our ports, and, as could not fail of being alleged, countenanced by the very neglect of the necessary means of suppressing them."
It would be difficult to express in more forcible language the principle established by the law of nations than is done in these sentences. The action recommended was, moreover, performed so promptly, that soon after the President, in a special message, was enabled to announce that the piratical establishments at Amelia island and at Galveston had been suppressed. The paramount necessity had been thought to justify the exercise of power, even Ofer territory not within the national jurisdiction.
But when I turn my attention to the proceedings of her Majesty's government as they are noted in the dreary list of my representations and complaints contained in the printed memGrandum furnished to me, with his lordship’s note of the 2d instant; when I perceive real justice to have been so seldom done and so often defeated, however good the intentions may have been; when I note the omissions of all reference to the endless remonstrances made by myself against the establishment of a naval bureau in Liverpool, conducted by insurgents, mentioned and particularized by name, because not a single step was ever taken either to prevent their action or to punish them, I cannot but be sensible of a difference in the preventive action of the two countries in similar circumstances, which would ever forbid me from classing them together in one connection for a single moment.
3. It is not, however, denied that in the one case, as in the other, several cases of illegal ourtits took place which the existing laws proved inefficient to prevent or punish.
In that of the United States, the representation of the aggrieved power made at once a direct appeal to the government, stating the cause of the difficulty and soliciting a new movebent, for the purpose of obtaining from the requisite source stronger powers of prevention ; to which that government immediately responded by recognizing the justice of the complaint and at once adopting the suggestion.
If ber Majesty's government bas at any time in this struggle followed that example, it has escaped my observation. I should be glad to be corrected when I affirm that it has done the directly opposite tbing,
Here I may be permitted for a moment to refer to a passage of his lordship’s note, which
appears to have been called out by a hypothetical description I ventured to give of the consequences that mightensue to the world, if neutral nations constituted themselves the sole judges of the degree in which they had done their duty under a code of their own making.
To this phrase his lordship is pleased to retort as follows:
“ Yet, as far as I can judge, your Secretaries of State always maintained that the United States, as a neutral power, were the sole judges of the degree in which it had done its duty under a code of its own making.'
To which I would beg permission to observe that his lordship can scarcely presume me to maintain that in the literal sense my country does not make its own code of laws.
What I did mean to do was to distinguish by this term a country which was ready to accept suggestions from foreign powers for an improvement of a code designed to give the protection they are entitled to by treaties, as well as international law, from one which determined to abide by its own system, without regard to external representations. By keeping in mind this distinction in connection with the facts already stated of the action of my government, it will then appear that his lordship is in error when he declares that our Secretaries of State (meaning those of the United States) made themselves the sole judges of the degree in which the country bad done its duty under a code of their own making.” So far was this from being true that they admitted that the country had not done its full duty, and they proceeded to amend the code, at the suggestion of a foreign power that claimed to be aggrieved “Hence it is that the code was not of their own making.'
If there be a shadow of doubt left on this point, I will proceed to disperse it by the following extracts:
On the 20th of December, 1816, Mr. Correa de Serra addresses these words to the Secretary of State:
“I apply, therefore, to this government in the present instance, not to raise altercations or to require satisfaction which the Constitution of the United States has not, perhaps, enabled them to give, but because I know that the supreme executive of this nation, all-powerful when supported by law, is constitutionally inactive when unsupported by it. What I solicit of him is the proposition to Congress of such provisions by law as will prevent such attempts for the future.'
To which application Mr. Monroe, then Secretary of State, replies as follows on the 27th of December, 1816:
“I have communicated your letter to the President, and have now the honor to transmit to you a copy of a message which he has addressed to Congress on the subject, with a view to obtain such an extension by law of the executive power as will be necessary to preserve the strict neutrality of the United States in the existing war between Spain and the Spanish colonies, and effectually to guard against the danger in regard to the vessels of your sovereign, which you have anticipated.” Ard on the 13th of March Mr. Rush, then Acting Secretary, writes to him as follows:
"The act of Congress, pássed on the 3d of this month, to preserve more effectually the Deutral relations the United States, being upon the subject brought under consideration in your letter to this department of the 20th of December last, I have the honor, by direction of the President, to transmit for your information the enclosed copy of it.
“The President feels sure ihat your sovereign will perceive in the spirit and scope of its provisions a distinguished proof of the desire which animates this nation to maintain with his dominions and subjects the most harmorious relations.
But when I turn to the other side of the picture, and view the action which her Majesty's government has thought it proper to take in answer to similar representations made by me on behalf of my government; when I observe that the appeals to the existing law have been almost uniformly of a kind to prove its utter inefficacy; and when, upon my making representations as to ihe expediency of further legislation to enlarge the powers of the government to an extent adeqnate to the emergency, I find that proposal positively declined, it seems to me that here again the parallel souglit to be made utterly fails.
I would respectfully ask whether, in the correspondence just laid before your lordship, there be any language similar to that which his lordship, in one of the notes which he did me the honor to address to me, used to me:
“Surely we are not bound to go on making new laws ad infinitum, because new occasions arise."
Here I would respectfully submit that if his lordship be right in his assertion, that new laws ad infinitum are not required by new occasions, it is difficult to explain the reason for the existence of so many legislative bodies and such multiplied statute books. Surely the government which I represent would not have so repeatedly acceded to the solicitations of her Majesty's government, as it has done, to “make new laws for new occasions,” under any other plea.
But I am in candor bound to observe that even in this doctrine there has been during the late struggle a singular variation in the practice of her Majesty's government which I ask your lordship's permission to point out. Ai a very early date the exposed nature of the frontier bordering upon Canada became so much a subject of anxiety to my government that I was instructed to bring the matter to the attention of his lordship, with a view to the establishment of more effective preventive measures on the Canadian side than were thought to be then
within reach. To that end, in the early part of December, in 1863, in a conversation which I had the honor to hold with his lordship, after explaining the reasons of my government for the danger apprehended in this quarter, I proceeded to propose the adoption of a forin of law, on the part of Canada, resembling that which had been enacted on our part in 1838, to meet a simi'ar emergency then happening there. It is true that for a considerable period I had no terson to presume that this proposal had been more favorably received than any other of the same kind I had been called to make ; but when, one year later, information was received of the extreme peril into which Canada had been thrown by the violent enterprise executed by some of the insurgents established in that province upon the peaceful town of St. Albans, I then had the satisfaction of learning from his lordship that the suggestion had been adopted so far as that her Majesty's government had recommended to the authorities of Canada to procure the enactment of the suggested law. In this case, then, it is clear that the imminent danger of a rupture between the two countries had brought on an acknowledgment of the Decessity of going on to “make a new law to meet a new occasion." But surely her Majesty's government would not be willing to give even a color to an inference that nothing but a necessity to avoid a war would be a sufficient motive to induce it to recognize an obligation to make a new law. If the reasons for the suggestion were equally valid in all cases, I fail to perceive upon what principle the nature of the answer should be made to depend upon the merely accidental pressure of the circumstances attending the moment when it was made.
Without pressing this topic further, I would then beg to observe that in any event, however the facts attending the Portuguese claim as now explained may be viewed, one thing is indisputable, and that is that there is a wide divergency in the nature of the two cases sought to be brought together.
It is plain that neither in the commencement nor in the proceedings under the existing laws, nor yet in the mode of treating the suggestion of new legislation, was there any resemblance whatever in the tone or the action of the respective governments. Hence I am constrained to arrive at the conclusion that, whatever may be thought of the conduct of the government of the United States in its relations towards Portugal, there is no parallel to it in that of Great Britain towards the United States, by which the latter may be tested by way of justification. Considered as a precedent, for which alone the case seems to have been quoted by his lordship, I must insist that the evidence entirely fails to establish its authority.
On a general review of these marked differences, considered in the light of the rule of international law laid down at the outset of this letter, it may now be said that one governmeat appears to have done all that it was reasonably asked to do, and that it could do to preserve its neutrality, whilst the other certainly could have done more, but deliberately refused, and accepted the responsibility for that refusal.
Hence, I must respectfully submit that, before his lordship concludes to adopt the language used by the United States in answer to Portugal, he should be prepared with proof to sbow that he has likewise adopted the action on which they based it.
I should here gladly close my portion of this long controversy, if it were not that his lordship has, in his note to which I now have the honor to reply, thought fit to open a new matter which I cannot decline to notice. It has happened in the course of this extended discussion that he has, on more than one occasion, deigned to give me the fruits of his examination of various points of history in my own country. In the first instance bis lordship was pleased to apprise me that Spain had never received any compensation for the claims of her citizens against the United States. By the aid of a little light I think I succeeded in dispersing that illusion, so that it has not been made to appear again. Again, his lordship was pleased to inform me that the enlistment acts of the respective countries were, in their main provisions, similar and co-extensive. Here I respectfully pointed out to his attention the fact that certain important provisions were contained in the one that were not to be found in the other-provisions which we at least regarded as having proved, in practice, the most eficient in the whole law.
His lordship, in the note to which I am now replying, has been kind enough to take notice of this difference, and goes on to describe the nature of the provisions he had overlooked. But it appears to be only for the purpose of trying to convince me that, in my statement of their stiperior efficacy, I am utterly wrong. Hence, the argument appears to follow somewhat after this fashion :
His lordship having proved to his satisfaction that those provisions of the law which her Majesty's government did not adopt were as susceptible of evasion as all the others which it did adopt, it must necessarily follow that her Majesty's governinent were fully justified in declining a proposal to make any amendment whatever of its existing statute.
To which I would respectfully venture to reply, that even had the result proved to be as supposed, yet the position of her Majesty's government, if it had consented to make the experiment, would have been, at least to my eye, infinitely stronger than it is now. It might then have replied to all complaints, as the United States replied to Portugal—that everything in its power bad been done, even to the extent desired by the complaining party. Whereas, by a refusal to recagrize the justice of the request, it appears to have placed itself in the attitude of a party deliberately assuming the responsibility of declining to use those powers legitimately within its reach, wherewith to fulfil its most imperative obligations.
But I am constrained to go further, and affirm that I can by no means subscribe to the
opinion which his lordship is pleased to express as to the ineffective nature of the provisions of the law to which he has referred. It is not without extreme surprise that I find him use the precise language respecting it, which I beg permission here to quote:
"Now I contend, first, that for ten years these provisions proved utterly inefficacious to prevent the fitting out of privateers at Baltimore, as shown by the fact that the complaints of the Portuguese ministers of captures and plundering by American privateers were more frequent and extended to a larger amount of property after 1818, than they had done from 1816 to 1818."
It is difficult for me to describe the high degree of astonishment with which I have read these lines.
In opposition to this grave affirmation of fact, which, I must beg leave to observe, no attempt is made to sustain by any distinct evidence, I am driven to take the liberty to affirm, on my own side, first, that there is not a tittle of specification to show that the fitting out of privateers continued, in any appreciable sense, for ten years after the year 1818: and secondly, that no pretence of that kind is to be found in any of the official remonstrances of the representatives of Portugal, to which I have had access, with one single exception, which I propose presently to notice.
In relation to the point of the efficiency of the law, I shall venture, in opposition to his lordship's reasoning as to what it might be, to confront that which, in the mind of Mr. Correa de Serra, the person through whom all the transactions passed during much the largest part of the period in question, and who had every opportunity to be familiar with them, it really was.
On the 4th of February. 1819, about two years after it had gone into operation, he deliberately used the following language :
“This law, so honorable to the spirit of justice of the government that enacted it, has also been found in practice the most useful of the laws existing on this subject. Unhappily, the continuance and aggravations of the evil it was intended to remedy seem to render it necessary that this law may still continue in force for some time.
"I apply, therefore, to this government in order to obtain the continuance of this law, so necessary to the peaceful trade of the subjects of my sovereign, and so honorable to the character of the Lnited States, perfectly confident that my request is according to the just and friendly intentions of the chief magistrate and legislators of the Union, and conducive to the consolidation of good harmony between my sovereign and the United States.'
On the 4th of June, 1820, he again writes to the etary of State as follows, thanking him for still more effective legislation :
“Permit me, sir, to profit of this occasion to offer my thanks to this government for the law that prohibits the entrance of privateers in the most important ports of the Union, and for the other that declares piracy the landing and committing outrages ashore in foreign lands. I acknowledge the salutary influence of the Executive in obtaining these ameliorations."
Notwithstanding the very great deference with which it is my desire, as well as my habit, to bow to the judgment of his lordship, if I find myself so unfortunate as to be constrained to express an humble opinion in this case of conflicting authority, I cannot, in candor, disguise my conviction that the correct view is most likely to be that of Mr. Correa de Serra.
But, however efficient this law may have been proved to be by Mr. Correa de Serra, at so late a date as the 4th June, 1820, it is now gravely affirmed that it so wholly lost its efficacy for the ten years following, that more property was captured after 1818 than before, and the complaints of the Portuguese ministers for these captures and plunderings were more frequent than ever.
The natural corollary, should this statement be sustained, would be that, assuming the es. ertions of the government to have continued the same, instead of improving the efficacy of the old law, the additions of the new provisions must bave only made it more worthless than it was before-upon which logic might doubtless be based a very good justification to her Majesty's government for declining to try further legislation altogether.
But, unfortunately, the whole argument falls to the ground when its base disappears. It is not denied that some outfits escaped from Baltimore after the year 1818, but it is denied that the complaints made for captures after that time bore any fair proportion to those made before. It never has been pretended that any law could be made so perfect, or any vigilance could be so complete, as to put an end to the efforts of profligate and desperate men. The grave error into which his lordship has fallen appears to have originated in an er parte letter written by a minister from Portugal at Washington, thirty years after the date of the events, in which letter and the caption of a list embracing the names of vessels captured, he includes them vaguely within two distant dates, of 1816 and 1828. It is, however, remarkable, that in the letter itself containing his own recapitulation of the facts, no date of a capture is given later than 1820. By turning to the original representations made by his predecessors, the same fact distinctly appears.
I have carefully examined these representations to trace the dates of the claims embraced in that list, and find much the greater proportion included within the period of residence of Mr. Correa de Serra, ending in that year. So also of the gross amount of value assigned. in 1850 as an indemnity for all the damage done during the entire period, which is less than three hundred thousand pounds; I find a great proportion embraced in an early and more trustworthy representation made by the same person.
Such being the facts, I submit whether with such small support as can be given by this wholly ez parte and vague averment, his lordship has not a little crossed the verge of international courtesy, by venturing, without any personal experience whatever of American legislation, and in the face of the statement of M. Correa de Serra, which he must have read, to hazard an assertion, still more give rise to an impression like that necessarily produced by the languge already quoted. Standing, as I do, the defender of the law of my country, it is with regret that I am compelled to protest against it, as wholly unsubstantiated by any facts adduced, and in every essential particular incorrect.
Neither were those the only cases in which the efficacy of these provisions of law has been fully testified. It is not a very long time since I had the honor of calling the attention of ber Majesty's government to an instance of the remarkable promptness with which action was bad under them upon a request made by the representative of her Majesty's government at Washington. When Mr. Crampton, on the 11th of October, 1855, directed the attention of my government to the character of a vessel in New York, then believed by him to be fitting out as a privateer, it was by virtue of the authority vested in it by one of the sections of this law that she was seized on the 19th of the same month, and taken possession of by the oficers of the law in such a manner as to prevent all possibility of escape. It required but four days to prosecute the investigation before her Majesty's representative was led to declare his satisfaction with the result to which it had reached, and desired the process to be stopped. When I compare the celerity of this effective proceeding with the feeble nature of the process that ended in the escape of the Alabama, in defiance of the British authoritywhilst I give due credit to her Majesty's government for good intentions, it seems difficult to assent to the view which his lordship has been pleased to take of the slight difference in the inefficacy of the legislation of the respective nations. In any event, I cannot but think their future harmony would have been much more certainly secured by a consent to try the experiment in season, than by an endeavor, after great injury has been done, to prove that it might not under circumstances have been averted.
But it would appear superfluous to pursue this investigation further, in view of the fact thai, whether these provisions of the American law were or were not effective, it never was any part of my instructions to urge their adoption upon her Majesty's government. I was instructed only to suggest the expediency of having recourse to such additional measures as it might think proper to choose, to the end of making the laws of Great Britain more effective. And it was in that form only that her Majesty's government decided to decline the proposal. The decision was not against the adoption of the law of the United States; it was against doing anything at all.
Neither in presenting the argument, which I have been called to do in the course of my dnty bere, can I for a moment permit an implication that my government has either “made a demand which aims at the diminution of British freedom, or which assumes, without warrant from any previously recognized authority or practice, the existence of an extent of obkgation on the part of neutrals towards belligerents, going beyond any which the government of a free country could have power, though acting with entire good faith, punctually to fulfil."
I feel very sure that my country is quite as jealous of the preservation of the true principles of freedom as Great Britain is, or ever has been; and further, I fully believe that neither government would consent to give the term that latitude which would encourage the power of doing wrong with perfect impunity.
The suggestion which his lordship has been pleased to make towards the close of his note of improvements in the statutes of both nations, to the end that greater security may be given to the respective nations against those who endeavor to evade its laws-though it appears to me to be in substance little more than it has been the object of my government from the ontset of the war to obtain-is yet one which I cannot but receive with great respect, aud which I shall transmit to my government with pleasure. If the reasons for it are sound now, I am at a loss to perceive why they did not avail during a period when my country could have felt the benefit of them. I trust I need not repeat how much pain it has given me beretofore to witness the evil consequences that ensue from the alienation of sentiment that has grown out of this struggle between people of the same race, and how cheerfully I wel. come every appearance of a desire to bring them back to harmony. Yet, with regard to the proposition immediately before me, I cannot forbear to observe that it is predicated upon an assumption that the legislation of the two countries is now equally inefficacious, which I cannot entertain for a moment. On the contrary, the necessity for some action future seems to me to be imperative, because that legislation, as it now stands, is not coextensive.
For it is hardly possible for me to imagine that the people of the United States, after the experience they have had of injuries from the imperfection of British legislation, and a refusal to amend it, would be ready cheerfully to respond to another appeal like that made in 1655, by her Majesty's representative, to the more stringent and effective protection extended by their own. The great preservative of harmony between nations is the
full recognition of reciprocity in their obligations. So long as the heavy list of depredations upon American Commerce, consequent upon the issue of a succession of hostile cruisers, built, fitted out, ar med, manned, and navigated from British ports, with perfect impunity, continues to weigh