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Now, to pin any such inference as this from the Amistad de Rues case, and what Judge Story says or omits to say in it, upon the Alabama or Georgia question, is, to our thinking, a more disingenuous proceeding, if possible, on Sir Roundell's part, than to attempt to distinguish between a privateer and a public ship of war, in the way we have noticed. What the American court had before it was as if the Alabama — sup' posing her to have been illegally equipped in British territory - had voluntarily carried one of her prizes into Liverpool, and then the American owner of the prize having reclaimed her with damages, the question had arisen in the English court whether she should be restored simply, in specie, or with additional damages for detention and plunderage. Judge Story's decision (on behalf of the court) was, that it should simply be a restoration in specie ; and he then goes on to say, that it is not for the neutral court to go into the question of wrongs, as between the belligerents, committed out of the court's jurisdiction, nor the grounds of the capture, &c. ;the court's business simply was to decide the question of restitution or non-restitution.
This being the attitude of the case in judgment, who could for a moment reasonably suppose that the presiding judge had in mind the question how the British crown, in its executive capacity, ought to deal with an Alabama or a Georgia, when a vessel answering to the antecedents of either should be making application for permission to re-enter the port of Liverpool ? It was no more germane to the occasion for Judge Story to read a lecture about the international or executive duty of granting or withholding hospitality in the supposed case of application for asylum, than it would have been for the British iudge, holding cognizance of the Alabama prize-question, as just suggested, to have gone off into a general disquisition upon the expediency of the Crown's observing neutrality at all between the two belligerents. All the business of the neutral tribunal in such case was, as Judge Story says, “to fairly execute its own laws, and give no asylum to the property unjustly captured.” He speaks, to be sure, of “neutral nation” where we use“ neutral tribunal ;” but he is plainly treating
of judicial, and not of executive functions, and by nation means the courts of a nation.
So interpreted, it seems to us a monstrous stretch of construction for the Attorney-General to find, in this dictum of · Judge Story's in the Amistad de Rues case, any justification, either for admitting the Georgia into Liverpool, or for refusing to make indemnity for the piratical plunderings of the Alabama. Because in these six lines of Judge Story's — so runs the Attorney-General's reasoning — when he is treating of a wholly foreign matter, the learned judge is silent about stating the principles which should govern the cases of the Georgia and the Alabama, therefore the English are at liberty to do as they like in regard to both. As if, because the Lord's prayer omits to forbid stealing, therefore one may commit larceny at discretion; or, to make the case more parallel to that of the Alabama, as if, because the ten commandments only forbid coveting a man's ox, &c., and are silent about a nation's coveting another nation's commerce, Great Britain is fully justified in helping herself to American commerce through the medium of the Alabama.
But supposing that we accept Judge Story's dictum as a generalization, and as one of the ten commandments of neutral law, is Sir Roundell Palmer prepared to argue, after his experience in the conduct of the Alexandra trial, that England herself has furnished a very notable specimen of "fairly executing her own laws,” in that celebrated legal mistrial, or, as we might justly call it, legal farce ? And had he no misgivings, when he dwelt upon the duty of “affording no asylum to property unjustly captured,” that his Government might be held, by that formula, to a very different course of action from what it seems to have adopted, in regard to the Alabama's prizes, the Tuscaloosa and the Sea Bride?
In truth, in all the Attorney-General's copious citations of American authorities, the Amistad dictum, as well as others, in justification of the reception of the Georgia, he seems to forget his own admission, contained in an earlier stage of his argument, that the question was not one of juridical duty, but of political expediency. “I have not the least doubt” — he
emphatically asserts — “ that we have a right, if we thought [should think] fit, to exclude any particular ship or class of ships ; ” “ but such power is simply discretionary,” &c. Now, on his own view of the issue, as thus stated, for the AttorneyGeneral to foist in such a dictum of Judge Story's as we have just considered, uttered when the only question under adjudi-. cation was of restoring a prize specifically, or of restoring her with damages, is, to our thinking, either making too much of the learned judge's declaration, or losing sight of the speaker's own argument.
We will only add, that “ Historicus," to whom, perhaps, Sir Roundell Palmer is indebted for the first mention of the Amistad de Rues case, in his letter of November 7th, gives no such extended application of Judge Story's dictum as the Attorney-General elaborates, but simply classifies the decision in the case under the head of prize-procedure;- a question of practice rather than of principle; and that the case itself does not seem to have been thought worth citing at all, either by counsel or court, in the great case of The Nereyda, which we have just noticed, and where Judge Story spoke for himself, practically, about judicial interference between belligerents, in a manner flatly contradicting this supposed inclination of his authority.
Can Sir Roundell Palmer, then, in view of the American precedents, which we have cited in detail, or to which we have barely referred him, - in his capacity as a man or as a conscientious jurist, - adhere to his declaration," I say, then, that we have done all that authority requires us to do,” in not ordering the Georgia out of British ports ? Does he believe that such statesmanship as dictated the expulsion of the Little Democrat, the seizure of the Cassius, the indictment of Henfield, the punishment of Guinet, the dismantling of the Cornelia, the seizure of Le Vainqueur de Bastille, in Washington's Administration ;-or such jurisprudence as refused to be beguiled into “a fraudulent neutrality disgraceful to our government,” by such shifts as were attempted in the cases of the Gran Para, the Monte Allegre, the Nereyda, &c., at the period of the South American contests, - would ever
have refused to inquire into the antecedents of an illegallyequipped, British - registered Confederate rover, like the Georgia, where the only question was one of friendly and complimentary admission into a neutral port? Had we had
upon our hands “the scandal and reproach” of an Alabama . and a Florida outfit; bad we had an Alexandra, a Pampero,
and a Rappahannock case, all emanating from the lawlessness of this same meddlesome and aggressive belligerent Confederacy, to try our patience ;- should we have had much hesitation in putting the Georgia upon the list of Genet's privateers, or issuing a second Cassius circular, commanding her instant seizure ?
But American authority does not justify it, says the Attorney-General, and it is not worth while to inquire into what is right in the matter — “the question is only one of expediency." And then Sir Roundell Palmer goes off into a fictitious bill of grievances about Irish recruiting, and hopes that no irritation will be excited among the Americans by his attempting to make two wrongs equal to one right.
We suspect that the true key to this seeming blind perversity of thought and speech on behalf of the law-adviser of the ministry, is to be found in that phrase which the Attorney-General drops, when he says, “I must endeavor to show that the conduct which had been pursued by Her Majesty's Government has been that which the country had a right to expect.” That was the task put upon him ;— the official defence of the doings of his associates :— The same task which he undertook in his speech of March 27th of last year, when he was called upon to justify the escape of the Alabama ; and a speech framed upon precisely the same model as this of May 13th. There, in like manner, the Attorney-General wondered at the irritation of the Americans at what Earl Russell has since admitted was “a scandal and a reproach ;” and there, as here, we believe it was the troublesome shade of the Alabama — a ghost which will not down— that came athwart his mental vision to pervert his juridical conscience. The Alabama delinquency was a sin which he must by no manner of means confess; and so he
takes especial pains, here to say again that it was no sin at all.
We trust that Sir Roundell Palmer will not go through his political and official career (so far as he is called upon to advise upon American affairs), with this millstone of the Alabama reclamation about his neck. Let him abandon it for a bad job, and advising its settlement on some terms of compromise, or other, - admitting partial or accidental blame on the part of his Government — begin a new theory of American policy, worthy of his eminent abilities as a juridical statesman, and his high reputation for integrity and probity as a man. We have been led to expect as much from his manly and straightforward prosecution of the Alexandra case, and from his just — if not generous - tone toward American judges and jurists in many of his recent parliamentary and public speeches.