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ART. VII.-CASE OF THE ALABAMA.

1. Correspondence respecting the Alabama. Presented to both Houses of Parliament, by command of her Majesty. 1863. 2. Speech of the Solicitor-General on the case of the Alabama, in the House of Commons, 27th March, 1863. "Times,"

28th March, 1863.

3. Copy of, or extracts from, the correspondence between the Commissioner of Customs and the Custom-house authorities, at Liverpool, relating to the building, fitting out, and sailing of the vessel, No. 290, since known as the Confederate cruiser Alabama. Ordered by the House of Commons to be printed, 24th March, 1863.

THE HE case of the Alabama is sufficiently remarkable, both in its facts and in the arguments to which it has given occasion, to call for a thorough review of both. It may be asserted that, of all recent cases, this is the most likely to take its place as a leading one in the law of nations.

On June 23, 1862, Mr. Adams, the ambassador of the United States in London, addressed to Earl Russell, her Majesty's Secretary of State for Foreign Affairs, a letter in which, after mentioning "the equipment from the port of Liverpool of the gunboat, the Oreto, with intent to make war upon the United States," he says, "I am now under the painful necessity of apprising your lordship that a new and still more powerful war steamer is nearly ready for departure from the port of Liverpool on the same errand. This vessel has been built and launched from the dockyard of persons one of whom is now sitting as a member of the House of Commons, and is fitting out for the especial and manifest purpose of carrying on hostilities by sea. I now ask permission to solicit such action as may tend either to stop the projected expedition, or to establish the fact that its purpose is not inimical to the people of the United States." We omit the details which Mr. Adams communicated on this

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occasion in support of his statement, since they were not so authenticated that Lord Russell could take upon them any other action than that which he adopted without loss of time, in referring the matter to the Commissioners of Customs for inquiry. But we direct attention to the statement itself, because it expresses clearly the ground taken up by Mr. Adams, and to which he firmly adhered throughout. This is the more necessary on account of the subsequent introduction into the argument, by other parties to it, of the very different topic of passive contraband.

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The name of passive contraband, not much known in England, and implying a doctrine little countenanced by English statesmen, has been given to the sale by neutrals, on their own soil, to the agents of a belligerent, of those articles which, if the neutrals transported them by sea to the belligerent, would be articles of contraband properly so called. The name of course implies that the traffic so designated is held to be a breach of the duties of neutrality; but, since it takes place on a neutral soil, a belligerent who should deem himself aggrieved by it would have no means of executing justice on the neutral with his own hand. If the goods are shipped, and he takes them at sea, the neutral u ffers no loss, because, from the nature of the case, the goods have already become the property of the enemy. War, then, against the neutral is the only possible remedy of the aggrieved belligerent; and much learning and philosophy have been expended on the question whether a war undertaken for such a cause would be just. Upon that question we shall not spend much time, knowing that for such a cause no recorded war has been undertaken, and believing it to be in the highest degree improbable that any ever should be. If we imagine a neutral country to be so great a mart for arms and munitions of war that either belligerent is essentially aided by purchasing them there, the chance is enormous that the other belligerent will also have resorted to the same source of supply; and although it is not true that a breach of

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neutrality is excused by offering similar advantages to both sides impartially, yet it is not very probable that the balance of advantage derived by either will, in the case we have supposed, be so great an inconvenience to the other that, by declaring war against the neutral, he will multiply his enemies in order to get rid of it. Far be it from us to license the indulgence of all unfriendly dispositions which in any particular instance may not be likely to draw down actual vengeance on the misdemeanants. But to assert international duties, the positive enforcement of which is utterly and in every case improbable, is a folly like that of enacting national laws with no sanction of any kind. As such enactments, being surely disobeyed, could only tend to bring all law into contempt, so the denunciation of passive contraband by theorists tends to make neutrals reckless of the duties really incumbent on them. It does even worse than this, for it encourages belligerents to cherish a grudge at being wronged by a traffic which in fact is inevitable, since scarcely even the most despotically governed country could endure so systematic an interference by the authorities with the dealings between individuals within its territory, as would be necessary in order to prohibit it with effect. These considerations must outweigh the importance of rounding off a theory about contraband, of which, since there is no commerce that does not, directly or indirectly, augment the resources of a nation for war, it will never, after all, be possible to give a consistent account, while any intercourse between neutrals and belligerents is permitted.

Mr. Adams, then, took up no ground so weak as that which we have been exposing: his representation was based on the duty of a neutral not to permit the use of his territory as a startingpoint, or base of operations, for a hostile expedition. This duty is clear: to furnish our government with the means of performing it was the main object with which the Foreign Enlistment Act was passed in 1819. But there is a point in its application at which it becomes a matter of

some nicety to distinguish the cases which fall under it from those which belong to the chimerical field of passive contraband. Suppose, for instance, that a single vessel sails from our ports, built and adapted for war alone, and in the actual service of a belligerent government, but wholly unarmed and unprovided with the munitions of war, and having no one on board who was enlisted within our territory into the service of her government: does this vessel constitute in herself a hostile expedition-equally inapt as she is for war and commerce, though, even in her unfurnished state, not absolutely incapable of either? Is there anything more in her case than the sale to a belligerent of a hostile weapon, for such is eminently a ship built for the purposes of war, but a sale effected in a neutral port, and therefore exposing the neutral to no blame, though the purchaser carry off his acquisition and use it to the serious detriment of his adversary? We should have no difficulty in accepting the former alternative, considering the public service and hostile errand on which the vessel quits our shores. And we should claim a strong support for that opinion in the seventh section of the Foreign Enlistment Act, which makes it a misdemeanour to "fit out or arm" a vessel, for employment in foreign service," as a transport or storeship, or with intent to cruise or commit hostilities," against friendly powers; and proceeds to declare the forfeiture of such vessel, and to empower the officers of customs and excise to seize her. Hence it clearly appears that the gist of the offence against the act lies in the public service against alien friends, independently of any armament, and even in spite of proof that the service intended, though hostile, is not that of an armed ship of war. Nor could it be objected that the Foreign Enlistment Act does not declare the law of nations; for its preamble recites that the offences against which it is directed "may be prejudicial to, and tend to endanger, the peace and welfare of this kingdom," which can only be by their giving just ground of complaint to foreign powers."

But the case we have supposed falls short of that of the Alabama, by wanting the material ingredient of there being men on board enlisted within our territory for the service of the belligerent government; yet we are sorry to say that the argument of the Alabama's case, in the British press and in parliament, has been marked by a laborious attempt to assimilate it to the cases of so-called passive contraband.

The next date of importance in the narrative is July 21, when the United States' consul at Liverpool presented six affidavits to the collector of customs at that port, "requesting me," says the collector, "to seize the gunboat" to which Mr. Adams had referred in his letter of June 23, then known as No. 290, but since as the Alabama. Copies of the same affidavits were received by Lord Russell from Mr. Adams on the following day (July 22), with a report of the consul's application to the collector" to act under the powers conferred by the Enlistment Act." Of this circumstance, and those which followed, the Solicitor-General gave the following account to the House of Commons:

"It was on the 22nd that he (Mr. Adams) transmitted his first series of depositions; he did not complete his evidence till the 24th, and the letter in which he sent them was not received till the 26th, so that he did not place the evidence on which he relied in the hands of the government till the 26th of July. In the meantime he obtained the opinion of the honourable and learned member for Plymouth, who, on the 16th, stated his belief that there was a case of suspicion, but not enough to justify the detention of the vessel. When the evidence was completed, it was laid before the honourable and learned gentleman, who, on the 23rd, thought there was a case sufficient to warrant her detention. Upon that evidence the legal advisers of the government came to the same conclusion as the honourable and learned member. But I wish the House to understand that in those depositions there was a great mass of hearsay evidence, which, taken by itself, could not form the basis of any action. Of the six depositions transmitted on the 22nd of July, only one was good for anything at all, namely the evidence

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