It will be observed that the justice of restitution, or compensation, for captures made on the high-seas and brought into our ports, is only admitted by President Washington upon one condition, which is expressed in these words: "If done by vessels which had been armed within them." The terms of the contract, which the Government of the United States endeavored to make at the ship-yards of England, were for the delivery of the ship or ships of war, "to be finished complete, with guns and everything appertaining." The contract was not taken, as too little time was allowed for its execution. But, if entered into and executed, it would have been a direct violation of international law.
In the instance of our cruisers built in the ports of England, it will be observed that they went to sea without arms or warlike stores, and, at other ports than those of Great Britain, they were converted into ships of war and put into commission by the authority of the Confederate Government. The Government of the United States asserted that they were built in the ports of Great Britain, and thereby her duty of neutrality was violated, and the Government made responsible for the damages sustained by private citizens of the United States in consequence of her captures on the seas. To this declaration of Mr. Adams, Earl Russell (he had been made an earl) replied on September 14, 1863, thus:
"When the United States Government assumes to hold the Government of Great Britain responsible for the captures made by vessels which may be fitted out as vessels of war in a foreign port, because such vessels were originally built in a British port, I have to observe that such pretensions are entirely at variance with the principles of international law, and with the decisions of American courts of the highest authority; and I have only, in conclusion, to express my hope that you may not be instructed again to put forward claims which her Majesty's Government can not admit to be founded on any grounds of law or justice."
On October 6, 1863, Mr. Seward, the Secretary of State of the United States Government, replied to this declaration of Earl Russell, saying:
"The United States do insist, and must continue to insist, that the British Government is justly responsible for the damages which the peaceful, law-abiding citizens of the United States [!] sustain by the depredations of the Alabama."
Earl Russell answered on October 26, 1863, thus:
"I must request you to believe that the principle contended for by her Majesty's Government is not that of commissioning, equipping, and manning vessels in our ports to cruise against either of the belligerent parties—a principle which was so justly and unequivocally condemned by the President of the United States in 1793. . . . But the British Government must decline to be responsible for the acts of parties who fit out a seeming merchant-ship, send her to a port or to waters far from the jurisdiction of British courts, and there commission, equip, and man her as a vessel of war."
The duty of neutral nations relative to the supply of warlike stores is expressed in these words:
"It is not the practice of nations to undertake to prohibit their own subjects by previous laws from trafficking in articles contraband of war. Such trade is carried on at the risk of those engaged in it, under the liabilities and penalties prescribed by the law of nations or particular treaties." [59]
We now quote from the great American commentator on the Constitution of the United States and on the law of nations: