The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1872-08-26

That. In the opinion of the eminent counsel, be-
,cngs TO pSerogarive and what TO judicial action
mat is in the power Of Parliament or in The
power OF administration, II adequate parlia-
But ali this course of argument ingenious,
subtle and intricate as 1t Is, finally brings the
eminent counsel around to TINS point that by the
power in the Crown to use all the executive au-
thorty OF the nation civil and military to prevent
a hostile act towards another nation within that
territory. That is but another name for prerOga-
tive; there Is no statute on that subject and
writ rom any Court can issue to accomplish that
object.
THE OLD CONTROVERSY.
II this Is undoubtedly part OF the common
law OF England, as the learned counsel
us, whether these acts were in the nature Of Of
nations as such, that ought to have been iht YER
cepted by the exercise OF prerogatye or Dy Ine
power OF the crown at on law s1 :"
the learned counsel Is continually TO prng IL oack
to the point that within the Kingdom OF Great
Britain the Foreign Enlistment act was the
sole authority for action and prevention,
and II these vessels were reasonably pro
ceeded against, under the requirements OF ad-
ministrative duty in enforcing the Foreign Enlist
ment act as against persons and property Tor con.
fiscation or for punishment that was all That was
Sir ALExANDER CocKBuRN-Am to understand
you as lawyer to say that it was competent Tor
the authorities at the port whence such a vessel
escaped to order out troops and command them TO
fireY
whether that was the only way to compel her TO an
observance.
Sir ALEXANDER CocKBURN-I put the question to
Mr. EvARrs-That would draw me to another
subject, viz discussion OF the facts But will
say that 1t depends upon whether the act she Is
engaged in committing comes within the category
Sir ALEXANDER CoCKBuRN-But taking this case
aside diligence
vessel is going out of the Mefsey. DO you say as
lawyer that she should be fred upon
Mr.. EvARTS-Under proper circumstances, yes
Sir ALEXANDER CoCKBuRN-But put the circum-
stances.
circumstances that show such an act OF force Is
necessary to secure the execution of the public au
thority. You do not put in the element that that
Is the only way to bring such vessel to. Ii you
add that element then say yes.
Sir ALEXANDER CoOKBuRN--She is going ont of the
port. Do you, l again ask-do you, as lawyer,
say that it would be competent for the authorities
without q warrant, simply because this Is viola
ton of the law to fire on that vessel
Mr.. EvARTs-Certainly, after the usual pre-
SoMs to- BRING her to- F a she as0in
the issue q escape from the government,
are to fire into her. It Becomes a qaes
ton whether the government is to surrender to the
the lawfuness OF this action depends upon the
question whether the act committed Is, under the
law Of nations violation ns OF ct the neutrality OF the
throughout this argument, the evasion OF an armed
ship would be.
In section sixteen Of this argument you win find
the statement of the learned counsel on this sub
tect OF the executive powers OF the British Govern
ment in this behalf:-
assumption or too Roinedy to state that il any mill
he s a1 proSsl
sense OF these words had been attempted within british
w0H either p'ees o
oS5Sqss S &c y as
and prevent by orSs such expeaons or such acts or
military s asS Gro s W waSs
The aM Of the 20 sa r
ton OF such proceedings.
This is the law OF England, as understood by the
eminent counsel who has presented this argument.
Given the facts that make
THE EVASION FROM THE PORT OF LIVERPOOL
natiOns-because it is hostile act against the
United States, and exposes Great Britain to re-
possibility for the violation Of neutraiiiymthen the
the failure Of remonstrance, OF and of bring
Ing to, for firing into the vessel For certainly, II
we have authority to STOP we not to have that
authority met and frustrated by the persistence Of
violent resistance to 1t.
THE POWER OF THE EXECUTIVE.
1t certainly makes very little difference to us
whether this authority OF the executive to use all
Its forces for the actual prevention OF the occur
renee Of these hostile transactions within the
realm ia lodged in what he calls the common law
Ss rsst OF or y e as w, in
stand this argument throughout to quarrel
with the proposition that an armed ship that
should undertake to proceed out OF the port of
Liverpool would be exposed to the exercise OF that
power; and, OF course, II the proper circum-
been pushed In answer to the questions put to me
by one Of the members or the tribunal. For II the
9%een Is 70 use al er power to prevent hostile
port, committing hostile act, that Power can be
sxerted to the point Of firing into such vessel If
necessary as well as OF merely eXerting the slight
eat tOuCh II that proves sufficient to accomplish
the object.
PREVENTIVE AND PUNITIVE POWERS OF GREAT
BRITAIN.
Sections II to 25 are occupied with discussion
concerning the preventive powers and punitive
powers under the legislation OF Great Britain as
compared with that OF the United States. While
there is here denial that the British government
punitive powers of that act, or that that act
tains no preventive power, or that it contains
still after all, find no progress made beyond
this; that the preventive powers thus re-
Ned upon and thus asserted. as having
origin under, and by virtue Of the act, confined
to the prevention that springs out Of the ability to
punish, or out OF the mode in which the power to
punish is exercised.
Nor will the text OF
FOREIGN ENLISTMENT ACT
Furnish s any evidence that 1t provides any power
Tor the prevention by law Of the evasion of
such vessel, except in the form OF pros
e e. for conscation, which is one of
the modes OF punishment. And when this
Foreign Enlistment act was passed in
1919, 1t was thus lett unaccompanied by any eyecu-
reason. as shown in the debates, that this inter-
ceptive and preventive power resided in the pre-
r0gatve OF the Crown, and could be exercised by
1t. This will be seen from the debates which we
have appended In note Is to our argument.
In comparing that law with the preceding act
passed IN 1918 by the American government, the
debates in Parliament gave the reason Tor the
Judgement OF this prey enive power In the executive
vi the United States, by the act OF Congress, and
for its not being necessary to lodge
SIMILAR PREVENTIVE POWER IN THE BRITISH GROWN,
that there was no prerogative in America, while
there was in Great Britain.
TO be sure, when one OF the punishments pro-
vided by law is a proceeding ia rem Tor
CONVERSATION OF THE VESSELS,
II yOu serve your process at u time and under cir
cumstances to prevent departure oil the vessel on
its Illegal errand, you do eject detention But
that Is ALL The trouble with that detcD ion is that
II Is only detention Of process, to bring TO issue