[5] *Part II. Argument of the United States on neutral duties.

propositions affirmed by the united states.

Part II.—Argument of the United States on neutral duties. In Part III of the Case of the United States an endeavor has been made to furnish the arbitrators with a definition of the duties which Great Britain, as a neutral power, was bound to observe toward the United States during the war. At the close of an elaborate dissertation on this subject, the Government of the United States sums up the conclusions which it conceives itself to have established, in the form of twelve propositions. These propositions it regards as governing the questions involved in the claims which it submits to the arbitrators.

Her Majesty’s government believes that it will adopt the course most convenient to the tribunal, by explaining at once and in the first place how far it assents to the propositions laid down by the United States and how far it dissents from them; examining afterward, so far as may be necessary, the grounds on which the conclusions of the United States are formed, and stating its own conclusions on such points as appear to be in dispute. Propositions affirmed by the United Statesd.

The propositions advanced on the part of the United States are the following:1

“1, That it is the duty of a neutral to preserve strict and impartial neutrality as to both belligerents during hostilties.”

The British government willingly assents to this proposition. No one, indeed, has yet been found to deny that it is the duty of a neutral power to be neutral; or that neutrality is, by its very definition, a condition of impartiality in matters relating to the war; or to affirm that it is possible to be neutral as to one of two belligerents without being neutral as to the other.

“2. That this obligation is independent of municipal law.”

The British government accepts this proposition also.

“3. That a neutral is bound to enforce its municipal laws and its executive proclamation, and that a belligerent has the right to ask it to do so, and also the right to ask to have the powers conferred upon the neutral by law increased, if found insufficient.”

The British government does not dispute that a belligerent government may, if it think fit, ask for any of these things. But that a neutral power is under an international obligation to comply with the request, or to enforce its municipal laws and all proclamations or orders issued by the executive government, is far from being universally true; t is admissible only under very material qualifications, which will be [Page 208] presently stated. Still less can it be admitted to be generally true that a belligerent power has a right to call upon the neutral state to make changes in its domestic legislation.

“4. That a neutral is bound to use due diligence to prevent the fitting out, arming, or equipping within its jurisdiction of any vessel which it has reasonable ground to believe is intended to cruise or carry on war against a power with which it is at peace.

“5. That a neutral is bound to use like diligence to prevent the construction of such a vessel.

“6. That a neutral is bound to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war against any power with which it is at peace, such vessel having been specially adapted, in whole or in part, within its jurisdiction, to warlike use.

“7. That a neutral may not permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other.

“8. That a neutral is bound to use due diligence in its ports or waters to prevent either belligerent from obtaining there a renewal or augmentation of military supplies, or arms for belligerent vessels, or the recruitment of men.”

[6] Great Britain adheres to the three rules inserted in Article VI of the treaty of *Washington, and accepts them in the words in which they are there expressed, while it considers those rules as exceeding in some material respects the obligations which, independently of them, could have been established by international law against a neutral power free from all engagements on the subject, direct or indirect, with a belligerent. The British government is willing to discuss “the construction of these rules, but declines to admit any deviation from or enlargement of them. The statement that a neutral government “is bound to use like diligence to prevent the construction of such a vessel” appears to Her Majesty’s government to be such a deviation or enlargement. It is, in fact, a simple interpolation. Nor can the propositions numbered 7 and 8 be accepted as a correct representation of the second and third rules.

“9. That when a neutral fails to use all the means in its power to prevent a breach of the neutrality of its soil or waters, in any of the foregoing respects, the neutral should make compensation for the injury resulting therefrom.”

The British government does not admit this proposition as it stands, but it agrees that, where an appreciable injury has been directly caused by a violation of a clearly-ascertained international duty, suitable reparation ought to be made to the injured party.

“10. That this obligation is not discharged or arrested by the change of the offending vessel into a public man-of-war.

“11. That this obligation is not discharged by a fraudulent attempt of the offending vessel to evade the provisions of a local municipal law.

“12. That the offense will not be deposited so as to release the liability of the neutral even by the entry of the offending vessel in a port of the belligerent, and there becoming a man-of-war, if any part of the original fraud continues to hang about the vessel.

Her Majesty’s government must observe, with all respect for the Government of the United States, that it can neither admit nor deny propositions to which it finds itself unable to attach a distinct meaning. It is not for the British government to contend that any obligation, either of a government or of an individual, which has not been fulfilled [Page 209] can be discharged by subsequent proceedings, such as are here supposed, of others parties. But if it be meant to suggest that, in any such case, the default of the neutral power is not limited to the acts done or omitted to be done on its part, within its own territory, but is to be deemed a continuing default, or series of defaults, during the whole or some part of the subsequent proceedings of the offending vessel beyond its jurisdiction, the British government must demur altogether to such a doctrine, as unknown to international law and opposed to reason and principle.

argument of the united states.—effect ascribed to british laws and regulations as interpretations of international law.

Effect ascribed to British laws and regulations as interpretations of international law. The differences which exist between the British government and that of the United States arise partly in the statement of principles, but more in the application of them to facts admitted or proved. The latter government has prefixed to its twelve propositions a lengthened argument, which appears to be designed to prove that, if not true in themselves, they are true against Great Britain; and that, if true in themselves, they ought to be applied against her with exceptional and pecular rigor. This argument appears to the British government to contain errors of the gravest kind.

The source of these errors is manifest. The Government of the United States is not satisfied to rely upon the three rules embodied in the treaty, coupled with the general principles of international law not inconsistent with them, as sufficient to support the claims urged against Great Britain. It desires, therefore, to persuade the arbitrators to apply to the conduct of Great Britain, not the general standard of neutral obligation which, under corresponding circumstances, they would apply to the United States, or to any other power which had accepted those rules, but a stricter and more rigorous standard, drawn from the municipal laws of Great Britain, from administrative acts of the British government, or from declarations of British statesmen.

The positions contended for by the United States are in substance as follows:

The municipal laws of Great Britain and the administrative acts of her government are to be regarded as defining as against herself her conception of her international duties. What these laws or acts prohibit, she must be assumed to regard as prohibited by the law of nations, and by that standard she must be tried. In short, where her conception of international duty, thus measured, appears to fall short of the common standard, it is to be disregarded; in every other case it is to be assumed as the measure of what she owes to other nations, though not as the measure of what other nations owe to her.
[7] Independently of this theory, Great Britain is under an international obligation to *execute her municipal laws and enforce her proclamations and ordinances where they are for the advantage of other nations.
In the performance of these duties Great Britain is bound to use “due diligence,” by which is meant an exercise of active vigilance and an effectual use of all the means within the power of the government.
Failing to use this due diligence, Great Britain is bound to make compensation for any injury resulting from such failure.

It is necessary to state these positions clearly, because they are expressed with some vagueness in the Case of the United States.

[Page 210]

Such, then, is the general measure of neutral duties which the Government of the United States has adopted, and endeavors to persuade the arbitrators to adopt, in support of its claims against Great Britain.

To state the first of this series of positions is to confute it. If it were a true assumption that the municipal laws of a state, wherever they prohibit acts which may affect the security or interest of other states, must have been founded, not on considerations of policy and expediency, but on conceptions of international obligation, it would nevertheless be impossible to contend, with any show of reason, that, by these conceptions, and not by the general rules of the law of nations, the state was to be judged in any international controversies in which it might become engaged. Such a rule, it is evident, would produce the most fantastic consequences. In place of a common and equal standard of obligation, we should then have a varying and unequal one, varying with the nations to which it was applied and with the notions of duty which they might from time to time entertain. It would be as reasonable to contend that a question between private litigants ought to be decided, not by the law, but by what the defendant had supposed to be the law, provided that the plaintiff could show that the difference was in his own favor.

It is not, however, a true assumption that whatever the laws of a state prohibit in matters affecting the security or interests of other states, it must have held itself bound to prohibit by force of an international obligation. This is a hypothesis as groundless as it is unreasonable; for the primary and immediate object of municipal law is the protection of the security and interests of the state itself and its citizens, and it is clear that, with a view to this object, it may be, and frequently is, expedient to prohibit, in relation to other states, acts not prohibited by the law of nations. The theory of the United States would assume that this never is or can be expedient.

This observation applies with all its force to those municipal laws which are sometimes styled “neutrality laws.” Such laws belong to the class which, in the codes of some European nations, are described as having for their object the protection of the internal and external security of the state. Thus, by the penal code of France it is made an offense to levy or enroll soldiers without the authority of the government, and penalties of various degrees of severity are denounced against any persons who, by acts not approved by the government, may have exposed French citizens to reprisals or the state to a declaration of war. These provisions have been adopted in the penal code of the kingdom of Italy, in that of the Netherlands, and by other countries.

The law known in England as the foreign-enlistment act of 1819 belongs to the same class. The considerations on which it is founded are thus stated in the preamble:

Whereas the enlistment or engagement of His Majesty’s subjects to serve in war in foreign service without His Majesty’s license, and the fitting out and equipping and arming of vessels by His Majesty’s subjects without His Majesty’s license, for warlike operations in or against the dominions or territories of any foreign prince, state, or potentate, or persons exercising or assuming to exercise the powers of government in or over any foreign country, colony, province, or part of any province, or against the ships, goods, or merchandise of any foreign prince, state, potentate, or persons aforesaid, or their subjects, may be prejudicial to and tend to endanger the peace and welfare of this kingdom; and whereas the laws in force are not sufficiently effectual for preventing the same: be it therefore enacted, &c.

Laws of this kind serve, among other purposes, that of enabling or assisting the state which enacts them to discharge, when a neutral in war, the duties, and protect the rights, of neutrality, and they may [Page 211] therefore, with perfect propriety, be described as having that object in view. Bat their main, though not always their sole, purpose is to restrain whatever may tend to imperil the relations of the state with foreign powers; they are framed on those considerations of expediency by which all legislation is governed; and, as they may stop short in some respects of the provisions of international law, so they may transcend them in others.

[8] It has sometimes been argued, indeed, though not with success, that the law of nations should be regarded as furnishing an interpretation of the foreign-enlistment act, *and confining its scope to acts which can be shown independently to be within the prohibitions of that code.1 But that the act should, on the contrary, be viewed as extending the prohibitions of the law of nations, was never, to the knowledge of Her Majesty’s government, contended by any one, and such an argument would certainly receive no attention from any judicial tribunal.2

The Government of the United States has appealed, in support of this erroneous notion, to certain English authorities; and the manner in which it has referred to them cannot be left unnoticed. The following sentence is given as a quotation from a dispatch signed by Earl Russell: [Page 212] “That the foreign-enlistment act is intended in aid of the duties * * of a neutral nation.”1 What were the words of Earl Russell They were these: “That the foreign-enlistment act, which was intended in aid of the duties and rights of a neutral nation, can only be applied,” &c. The meaning of the sentence is altered by leaving out two of the most important words. Again, the report of a commission appointed in 1867 to consider the laws of Great Britain “available for the enforcement of neutrality,” is thus referred to:

The tribunal of arbitration will search the whole of that report, and of its various appendixes, in vain to find any indication that that distinguished body imagined, or thought, or believed that the measures which they recommended were not “in full conformity with international obligations.” On the contrary, the commissioners say that, so far as they can see, the adoption of the recommendations will bring the municipal law into full conformity with the international obligations. Viewing their acts in the light of their powers and of their instructions, the United States feel themselves justified in asking the tribunal to assume that that eminent body regarded the acts which they proposed to prevent by legislation as forbidden by international law,2

What is the passage which the Government of the United States has referred to, but has refrained from extracting? It is this:

In making the foregoing recommendations we have not felt ourselves hound to consider whether we were exceeding what could actually he required by international law, but we are of opinion that, if those recommendations should be adopted, the municipal law of this realm, available for the enforcement of neutrality, will derive increased efficiency, and will, so far as we can see, have been brought into conformity with your Majesty’s international obligations.3

[9] *Thus by leaving out the words in which the commissioners observe that their recommendations may exceed the requirements of international law, and by using in one sense words which (as the context proves) they employed in another, they are represented as saying the very thing which they expressly guarded themselves from being supposed to say, namely, that all the acts which they proposed to prohibit were, in their judgment, already forbidden by international law.4

The Government of the United States further assumes that the same false principle is to be applied not only to laws, but to the proclamations, orders, and regulations issued during a war by neutral nations. These also are to be supposed to prohibit nothing which the government that issues them does not believe to be interdicted by international law.

Her Majesty’s government had supposed that the nature of these acts and orders was a thing perfectly well understood by the United States, as it certainly is by maritime nations in general. They are universally understood to be acts done in the free exercise of that right which every sovereign state possesses to regulate the access of belligerent vessels to its ports. They convey no admission whatever that [Page 213] what they enjoin is enjoined, or that what they prohibit is prohibited, by the law of nations. In some cases this may be so; commonly it is not so. Bat the acts themselves, whether they happen to coincide with rules of international law or not, are voluntary and discretionary. They are done in exercise of a right, not in performance of an obligation.

The foregoing remarks have been drawn from the British government by the attempt made in the Case of the United States to introduce into this controversy an assumption which is clearly erroneous: the assumption, namely, that whatever is or was prohibited by British law or by the orders or proclamations of the British government ought, as against Great Britain, to be held to be prohibited by the law of nations.

Thus it is asserted1 that all the acts prohibited by the 2d, 5th, 6th, 7th, and 8th sections of the foreign-enlistment act must be held, as against Great Britain, to be acts which a neutral government “ought,” or “was bound,” not to permit to be done within its jurisdiction, and were violations of the international duties “of a neutral;” that the foreign-enlistment act defines and recognizes the “principles and duties” “obligatory on the nation in its relations with other powers;” that the act of 1870 was “intended, at least as against the British government, as a re enactment of the law of nations;” that the restrictions placed by the British government on the stay of belligerent vessels in its ports are to be regarded as commanded by international law, instead of being, what they really were, regulations issued in the free exercise of the sovereign rights of a neutral power; lastly, that the supposed rules or principles of international law thus extracted from British laws and ordinances may and ought to be applied by the tribunal against Great Britain, without being recognized by it as applicable under like circumstances against other neutral nations in general.

Her Britannic Majesty’s government declares, on the contrary, in the most explicit manner, that the law to which it has submitted its conduct, and by which it has consented to be tried, is the international law recognized in common by all civilized states, coupled with the three rules embodied in the treaty; that this law is to be gathered, not from British statutes or ordinances, but from the general consent of nations, evidenced by their practice; and that the laws and ordinances of Great Britain herself can be appealed to only for the single purpose of proving that her government was armed with sufficient power to discharge its international duties, and not for the purpose of extending, any more than of restricting, the range of those duties.

argument of the united states.—alleged duty of a government to enforce its own laws and regulations.

Alleged duty of a government to enforce its own laws and regulations.
At page 211 of its Case, the Government of the United States lays down, as against Great Britain, the general proposition that a neutral is bound to enforce its laws and its *“executive proclamation.” It appears to contend for the same proposition at page 108. But, at pages 122, 123, it expressly guards itself against being supposed to admit that Great Britain, against whom this supposed principle is pressed, would herself, if the case were reversed, be entitled to the advantage of it against the United States or against other nations. The arbitrators, therefore, are solicited to assume that Great Britain was bound to enforce her laws and ordinances [Page 214] so far as they were in favor of the United States, with the un demanding that the decision is not to imply that any corresponding obligation was, or is, incumbent on the United States or on other powers toward Great Britain.

In defense of this extraordinary suggestion it is pleaded that in 1793, during General Washington’s administration, the representative of Great Britain in the United States pointed out to Mr. Jefferson, who was then Secretary of State, acts which were deemed by His Britannic Majesty’ government to be ‘breaches of neutrality’ done in ‘contravention of the President’s proclamation’ of neutrality, and he invited the United States to take steps for the repression of such acts and for the restoration of captured prizes,” and that “it appears that the United States complied with these requests.” It will be seen that the representations then made on the part of this country to the United States were founded on the character of the acts themselves, which were deemed by the British government to be breaches of neutrality, and not upon the fact that they were prohibited by the President’s proclamation. Further comment on this supposed precedent, which will hereafter be examined for a different purpose, is here unnecessary.

The international duties which Great Britain acknowledges toward other states she will at all times hold herself entitled to enforce against them. And she would not have expected that, under any circumstances, the United States could have taken a different view.

Disregarding the attempt to confine the operation of it to a single power, Her Majesty’s government cannot admit the proposition for which the Government of the United States contends. Setting aside those cases in which the law or ordinance serves only as a means of enabling the government to discharge an antecedent international obligation, and cases in which the omission to enforce it would be an instance of willful partiality or a violation of an express or tacit engagement, it cannot be admitted that a state is bound by any international duty toward other states to execute or enforce its own ordinances or laws within its own territory. A state is bound to enforce the laws which afford protection to life and property, for the benefit of commorant foreigners as well as for that of its own citizens; because it is a principle universally recognized that foreign residents obeying the laws are entitled to the protection which they bestow. Here there is an antecedent duty. But a state is not bound to enforce revenue laws of its own, from which an incidental advantage may be reaped by some foreign nation or its citizens; for here there is no antecedent duty. Still less can it be allowed, in the absence of any antecedent obligation, that in executing its own laws a state is bound, in relation to other states, to the exercise of active vigilance and exact diligence, or that it owes them compensation for any loss they may conceive themselves to have sustained through a default in this respect. The comity of nations, indeed, permits representations and remonstrances to be made by one government to another in cases where no strict right exists. Nor is Her Majesty’s government disposed to deny that cases may occur in which, through a reasonable confidence that the laws and ordinances of a particular state would be executed according to their tenor, losses may have been incurred by another state or its citizens or subjects for which some reparation might fairly and equitably be made. But the claim for compensation in such cases arises from special circumstances, and appeals to international comity and an enlarged sense of equity, not to strict right. Great Britain is willing to go as far as any state has ever gone in this direction. The British government has never denied, on the contrary, it has [Page 215] at all times freely and readily admitted, that the United States had reasonable ground to expect that the provisions of the foreign-enlistment act would, like the other municipal laws of Great Britain, be fairly executed, even where they might exceed the ascertained limits of the law of nations. This consideration, and the wish that every cause of complaint on the part of the United States should be completely and effectually removed, together with the desire to make satisfactory provision for the future, induced Her Majesty’s government, in concluding the treaty of Washington, to consent that a retrospective effect should be given to the three rules inserted in the VIth Article of that treaty.


The conduct of Great Britain in this matter is to be tried by the three rules of the treaty of Washington, coupled with such general principles of international law, not *inconsistent with those rules, as may appear to have been applicable to the case. The general principles of international law are to be collected from those sources to which it is customary to have recourse, and not from the municipal law of Great Britain, nor from administrative acts or regulations of the British government; and these are to be applied, as against Great Britain, in the same manner in which they would be applied, under like circumstances, against the United States or any other sovereign state.

argument of the united states.—extent of neutral obligations, as deduced from the three rules and from general principles of international law.

Extent of neutral obligations, as deduced from the three rules and from general principles of international law. Her Britannic Majesty’s government proceeds to remark upon that part of the Case of the United States in which the Government of the United States has explained and endeavored to support its view of the extent of the duties of a neutral power.

The British government deems it right here to observe that the questions submitted to the tribunal are not of an abstract or speculative character. The arbitrators have not to consider and determine what rules might with advantage be laid down for the regulation of the conduct of neutral powers during war; what, under such rules, would have been the duty of Great Britain, or whether Great Britain acted in accordance with that standard of duty. They have to deal with facts. Injuries are alleged to have been inflicted by Great Britain and sustained by the United States. Reparation is claimed for those injuries. There can be no injury without some violation of a duty actually existing at the time.1 The arbitrators, before they decide against Great Britain, must be satisfied that there was such a violation of duty. They must be satisfied, therefore, in the first place, that the alleged duty really existed. They must be satisfied, further, that the violation, if any, was such that reparation may justly be awarded for it in money—that is, that it was the direct cause of some substantial and appreciable loss to the party claiming reparation.

[Page 216]

The neutral duties which it is alleged by the United States that Great Britain failed to discharge are of two classes, which should be kept distinct from each other. They relate to—

The original fitting out, arming, or equipping in neutral ports of vessels intended for the naval service of a belligerent, and the original departure from the jurisdiction of the neutral of vessels intended for such service, and adapted for war wholly or in part within such jurisdiction.
The admission into the ports or waters of a neutral of vessels in the naval service of a belligerent, whether such vessels were or were not originally adapted for war within the jurisdiction of the neutral, and acts done by or in respect of vessels so admitted.

The question what measure of diligence or care may justly be demanded of a neutral government in the prevention of acts on the part of its subjects or citizens which are inconsistent with neutrality, and the question in what cases and on what accounts reparation may justly be awarded, are again distinct from the foregoing, and have to be considered separately.

(A.) original equipment, etc., of belligerent vessels in neutral ports.

(A.) Original equipment, etc., of belligerent vessels in neutral ports.
As to neutral duties falling under the first of these heads, Her Britannic Majesty’s government adheres to what is laid down in the three rules embodied in the sixth article of the treaty, and more particularly in the first of those rules. The British government is well convinced that these rules go beyond any definition of neutral duty, which, up to-that time, had been established by the law or general practice of nations; but it refrains from arguing that question, holding that the discussion of it is precluded, except so far as may be necessary for the purpose of dealing with arguments founded on an assumed state of international law, as distinct from an undertaking by Her Majesty to act upon the rules. By common consent the rules are, for the purposes of this arbitration, to be *taken as applicable to the case; it is to be assumed, without dispute on either side, for the purpose of this arbitration, that the obligations which they purport to express were such as Great Britain had undertaken to perform.

Since, however, the Government of the United States has thought proper to enter into the question at some length, Her Majesty’s government deems it not improper to repeat here a statement already made in its case presented to the tribunal.

“The case,” it was there said, “of a vessel which is dispatched from a neutral port to or for the use of a belligerent, after having been prepared within the neutral territory for warlike use, is one which may be regarded from different points of view and may fall within the operation of different principles. The ship herself may be regarded merely as an implement or engine of war, sold or manufactured to order within neutral territory, and afterward transported therefrom, and the whole transaction as falling within the scope of the principles applicable to the sale, manufacture, shipment, and transportation of articles contraband of war; or, on the other hand, the preparation and dispatch of the ship may be viewed as being really and in effect the preparation and commencement of a hostile expedition. The circumstances of each case can alone determine from which of these two points of view it may most fitly be regarded, and to which class the transaction ought to be [Page 217] assigned. But the difficulty of drawing a clear, precise, and intelligible line between these two classes of transactions has always been considerable in theory and still greater in practice; and it was enhanced to the utmost during the civil war by the ingenuity and audacity of American citizens, who were engaged in carrying on hostilities against the Government of the United States, and were desirous of availing themselves for this purpose of the ship-building and manufacturing resources of Great Britain. This will sufficiently appear from the narrative which follows; and it will be seen also how serious and incessant were the trouble and embarrassment which these enterprises occasioned to Her Majesty’s government. It is by the many difficulties encountered and by the experience acquired during the war that Her Majesty’s government was finally led to the conclusion that it was expedient, not only to enlarge the scope of its municipal law in relation to this subject beyond what has hitherto been deemed necessary in any other country, but, further, to accept for itself, and propose to other powers, rules of international obligation somewhat more stringent and comprehensive than are to be found in earlier expositions of the law of nations.”

The British government believes that the arbitrators would search in vain in text-books of acknowledged authority anterior to the civil war, and in the general practice of maritime nations, for any proof or acknowledgment of a duty incumbent on neutral governments to prevent their citizens or subjects from supplying belligerents with ships adapted for warlike use. They would find it, indeed, asserted, on the one hand, that among the duties of a neutral government is that of preventing hostile expeditions in aid of either belligerent from being organized within and dispatched from its territory. They would not, on the other hand, find the sale or delivery to a belligerent by a citizen or subject of the neutral of a vessel adapted for war classed among the acts which the neutral government is bound to prevent, nor would they find any distinction drawn in this respect between the sale and delivery of a vessel built to order and that of a vessel not built to order.1

It is true beyond controversy that, at the time when the events occurred out of which the claims of the United States have arisen, the mere sale and delivery of a vessel adapted for war in a neutral port to a belligerent, and the mere construction of such a vessel to the order and for the use of a belligerent, had not been declared by any authority to be acts which the neutral government was under an obligation to prevent, or which violated any neutral duty. And it must never be forgotten that the obligations of international law are such as have been received and acknowledged by the general consent of nations. No private opinions or theoretical developments of the principles on which they are supposed to rest can ever constitute new international obligations or enlarge the old till they have been themselves generally acknowledged and received. It would seem, indeed, to be inconsistent with neutrality for a neutral power to introduce or admit, during war, innovations on these subjects to the prejudice of either belligerent.

[13] It is true, also, that it was a question at the least of reasonable and serious doubt, whether either of these classes of acts was a contravention of the municipal law of England or would have been a contravention of that of the United States. Simple justice demands that this should be steadily kept in view in determining whether, in any of the cases brought *before the arbitrators, there was, on the [Page 218] part of the British government or any of its subordinate officers, such a defect of promptitude or decision as to amount to culpable negligence. It is material to be borne in mind, in considering what facts were known to the government, what those facts proved or did not prove, and what, upon the facts which were known to it, and on which alone it could act, it was the duty of the government to do.

It has been already stated to the arbitrators, in the case presented to them on the part of Great Britain, that, in the judgment of Her Majesty’s government and its official advisers, the special adaptation of a vessel to warlike use was among the acts prohibited by the foreign-enlistment act, provided there were sufficient proof that she was intended for the service of a belligerent, although the vessel might not be actually armed so as to be capable of immediate employment for war. The provisions of the acts are not, as has been already observed, to be regarded as declaratory of the law of nations. But Her Majesty’s government agrees that by the second clause of the first rule it was the intention of the high contracting parties to preclude any question on this point from being raised before the arbitrators, with reference to the words “fitting out, arming, or equipping” in the first clause.

Great Britain does not, on this or any other point, desire to raise or dispute before the arbitrators any doubtful or obscure questions of public law. She desires, on the contrary, that they should be relieved, as far as possible, from the necessity of considering such questions, and she expects from them a fair and just decision on ascertained facts, tried by the application of admitted principles, or of plain and legitimate inferences from admitted principles. She accepts as applicable to the case, and as substantially sufficient for an equitable adjudication on it, the proposition that a neutral government, which has assented to the rules laid down in the sixth article of the treaty, is bound—

  • First. To use due diligence to prevent the fitting out, arming,-or equipping, within its jurisdiction, of any vessel which it has reasonable grounds to believe is intended to cruise or to carry on war against a power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use.
  • Secondly. Not to permit or surfer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men.
  • Thirdly. To exercise due diligence in its own ports or waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties.

She accepts these rules, not with the refinements of meaning and the overstrained rigor of construction which are applied to them in the Case of the United States, but according to their obvious purport, and as they would naturally be understood by persons conversant with the law and practice of nations; and she maintains that the British government did not at any time during the war, in respect of any of the vessels to which the claims of the United States relate, or of any other vessels, fail to use the due diligence which the rules require.

(B.) admission of belligerent vessels into neutral ports.

(B.) Admission of belligerent vessels into neutral ports. With respect to the admission of belligerent ships of war into neutral , ports, the principles of the law of nations are clearly set-tied, not only by the general consent of publicists, but by a long and nearly uniform practice.

It is the right of a neutral government, at its absolute discretion, either to refuse admission or to grant it, and extend to the vessels [Page 219] so admitted all the ordinary hospitalities of a friendly port, on such conditions, and subject to such regulations, if any, as the neutral government may think fit to make; provided only that the same facilities be offered to both belligerents indifferently, and that such vessels be not permitted to augment their military force, or increase or renew their supplies of arms or munitions of war, within the neutral territory.

[14] A neutral government is not required by the law or practice of nations to place any restrictions whatever upon the liberty which it accords of purchasing provisions, coal, and other supplies, (not being supplies of arms or munitions of war.) It is not a principle or rule of the law of nations that the supplies purchased should be limited to the quantity necessary for enabling the vessel to gain the nearest port of her own country or of an ally. No such principle was ever, so far as Her Majesty’s government is aware, admitted or contended for by any maritime power. On the contrary, it has been the constant practice *to allow belligerent vessels to repair, refit, and supply themselves with stores and fuel, with the avowed intention of continuing to cruise. So also belligerent ships may be either permitted or forbidden, at the pleasure of the neutral, to bring in prizes, to retain possession of them, or even to sell them, although there can be no condemnation of them as prize by any authority locally situate within the neutral territory. Special restrictions may undoubtedly be imposed by the neutral government if it think fit, but they may be revoked at any time, and do not confer any right on either belligerent. Ail that a belligerent has a right to demand is, that restrictions imposed on him shall be imposed on his enemy likewise.1

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[15] *first limitation suggested by the united states.

It has been necessary for Her Britannic Majesty’s government to recall the attention of the tribunal to these well-known and elementary maxims, because the Government of the United States has not only endeavored to fix upon the regulations and instructions which the British government deemed it expedient to issue during the war to its own officers, a character which they did not possess, that of acknowledgments [Page 221] or recognitions of rules obligatory under the law of nations; it has further insisted upon a construction of the words of the second rule, which no neutral nation could safely accept, and which was not in the contemplation of Great Britain at the time when they were agreed to.

The novel limitations which it is attempted thus to introduce are in the following passage, mingled with limitations which at present exist and are recognized by established usage:

The ports or waters of the neutral are not to he made the base of naval operations by a belligerent. Vessels of war may come and go under such rules and regulations as the neutral may prescribe; food and the ordinary stores and supplies of a ship not of a warlike character may be furnished without question, in quantities necessary for immediate wants; the moderate hospitalities which do not infringe upon impartiality may be extended; but no act shall be done to make the neutral port a base of naval operations. Ammunition and military stores for cruisers cannot be obtained there; coal cannot be stored there for successive supplies to the same vessel, nor can it be furnished or obtained in such supplies. Prizes cannot be brought there for condemnation. The repairs that humanity demand can be given, but no repairs should add to the strength or efficiency of a vessel, beyond what is absolutely necessary to gain the nearest of its own ports. In the same sense are to be taken the clauses relating to the renewal or augmentation of military supplies or arms and the recruitment of men. As the vessel enters the port, so is she to leave it, without addition to her effective power of doing injury to the other belligerent. If her magazine is supplied with powder, shot, or shells; if new guns are added to her armament; if pistols, or muskets, or cutlasses, or other implements of destruction are put on board; if men are recruited; even if, in these days when steam is a power, an excessive supply of coal is put into her bunkers, the neutral will have failed in the performance of its duty.1

According to this interpretation a neutral government which should suffer a belligerent cruiser to effect any repairs beyond what are absolutely necessary for gaining the nearest of its own ports, or to receive more coal than would be enough for the same purpose, would commit a breach of neutral duty. It may, indeed, sometimes be found convenient by neutral powers to impose restrictions of this nature, more or less stringent, on the armed vessels of belligerents admitted into their ports; and this was done by Great Britain during the civil war. But such restrictions were not then, and are not now, dictated by any rule of international obligation. Were they to become such, and were the obligation to be construed against the neutral with the breadth and rigor for which the United States contend, it may be feared that neutral powers would rarely be secure against complaints and demands for compensation on the part of one belligerent or another.

Having constantly during the war used British ports as places of resort for its own cruisers, and having repeatedly obtained for them therein successive supplies of coal, which were consumed, not in returning home, but in cruising, the Government of the United States now appears to represent this very act as a breach of neutral duty, and to hold Great Britain liable for any cases in which confederate vessels may have succeeded in obtaining similar facilities.

[16] This question, however, does not regard Great Britain alone. The Government of the United States has plainly declared that it regards these rules as no more than a statement of previously established rules of international law.2 So far as regards the second rule *Her [Page 222] Britannic Majesty’s government concurs in this view. The expressions upon which the United States rely belong to a class in common use among publicists, who, in attempting to define the duties of neutrality, are accustomed to employ these words or others equivalent to them, and of not less extensive meaning. Thus the phrase “base of naval operations,” employed in this connection, denotes the use of neutral territory by a belligerent ship as a station or point of departure, where she may await and from whence she may attack her enemy. That these expressions have not hitherto received the construction which the United States would put upon them is certain. Whether they are to receive it in future is a question which concerns not Great Britain only, but all other powers which may hereafter find themselves neutral in maritime warfare.1

further limitation suggested by the united states.

Further limitation suggested by the United States. The Government of the United States insists further that the general right of neutral powers to allow free entrance into and egress from their ports to belligerent ships of war is subject to one important exception. This exception relates to vessels which have been originally adapted for war wholly or in part within the jurisdiction of [Page 223] the neutral. It is insisted that the neutral government is bound to seize and detain such vessels whenever they may enter its ports; that this is a duty which it owes to the other belligerent, and by the nonperformance of which it becomes liable to a demand for compensation.

In the view of the United States this also is a general rule of international law, which existed before the treaty of Washington, binding on all neutral powers, and is expressly affirmed, also, as between the United States and Great Britain, by the first of the three rules.

It is stated as follows:

[17] A neutral government is bound, first, to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use. The United States invite the particular attention of the tribunal to the continuing character of the second clause of this rule. The violation of the first clause takes place once for all when the offending vessel is fitted out, armed, or equipped within the jurisdiction of the neutral; but the offense under the second clause may be committed as often as a vessel, which has at any time been specially adapted, in whole or in part, to warlike use, within the jurisdiction of the neutral, enters and departs unmolested from one of its ports. *Every time that the Alabama, or the Georgia, or the Florida, or the Shenandoah came within British jurisdiction, and was suffered to depart, there was a renewed offense against the sovereignty of Great Britain and a renewed liability to the United States.1

The words “specially adapted for warlike use” include, according to the United States, any adaptation whatever “for the hostile use of a belligerent, whether that adaptation began when the keel was laid to a vessel intended for such hostile use, or whether it was made in later stages of construction, or in fitting out, or in furnishing, or in equipping, or in arming, or in any other way.”2 In every case in which anything whatever had been done, however slight, to fit the vessel for warlike use, (for the language of the United States is framed with studied care to embrace every possible act of adaptation,) the obligation, with its attendant liability, attaches on the neutral government.

This duty seems to have, according to the United States, no limit of time. It applies to vessels which have “at any time” received any partial adaptation for warlike use in the building-yards, docks, or waters of the neutral country; it applies to public ships of war commissioned by a belligerent power; and it applies to them indifferently whether the act or acts of adaptation took place after they were commissioned or before it, and before they came into the possession of the commissioning power. Literally, it might even be taken to apply to cases in which the adaptation had taken place for purposes totally unconnected with the particular war or with either of the belligerents. Had the United States intended to limit in any way their peculiar interpretation of the clause, they might have been expected to state the limitation. But it is clear that they had no such intention, for they have been careful to employ the widest and most comprehensive language they could possibly command.

It can hardly be necessary to say that this pretended obligation, whereby a neutral government would be bound to seize by force any public armed ship which might enter its ports, and of which there might be reason to believe that she had at any time before received some partial adaptation for war within the jurisdiction of the neutral, is entirely unknown to the law, unsupported by practice, and in direct [Page 224] conflict with the principles which have hitherto governed the admission of public ships of war into the ports of friendly nations.

This would alone be sufficient to condemn the interpretation of the second rule suggested by the United States, even if it could, with any. plausibility, be represented as the natural meaning of the words employed. But it is not their natural meaning. No one who desired to lay down such a principle would clothe it in such language. It is clear that these words point to a departure following the special adaptation, while the hostile purpose still rests in intention, and the vessel may still, by due diligence, be prevented from quitting the neutral territory to carry that purpose into execution; and that they could not, without violence, be applied to a case in which the ship, having succeeded in effecting her departure and finally quitted the neutral jurisdiction, has subsequently re-entered it at an indefinite distance of time; when, instead of being merely “intended for warlike use,” she is known to be actually engaged in hostile operations, and when her original character has been exchanged for that of a public ship of war, recognized as such in the ports of other neutral states, and exempt as such from all local jurisdiction. Unless a violation of neutrality had been established in due course of law against such a vessel while properly subject to the neutral jurisdiction, the question of fact whether such a violation had taken place could not, by any form of proceeding, be investigated between the neutral power and the belligerent whose flag she bore. Even if the proof of the facts, in foro competente, were as easy as it has been generally found difficult,’ the belligerent power would justly deny the right of the neutral to exercise jurisdiction over a vessel forming part of its public maritime force, for the purpose of any such inquiry. And to detain a public ship of war in a neutral port for acts done before she had obtained that character, without any previous notice that she was not at liberty to come in upon the usual terms, would be in itself an act of war, and a plain violation of well settled rules of international comity.

[18] Her Britannic Majesty’s government observes with sincere regret that, as in other particulars, so more especially in this, the Government of the United States, instead of accepting in a fair and reasonable sense rules which the two powers have engaged to observe toward one another and to recommend for adoption to other states, seems on this occasion to have considered how they might be turned to the greatest advantage in the present controversy, and with that view to have strained the construction of them to the very utmost. The undue extension which it is proposed to give to the first rule does not accord with its plain and natural meaning, was never contemplated *by the government of Her Britannic Majesty, and is altogether rejected by Great Britain.

The British government concurs with the Government of the United States in holding that a vessel which has become liable to arrest and seizure within neutral jurisdiction, by reason of a violation of neutrality, cannot relieve itself from that liability by merely removing to another place within the same jurisdiction, and that the duty of the neutral government to seize and detain, where such a duty exists, would not be affected, though the execution of it might without any want of due diligence be embarrassed or prevented by the mere fact of such removal. The orders issued for the seizure of the Alabama under the powers of the foreign-enlistment act would have been executed at Queenstown or Nassau, had she gone from Liverpool to either of those places, exactly as they would have been executed at Liverpool if they [Page 225] had arrived in time. Bat the Alabama, when she touched for the first time at a port of a British colony, had for more than six months been commissioned and in active service as a cruiser of the Confederate States 5 had, as such, fought a successful action with a United States war steamer; and, as such, has been received at the French island of Martinique, as she afterward was at Fernando de Noronha, Bahia, and Cherbourg. And, in matters relating to the war, it was the duty of Great Britain, as it was the duty of other neutral powers, to treat the Alabama in exactly the same manner as, under corresponding circumstances, they would have treated a public ship armed and commissioned by a recognized sovereign state.

Her Majesty’s Government, in its Case presented to the tribunal of arbitration, has stated the following propositions:1

Maritime war being carried on by hostilities on the high seas, and through the instrumentality (ordinarily) of vessels commissioned by public authority, a neutral power is bound to recognize, in matters relating to the war, commissions issued by each belligerent and captures made by each, to the same extent and under the same conditions as it recognizes commissions issued and captures made by the other.

Where either belligerent is a community or body of persons not recognized by the neutral power as constituting a sovereign state, commissions issued by such belligerent are recognized, as acts emanating, not indeed from a sovereign government, but from a person or persons exercising de facto in relation to the war, the powers of a sovereign government.

Public ships of war in the service of a belligerent, entering the ports or waters of a neutral, are, by the practice of nations, exempt from the jurisdiction of the neutral power. To withdraw or refuse to recognize this exemption without previous notice, or without such notice to exert, or attempt to exert, jurisdiction over any such vessel, would be a violation of a common understanding, which, all nations are bound by good faith to respect.

A vessel becomes a public ship of war by being armed and commissioned, that is to say, formally invested by order or under the authority of a government with the character of a ship employed in its naval service and forming part of its marine for purposes of war. There are no general rules which prescribe how, where, or in what form the commissioning must be effected, so as to impress on the vessel the character of a public ship of war. What is essential is, that the appointment of a designated officer to the charge and command of a ship likewise designated be made by the government or the proper department of it, or under authority delegated by the government or department, and that the charge and command of the ship be taken by the officer so appointed. Customarily, a ship is held to be commissioned when a commissioned officer appointed to her has gone on board of her and hoisted the colors appropriated to the military marine. A neutral power may indeed refuse to admit into its own ports or waters as a public ship of war any belligerent vessel not commissioned in a specified form or manner, as it may impose on such admission any other conditions at its pleasure, provided the refusal be applied to both belligerents indifferently; but this should not be done without reasonable notice.

The act of commissioning, by which a ship is invested with the character of a public ship of war, is, for that purpose, valid and conclusive, notwithstanding that the ship may have been at the time registered in a foreign country as a ship of that country, or may have been liable to process at the suit of a private claimant or to arrest or forfeiture under the law of a foreign state. The commissioning power, by commissioning her, incorporates her into its naval force; and by the same act which withdraws her from the operation of ordinary legal process assumes the responsibility for all existing claims which could otherwise have been enforced against her.

[19] * The principle on which these rules repose is thus explained by Ortolan:

S’il s’agitde navires de guerre, la coutume internationale est constante: ces navires restent régis uniquement par la souveraineté de leurs pays; les lois, les autorités, et les jnridictions de l’état dans les eaux duquel ils sont mouillés leur restent étrangères; ils n’ont avec cet état que des relations internationales par la voie des fouctionuaires de la localité compétenrs pour de pareilles relations.

Cette coutume est-elle fondée en raison? Peut-elle être défendue même au point de vue théorique? Ou bien méite-t-elle le blâsne que quelques esprits paraissent vouloir jeter sur elle, ou les restrictions que d’autres s’efforcent d’y apporter?

[Page 226]

Le navire de guerre portaut en son sein une partie de la puissance publique de l’état auquel il appartient, un corps organisé de fonctionnaires et d’agents de cette puissance dans l’ordre administratif et dans l’ordre militaire, soumettre ce navire et le corps organisé qu’il porte aux lois et aux autorités du pays dans les eaux duquel il entre, ce serait vraiment soumettre l’une de ces puissances à l’autre; ce serai t vouloir rendre impossibles les relations maritimes d’une nation à l’autre par bâtiments de l’état. II taut ou renoncer à ces relations ou les admettre avec les conditions indispensables pour maintenir à chaque êtat souverain son indépendance.

L’état propriétaire du port ou de la rade peut, sans doute, à l’égard des bâtiments de guerre pour lesquels il aurait des motifs de sortir des règies ordinaires et pacifiques du droit des gens, leur interdire l’entrée de ses eaux, les y surveiller s’il croit leur présence dangereuse, ou leur enjoindre d’en sortir, de même qu’il est libre, quand ils sont dans la mer territoriale, d’employer à leur égard les moyens de sûreté que leur voisinage peut rendre nécessaires, sauf à répondre, envers l’état auquel ces vaisseaux appartiennent, de toutes ces mesures qui pourront être, suivant les événements qui les auront motivées ou la manière dont elles auront êté exécutées, des actes de défense ou de précaution légitime, on des actés de méfiance, ou des offenses graves, ou même des causes de guerre; mais tant qu’il les reçoit, il doit respecter en eux la souveraineté étrangère dont ils sont une émanation; il ne peut avoir, par conséquent, la prétention de régir les personnes qui se trouvent et les faits qui se passent à leur bord, ni de faire sur ce bord acte de puissance et de souveraineté.

C’est ainsi que le conflit se trouve sagement réglé et que l’indépendauce de cbaqu e état souverain est maintenue.

Les conséquences de cette pratique, que M. Pinheiro-Ferreira relève comme les plus dénuées de raison, savoir, celles relatives à l’asile que les malfaiteurs du pays trouveraient â bord, appartiennent à une matière qui revieudra plus loin, et dont nous traiterons en détail. Mais nous pouvons, dés à présent, faire observer que jamais le commandant d’un navire de guerre n’appliquera le bénéfice de l’exterritorialité de son navire en faveur des malfaiteurs du pays, pas plus que l’ambassadeur l’exterritorialité de son hôtel et de ses équipages; et que, dans le cas où certains criminels seraient parvenus à se réfugier à son bord, il existe des regies internationales relativement à leur expulsion du navire ou à leur extradition.

En un mot, l’inviolabilité qui est due en tous lieux aux navires de guerre comme à une forteresse flottante de l’état qui les a armés, reufermant un corps organisé de la puissance publique de cet état, cette inviolabilité n’entraîne pas l’irrésponsabilité des officiers qui commandent ces navires. Mais tous les actes qui s’y réfèrent, soit de la part de l’état dans les eaux duquel sont mouiliés les navires à l’égard de ces navires, soit réciproquement, tous ces actes sont actes de relations internationales, et les consèquences ou réparations, s’il y a lieu, doivent en être poursuivies par voie diplomatique.

Cette inviolabilité ne diminue en rien, du reste, le droit qu’a toute nation, si le navire de guerre vient à commettre contre elle des actes d’aggression, d’hostilité, ou de violence quelconques, de prendre immédiatement toutes les mesures et d’employer tous les moyens nécessaires à une légitime defense.

Elle n’empêche pas non plus que les navires de guerre soient soumis à l’observation des règlements sanitaires du pays ou ils veulent aborder. Les épreuves imposés par ces règlements sont des conditions mises à l’admission des navires dans les eaux de ce pays; elles ne sont nnllement en contradiction avec le droit d’exterritorialité dont jouissent les bâtiments de guerre entrés dans ces eaux.

Il résulte de tout ce qui précède que, loin de désapprouver, au point de vue de la pure raison, la coutume du droit international positif à l’égard des navires de guerre, il faut tenir cette coutume pour bonne et pour digne d’être maintenue en théorie comme en pratique.1

[20] The principle laid down in the preceding extract is clear, and the consequences which flow from it are equally clear. A vessel commissioned as a public ship of war, entering a foreign port, is a portion of the naval force of the government by which she is commissioned, commanded by its officers, and displaying the ensigns of its authority. Any act of force directed against her (unless to prevent or repel aggression, or compel her to depart after having been required to do so by competent authority) would be directed against her government, and would at the same time, if done without previous warning, be an infraction of a recognized understanding, on the faith of which she entered, and on the observance of which she had a right to rely. If, while in neutral waters, she commits any violation of neutrality or other offense against the neutral, force may undoubtedly be employed in any way [Page 227] which may be necessary in order to prevent or arrest the unlawful act and to compel her departure. But redress ought not to be sought against the ship herself; it should be sought, if needful, against her government. A fortiori, this is true if the offense were committed before she arrived at the neutral port. Thus, of the violations of neutrality committed during the war, the grossest and most flagrant by far was that *perpetrated by the Wachusett in the harbor of Bahia. The Brazilian authorities would have been amply justified in firing on that vessel while engaged in the act, and sinking her if necessary. If she had afterward presented herself in a Brazilian port, they would, doubtless, have refused her admission; but they would have rightly abstained, even on such provocation, from seizing and detaining her. A multo fortiori, the same proposition holds good if the act complained of were done before the offending ship came into the possession of the commissioning government, or before she was incorporated into its naval service.

These principles are recognized by publicists and sanctioned by usage. There is not a maritime power in the world which would not resent any violation of them; and it would be the duty of any naval officer to resist such a violation, unless it were supported by manifestly superior force. They do not extend to prizes brought into neutral ports by the belligerent vessel, if captured within the waters of the neutral, or by a vessel unlawfully armed within her jurisdiction and during the cruise immediately following such armament. These the neutral may restore, and it may be his duty to do so, on the application of the original owners or their government.

As to the nature of the proof which may be required that a vessel claiming the character of a public ship of war is really such, M. Ortolan observes:

Les preuves de la nationalité et du caractère d’un bâtiment de guerre sont dans le pavilion et dans la flamme qu’il fait battre à sa corne et au haut de ses mâts; dans l’attestation de son commandant, donnée, au besoin, sur sa parole d’honneur; dans la commission de ce commandant, et dans les ordres qu’il a reçus de son souverain.

Le pavilion et la flamme sont indices visibles; mais, dans certains cas, on n’est tenu d’y ajouter foi que lorsqu’ils ont été appuyés d’un coup de canon. L’attestation du commandant peut être exigible: les autres preuves doivent se présumer; et soit en pleine mer soit ailleurs, aucune puissance étrangère n’a le droit d’en obtenir l’exhibition.

He refers also to the answer returned by the government of the Netherlands to that of the United States respecting the reception of the Sumter at Curaçoa, and to the opinion pronounced, in 1782, by the government of Russia in the matter of the Danish corvette St. John, seized in Spanish waters, notwithstanding the display of her pendant and the declaration of her commanding officer:

La Russie fut plus explicite. Elle jugea dans sa résponse:

  • “1. Qu’il est conforme auxprincipes du droit des gens qu’un bâtiment autorisé, selon les usages de la cour ou de la nation à laquelle il appartient, à porter pavilion militaire, doit être envisagé dès lors comme un bâtiment armé en guerre.
  • “2. Que ni la forme de ce bâtiment, ni sa destination antérieure, ni le nombre d’individus qui en composent l’équipage, ne peuvent plus altérer en lni cette qualité inhérente, pourvu que l’officier commandant soit de marine militaire.”

Il n’existe, que nous sachions, aucun traité, ni aucun acte public dans lesquels ce principe proclamé par la Russie ait été sanctionné depuis; mais il l’est incontestable ment par la coutume générale.1

The established practice of maritime nations, including the United [Page 228] States and Great Britain, accords with the foregoing statements of Ortolan.1

[21] argument of the united states.— “what is due diligence?”

What is due diligence? Passing from the question, what classes of acts a neutral power is bound to use due diligence to prevent, to the further question, what is due diligence, Her Majesty’s government finds that “these words are not regarded by the United States as changing, in any respect, the obligations of a neutral regarding the matters referred to in the rules, as those obligations were imposed by the principles of international law existing before the conclusion of the Treaty.”2 Her Majesty’s government concurs with that of the United States in holding that the words “due diligence” introduced no new or additional obligation. They exact from the neutral, in the discharge of the duties imposed on him, that measure of care, and no other, which is required by the ordinary principles of international jurisprudence, and the absence of which constitutes negligence.

Her Majesty’s government will not follow the Government of the United States through the observations which it has presented to the arbitrators on the nature and degrees of negligence, but will notice only the definition which, at the close of those observations, it has attempted to supply:

The United States understand that the diligence which is called for by the rules of the Treaty of Washington is a due diligence; that is, a diligence proportioned to the magnitude of the subject, and to the dignity and strength of the power which is to exercise it; a diligence which shall, by the Use of active vigilance, and of all the other means in the power of the neutral, through all stages of the transaction, prevent its soil from being violated; a diligence that shall in like manner deter designing men from committing acts of war upon the soil of the neutral against its will, and thus possibly dragging it into a war which it would avoid; a diligence which prompts the [Page 229] neutral to the most energetic measures to discover any purpose of doing the acts forbidden by its good faith as a neutral, and imposes upon it the obligation, when it receives the knowledge of an intention to commit such acts, to use all the means in its power to prevent it.1

[22] Her Majesty’s government has been unable to collect from this definition the information which it is doubtless intended to convey. It may readily be conceded that the care exerted by a government to prevent violations of its neutrality should bear some proportion to the probable consequences of such offenses. It may be conceded also that the responsibility incurred by failing to prevent an offense must materially depend on the power which the government possessed of preventing it. So far as this, the British government concurs with the Government of the United States. But Her Majesty’s government cannot admit that the measure of diligence due from neutral powers ought to be proportioned in any way to their relative degrees of dignity; it knows of no distinction between more dignified and less dignified powers; it regards all sovereign states as enjoying equal rights and equally subject to all ordinary international obligations; and it is firmly persuaded that there is no state in Europe or America which would be willing to claim or accept any immunity in this respect on the ground of its inferiority to others in extent, military force, or population. In truth, the arbitrators will have clearly perceived, from this statement already presented to them on the part of Great Britain, that in a country which, with free institutions, possesses a large commercial marine and a very extensive ship-building trade, the difficulty of preventing enterprises of this nature is, instead of being less, far greater than in countries which are not so populous and where these conditions are not united; and just allowance ought to be made for this difficulty. The assertion that due diligence means a diligence which shall prevent the acts in question, and shall deter men from committing them, if taken literally, can only signify that no government can be held to have done its duty which has not been completely successful. Of all the powers in the world, such a test would most severely condemn the Government of the United States. If not taken literally, it can contribute nothing to a serious discussion. It has been shown, by ample evidence, in the case presented on the part of Great Britain, that the measures adopted by the British government did prevent and deter men from enterprises which would have violated or imperiled her neutrality; all that the United States have to complain of is, that these measures proved ineffectual to prevent or deter, in a very small number of cases, in which the agents contrived to escape observation, *or the difficulty of obtaining evidence-was great. That due diligence requires a government to use all the means in its power, is a proposition true in one sense, false in another: true, if it means that the government is bound to exert honestly and with reasonable care and activity the means at its disposal; false, impracticable, and absurd, if it means that a liability arises whenever it is possible to show that an hour has been lost which might have been gained, or an accidental delay incurred which might, by the utmost foresight, have been prevented; that an expedient which might have succeeded has not been tried; that means of obtaining information which are deemed unworthy or improper have not been resorted to; or that the exertions of an officer or servant of government have not been taxed to the utmost limit of his physical capacity.

Nor can we fail to observe that, in proportion as we extend the duty of prevention incumbent on neutral governments, from hostile enterprises which are open and flagrant to acts of a more doubtful character which [Page 230] border on the line betwixt the lawful and the unlawful, it becomes more and more difficult to exact from the neutral, in the performance of that duty, peculiar and extraordinary vigilance and activity. The duty of preventing the open assembling within neutral territory of an armed hostile expedition against a neighboring country is plain and obvious, and requires only a prompt exercise of adequate force. But it is otherwise when we come to acts of a different class, the criminality of which depends on a latent intention; such, for example, as the mere procuring for belligerent purposes from the yards of a neutral ship-builder, whose ordinary business it is to build ships of all kinds for customers of all nations, a vessel with some special adaptation for war. There is nothing in the relation of a neutral to a belligerent to cast on the former the duty of exercising, within his own territory, a constant and minute espionage over ordinary transactions of commerce for the protection of the latter. This relation, always onerous to the neutral, is, at the same time, it must be remembered, purely involuntary on his part. It is forced on him by the quarrels of his neighbors, in which he has no concern, or by their internal discords, when those discords break out into civil war.

Her Majesty’s government has not attempted a task which has baffled, as it believes, the ingenuity of jurists of all times and countries— that of defining with any approach to precision, apart from the circumstances of any particular case, what shall be deemed due diligence or reasonable care. In its Case, already presented to the Tribunal, it has stated some general propositions, which it believes to be consonant with justice, and supported by such analogies as may be fairly drawn from the private law of Europe and America.1 It leaves it, however, to the arbitrators, who know what are the ordinary powers of governments, what the difficulties they labor under, and what may reasonably and wisely be expected from them, to determine, upon a careful consideration of the facts, and on the same principles by which the States to which they themselves belong would be willing to be judged, whether on the part of Great Britain there has or has not been that want of due care or diligence which makes reparation a duty.2

On the question, in what cases and within what limits compensation in money may reasonably be deemed due from a neutral nation for injuries occasioned by such a want of care, Her Majesty’s government will here only say, that the position of Great Britain appears to be misapprehended by the United States, and that the two decisions of an American court cited in the case have no bearing upon it.3 Such a question, it is evident, is not within the cognizance of any municipal tribunal, however respectable; and no municipal tribunal has attempted to pronounce judgment on it. The Supreme Court of the United States, in the cases cited, decided only that of two armed vessels one had been unlawfully fitted out, while the other had received an unlawful augmentation of force, within the jurisdiction of the United States, and that prizes taken by each and brought within the jurisdiction of the United States ought to be restored.

[23] The arbitrators will now be in a situation to judge what value to attribute to the assertion, “that the principles for which the United States [Page 231] contend have been recognized by the statesmen, the jurists, the publicists, and the legislators of Great Britain; that they have the approbation of the most eminent authorities upon the continent of Europe; and that they have been regarded by the other powers of Europe in their dealing with each other,”1 The truth is, that the alleged principles from which Her Majesty’s govern*ment has declared its dissent were never before seriously asserted, and never admitted or recognized by any power in Europe or America; that they have the support of no publicist of authority; that they are unknown in Great Britain; and were, up to the time when these claims were brought forward, equally unknown in the United States.2

  1. Case of the United States, pp. 210 et seq.
  2. See the argument of the counsel for the defendants in the Alexandria case, (Appendix to the Case of the United States, vol. v, pp. 183. el seq.)
  3. A construction contrary to that which the United States contend for against Great Britain has been placed by the Government of the United States on its own law. In 1841 the then Attorney-General was called upon to advise whether the building in the United States of vessels of war for the government of Mexico, to be employed against Texas, was prohibited by the act of 1818. Mr. Legare advised (whether rightly or wrongly is not material) that it was so, on the following grounds: “The reasoning on this subject is shortly this: the policy of this country is, and ever has been, perfect neutrality and non-interference in the quarrels of others; but by the law of nations that neutrality may, in the matter of furnishing military supplies, be preserved by the two opposite systems, viz, either by furnishing both parties with perfect impartiality or by furnishing neither. For the former branch of the alternative it is superfluous to cite the language of publicists, which is express, and is doubtless familiar to you. If you sell a ship of war to one of the belligerents, the other has no right to complain, so long as you offer him the same facility. The law of nations allows him, it is true, to confiscate the vessel as contraband of war, if he take her on the high seas: but he has no ground of quarrel with you for furnishing or attempting to furnish it. But, with a full knowledge of this undoubted right of neutrals, this country has seen fit, with regard to ships of tear, to adopt the other branch of the alternative—less profitable with a view to commerce, but more favorable to the preservation of a state of really pacific feeling within her borders: she has forbidden all furnishing of them under severe penalties. The memorable act of 1794 consecrated this policy at an early period of our Federal history, and that act was only repealed in 1818 to give place to an equally decided expression of the legislative will to the same effect. Whatever may be thought of the spirit and policy of the law, its scope and objects are too clear to be misunderstood; and I am of opinion that the case stated by Mr. Curtis falls fully within the purview of the third section.”

    Mr. Legaré afterward wrote a further opinion to the same effect, holding that “all trading with a belligerent in ships of war, ready equipped for service, was contrary to the law of the United States.” “The accompanying prohibition in the statute of all enlistments in the United States furnishes a strong ground to support this opinion. Such enlistments (if voluntary) are no more against the law of nations than equipping and furnishing ships; yet it will not be pretended that any attempt to enlist an American citizen within our borders, however covert and cautious, and wherever the service is to be rendered, or the first step toward it taken, is not utterly prohibited by the act. However popular opinion may have recently changed on so important a subject, this act, like that of 1794, was intended to secure, beyond all risk of violation, the neutral and pacific policy which they consecrate as our fundamental law. The framers of both acts knew perfectly well that they were denying to our citizens rights which the law of nations allowed them to exercise in good faith for commercial purposes. They knew the price they were paying for peace, but they were willing to pay it. This act is a proof of it.”— (Opinions of Attorneys-General of the United States, vol. iii, pp. 738, 741; Appendix to British Case, vol. v, pp. 360, 363.)

  4. Case of the United States, p. 108.
  5. Ibid., p. 176.
  6. See Report of the Commission, p. 5; Appendix to British Case, vol. iii, Appendix to Case of the United States, vol. iv, p. 82.
  7. At page 117 of the Case, the judge of the high court of admiralty (Sir R. J. Phillimore) is cited as having stated (very justly) that the act of 9th August, 1870, has the effect of enabling the British government to fulfill more easily than heretofore that particular class of international obligations which may arise out of the conduct of Her Majesty’s subjects toward belligerent foreign states with which Her Majesty is at peace. No doubt it has. This quotation is as irrelevant as those introduced at pp. 118–122, in order to prove that the law of nations has been regarded as forming part of the common law of England, a proposition sometimes stated too largely, but which, correctly understood, has been denied by no one, and in no way assists the argument of the United States.
  8. Case of United States, pp. 109, 110, 118, 125, 210, 212.
  9. The general definition of “culpa” or “faute” applies to international injuries, as well as to injuries inflicted and sustained by individuals. “Le débiteur est en faute soit qu’il coutrevient à l’obligation de ne pas fatre, soit quand il n’exécute pas obligation de faire, soit quand il n’a pas apporté dans l’exécution ou dans l’accomplissement de cette obligation tous les soins auxquels il était tenu.”—Le Droit civil francais, par Zachariw, annoté par G. Massé et Ch. Vergé, sec. 548.
  10. Some citations bearing on this question are collected in an annex (A) at the end of this counter case.
  11. These propositions are so familiar that they do not need to be supported by the citation of authorities. The subjoined extracts from some of the most recent writers of note may, however, serve to illustrate them:

    “Les régles relatives à l’accès et au séjour momentaué des bâtiments dans les ports et dans les rades strangers restent les mêmes en temps de paix qu’en temps de guerre. Sauf les limitations consenties par traité, les ports, les rades, et les mers territoriales neutres sontuu asile ouvertaux bâtiments de guerre des belligérants, surtout lorsqu’ils s’y présentent en nombre limité; ils y sont admis à s’y procurer les vivres nécessaires et à y faire les réparations indispensables pour reprendre la mer et se livrer de nouveau aux opérations de guerre, sans que l’état neutre viole par là les devoirs de la neutralité comme il les violerait, au contraire, s’il accordait un traitement semblable à des troupes de terre belligérantes qui viendraient chercher un refuge sur son territoire; en pareil cas celles-ci doivent être désarmées et éloignées du théâtre de la guerre. Cette différence de traitement est attributée, communément, par les publicistes, ainsi que l’énonce encore un auteur allemand moderne, anx conséquences de l’immnuité du pavilion et au principle que les navires de guerre sout une portion du territoire de la nation à laquelle ils appartiennent. Nous aimons mieux en chercher les véritables motifs dans les conditions si différentes de l’existence maritime et dans les nécessités indispensables de la navigation et de la vie des hommes sur uu élément aussi terrible parfois que la mer.”—Ortolan: Règles internationales et diplomatic de la mer, (4th edition, vol. ii, p. 286.)

    “Sous la reserve de ces diverses circonstances, l’asile que les navires et les corsaires réguliers des puissances belligérantes sont admis à recevoir dans les portes neutres s’applique aussi à ceux de ces navires qui arrivent avec des prises. Un état neutre n’ayant pas le droit de s’ingérer dans les résultats des actes exercés par un belligérant en conformité de lois de la guerre, du moment que le capteur a hisseé le pavilion de l’état auquel il appartient à bord de la prise qu’il a faite, cette prise doit être considéréé, provisoirement du moins, comme propriété de cet état ou des sujets; et à ce titre on est fondé à réclamer pour elle l’hospitalité dans les ports amis.

    “Cependant il ne faut pas perdre de vue que chaque état, ayant la propriété et la police de ses ports, est libre, en principe, d’en ouvrir et d’en fermer l’entrée, selon qu’il le juge convenable aux intérêts ou à la tranquillité du pays, et que les belligérants ne peuveut, par conséquent, en réclamer l’entrée, pour leurs navires, ni pour les prises qu’ils ont faites, comme uu droit qui leur appartieudrait.”—Ibid., vol. ii, p. 303.

    “Le droit d’asile maritime diffère essentiellement de celui que les neutres peuvent exercer en faveur des belligérants sur le territoire continental. Dans les guerres terrestres lorsqu’une armée, fuyant devant son ennemi, vient se refugier sur un territoire neutre elle y est reçue, il est vrai; elle y trouve tous les seconrs d’humanité. Mais l’armée est dissoute, les hommes qui la composent sont désarmés et éloignés du théâtre de la guerre; en un mot, on remplit les devoirs d’humanite à l’égard des individus, mais on n’accorde pas l’asile à l’armée pris comme corps. Le neutre qui, au lieu d’agir ainsi que je viens. de le dire, accueillerait les troupes ennemies, leur fournirait des vivres, leur donnerait le temps de se remettre de leurs fatigues, de soigner leurs malades et leurs blessés, et leur permettrait ensuite de retourner sur le théâtre des opérations militaires, ne seraitpas considéré comme neutre; ilmanquerait à tous les devoirs de son état. L’asile maritime, au contraire, consiste à recevoir dans les rades fermées, même dans les ports, les bâtiments des belligérants; que leur entrée soit volontaire ou nécessitée par la tempête, par le manque de vivres ou par toute autre cause; même par la poursuite de l’ennemi. Les vaisseaux admis peuvent acheter les vivres qui leur sont nécessaires, réparer les avaries faites, soit par les accidents de mer, soit par le combat, soigner leurs malades ou leurs blessés, puis sortir librement pour alter livrer de nouveaux combats. Ils ne sont pas, par conséquent, soumis au desarmement, comme les troupes de terre.

    “Galiani et Azuui attribuent cette différence à celle qui existe entre la terre et la mer, entre les dangers qui menacent le marin et ceux auxquels est exposé le soldat. Ce dernier ne pent craindre que la défaite et d’être pris par son ennemi, tandis que le premier pent souvent être exposé à périr sur les mers par la famine, à être englouti sons les flots, &c. Cette cause de difference peut être vraie, mais elle ne suffit pas pour motiver celle qui existe. En effet, si elle était unique, elle ne justifierait nullemeut l’absence de désarmement, surtout lorsqu’un bâtiment vient se jeter dans le port neutre pour êchapper à la ponrsuite de l’ennemi, lorsqu’il vient y chercher un refuge contre une défaite, contre une prise inévitable. Il est vrai que Galiani propose de soumettre les vaisseanx qui profitent de l’asile au désarmemént. Mail il reconnatt que cette règle n’est pas admise par les nations, qu’elle est complétement nouvelle, et que le petit nombre d’exemples, que l’on pourrait citer, de bâtiments contraints à désarmer pour pouvoir être admis à jouir de l’asile du port neutre, s’applique à des armateurs dont la conduite seule motivait cette exigence extraordinaire.

    “Azuni va beaucoup plus loin: il vent que toute bâtiment qui entre dans un port neutre, pour se soustraire à la poursuite de l’ennemi, soit tenu non-seulement de désarmer immédiatement, s’il est armé en guerre, mais encore de ne plus naviguer pendant toutle temps de la guerre. Et, d’après la maniere absolue dont il s’exprime, il est évident qu’il applique cette règie mdme aux navires du commerce.

    “Il y a done a cette différence immense une autre cause qu’il est utile de rechercher. Je crois qu’elle est tout entiere dans la qualité reconnu du bâtiment. Il est une partie du territoire de son pays; pour tout ce qui concerne son gouvernement intérieur, il est exclusivemeut placé sous la juridiction de son souverain. Or, il est évident qu’ordonner le désarmement, e’est s’immiscer dans le gouvernement intérieur du vaisseau, e’est faire un acte de juridiction sur le vaisseau; le prince neutre n’a pas le droit de le faire. Il peut refuser l’asile; il peut l’accorder seulement sous certaines conditions, avec des restrictions. S’il veut remplir les devoirs d’humauité, arracher le bâtiment aux périls qui peuvent le menacer, il le recoit dans ses ports, il lui accorde les secours nécessaires pour le mettre en état de reprendre la mer. Tel est, à mon avis, le seul motif de la differénce dont je viens de parler.”—Hautefeuille: Droits et devoirs des nations neutres, vol. i, p. 347.

    “Tambien es costumbre permitir en ellos (puertos neutrales) á los buques armados, piiblicos y particulares, proveerse de viveres y otros articulos inocentes. Es licito á los beligerantes llevar sus presas á puerto neutral y venderlas én él, si no se lo prohibe el soberano del territorio, á quién es libre conceder este permiso ó rehursarle, observando con arabos beligerantes una conducta igual.”—Pando: Mementos del derecho international, § 192.

    Even the prohibition of the purchase of arms and munitions of war by a belligerent vessel in a neutral port has been questioned by Heffter. “Es wäre indessen hart” he says, “einen Krieger wehrlos seinen Feinden Preis zu geben, auch ist Verkauff iui eigenen Lande den Neutralen iiberhaupt nicht verboten.”—Das europäische Völkerrecht, p. 1st, note 2, (5th edition.)

  12. Case of the United States, p. 167.
  13. Case of the United States, pp. 148, 149. See also p. 162, and the President’s message to Congress, December 4, 1871. “The contracting parties in the treaty have undertaken to regard as between themselves certain principles of public law, for which the United States have contended from the commencement of their history. They have also agreed to bring those principles to the knowledge of the other maritime powers, and to invite them to accede to them.”
  14. A distinction has sometimes been drawn between such hospitalities as humanity requires to be granted to all belligerent vessels and such as the neutral may concede or refuse at discretion. (See the opinion of Mr. dishing, then Attorney-General of the United States, on the case of the Sitka, Appendix to British Case, vol. v, p. 366.) “Whether or not,” says Mr. dishing, “a neutral nation has the right to refuse absolutely the admission of any belligerent ship into her ports, is an abstract question, which it is unnecessary to discuss here. It suffices to say that the general duties of humanity require that the belligerent be allowed to enter for the purpose of escaping from the danger of the seas, or purchasing provisions and making repairs indispensable to the continuance of the voyage. Everything accorded beyond this must be regarded as an act of international Sociability or comity, not of humanity or obligation. * * * In the present state of the law of nations, it is universally conceded that the armed ships of a belligerent, whether men-of-war or private armed cruisers, are to be admitted, with their prizes, into the territorial waters of a neutral for refuge, whether from chase or from the perils of the sea. This is a question of mere temporary asylum, accorded in obedience to the dictates of humanity and to be regulated by the specific exigency.

    “Going beyond this, we find that the ships of war of a belligerent are generally admitted into the ports of the neutral, even when there is no. exigency of humanity, but still under certain reservations. The neutral nation has a perfect right so to measure the extent of the asylum thus accorded as to cover its own safety and retain the means of enforcing respect for its own sovereignty. Thus, in Europe, it generally happens that war is commenced between two or three of the great powers for purposes of mutual jealousy or ambition of their own, and as to which the other states are comparatively indifferent in feeling or interest, or have conflicting interests, which impel them to remain neutral in the war. But, very soon, as the burden of the war presses on one or another of the belligerents, he, having undertaken more than he can accomplish alone, seeks to persuade or compel the neutral state to join him. Or he cannot efficiently attack his enemy without occupying the territory of some neutral state. Or, perceiving that his own commercial resources are wasting away in the war, he looks resentfully on the prosperity of some neutral state, whose commerce flourishes at his expense. Or, jealous of the intentions of a neutral state, and fearing it may join his enemy, he seeks to anticipate such an event by crippling the military forces of such neutral state. Or, finally, becoming fatally engaged in a protracted war, until it has at length degenerated into a mere willful contest of pride and passion, the belligerent enters upon the desperate and frantic plan of starving his adversary by cutting off all the neutral commerce, the very attempt to do which is an outrage on the law of nations, and can be carried out only by the perpetration of every kind of violence and fraud on the neutral nations.” He proceeds to observe that “it is not material whether such regulations operate to the benefit of one or the other belligerent power.” The argument of the United States now is, that any hospitalities afforded to belligerent vessels in neutral ports, beyond those which Mr. Cushing described in 1855 as commanded by the dictates of humanity, and obligatory on all neutral powers, are violations of neutral duty.

  15. Case of the United States, p. 163.
  16. Ibid., p. 162.
  17. British Case, pp. 4, 23, 24.
  18. Règles internationales et diplomatic de la mer (4th edition,) vol. i, p. 190.
  19. Règles internationales et diplomatie de la mer, (4th edition,) vol. i, pp. 181, 185.
  20. The general immunity of public ships of war from any foreign jurisdiction, civil or criminal, is thus stated in a work of acknowledged authority, (Kent’s Commentaries oh American Law, vol. i, p. 155:) “This right of search is confined to private merchant-vessels, and does not apply to public ships of war. Their immunity from the exercise of any civil or criminal jurisdiction but that of the sovereign power to which they belong is uniformly asserted, claimed, and conceded. A contrary doctrine is not to be found in any jurist or writer on the law of nations, or admitted in any treaty, and every act to the contrary has been promptly met and condemned.” So Wheaton, Elements of International Law, p. 151, ed. 1836: “If there be no express prohibition, the ports of a friendly state are considered as open to the public armed and commissioned ships belonging to another nation with whom that state is at peace. Such ships are exempt from the jurisdiction of the local tribunals and authorities, whether they enter the ports under the license implied from the absence of any prohibition, or under an express permission stipulated by treaty.” The principle of the rule was laid down by Chief Justice Marshall, delivering the judgment of the Supreme Court of the United States, in the case of the Exchange, a vessel belonging to au American citizen, which had been seized in a Spanish port by the French government and converted into a public ship of war, and which her original owner afterward attempted to reclaim on her arrival at Philadelphia. After observing that private persons entering a foreign country are not exempt from the local jurisdiction, the Chief Justice proceeded: “But the situation of a public ship is in many respects different. She constitutes a part of the military force of her nation, acts under the immediate and direct command of her sovereign, is employed by him in national objects. He has many and powerful motives for preventing those objects from being defeated by the interference of a foreign state. Such interference cannot take place without seriously affecting his power and dignity. The implied license, therefore, under which such vessel enters a friendly port may reasonably be construed, and, it seems to the court, ought to be construed, as containing an exemption from the jurisdiction of the sovereign within whose territory she claims the rites of hospitality.” (Cranch’s Reports, vol. vii, p. 135.) The rule was also affirmed by Mr. Justice Story, one of the greatest jurists who ever adorned the United States, in the case of the Santissima Trinidad. It is assumed in Mr. Cushing’s opinion referred to above, (p. 16,) in the case of the Sitka.
  21. Case of the United States, p. 21.
  22. Case of the United States, p. 158.
  23. Case of Great Britain, p. 24, propositions 9, 10, 11; and pp. 166, 167.
  24. “Du reste,” says a distinguished French jurist, treating of this subject in connection with private law, “du reste, soit qu’il s’agisse d’une obligation de donner ou de faire, la protestation des fautes est, dans la pratique, à peine une question de droit. Le point de fait y est toujours dominant, quand il n’y est pas tout.’’—Larombière, Théorie it pratique des obligations, vol. i, p. 417.
  25. The Santissima Trinidad and the Gran Para. Case of the United States, p. 208.
  26. Case of the United States, p. 202.
  27. The following extract from Reddie’s “Researches in Maritime and International Law,” (vol. ii, p. 210,) is apposite to the general question how far neutral governments are bound to interfere actively for the purpose of restraining their subjects from acts falling within the prohibitions of international law. It is an abstract of the views expressed in the “Considérations sur les Droits Réciproques des Puissances Belligérantes et des Puissances Neutres sur Mer,” of Tetens, a work which Mr. Reddie describes as “the most free from national bias, and most impartial exposition of the general principles of maritime international law which has appeared in recent times:”

    “It is a wise foresight for neutral governments to obviate, during war, as far as possible, all illegal conduct on the part of their subjects, for the double advantage of preserving them from risks, and of preventing the suspicions of belligerents against the traders who sail under neutral flags. The conduct exhibited by several individuals in a neutral nation produces naturally a presumption for or against their fellow-countrymen, which seldom fails to have consequences favorable or unfavorable to the vessels of that nation which the belligerents encounter. There is also a political reason for neutral governments watching their subjects in this respect. They cannot, indeed, manifest more authentically their perfect neutrality than by clear and precise ordinances for their commerce and navigation during war, and by a rigorous police, severely directed against those who contravene them. The more they exert themselves to re- “strain fraud, the more they are in a state to protect their loyal subjects, and to inter pose with success in the cases of just claims made by the latter against the cruisers of the belligerent powers.

    “What neutrals, however, may do in this respect does not arise from any right which imposes on them the obligation of maintaining a more special surveillance over their subjects during war than they are in the habit of doing during peace; nor to exercise a more extensive inspection over the legality of their conduct toward belligerents than that which is prescribed by law. In even allowing them to act entirely as they choose, they in no manner infringe the rights of the belligerents, provided they do not pretend otherwise to protect their contraventions. But such indifference may inspire belligerents with unfavorable opinions, which it may be as well to prevent, especially if it be preponderating powers who are at war.

    “From neutral governments not being under an obligation to obviate the abuses of their subjects, it follows that belligerents, whatever condescension they may have to expect from them for that purpose, cannot reasonably require them to extend their measures beyond what is in practice in these same neutral countries for preventing frauds being committed on their own customs, and for checking the other deceitful contrivances for evading payment of the revenues of the state. The maximum of precaution, in this case, is to maintain and enforce the observance of neutrality in vessels and cargoes with the same diligence and exactness as are exercised in inquiries and other proceedings relative to taxes, or imposts and customs. He who does as much to prevent a wrong meditated against another as he does for his own protection, satisfies every just and reasonable expectation on the part of that other. Perhaps, however, more might be done, if it were wished, completely to attain the object. In time of war special instructions might be ordered; tribunals of inquiry might be established against the frauds of merchants and ship-owners, and more rigor might be shown in the punishment of their delinquencies. But this cannot be demanded on the one side, and, on the other, it might be difficult to grant it, because there might result from it consequences inconsistent with the general spirit of the prohibitory laws of the state. At least, this care must be left to the neutral governments, to whom alone it belongs to judge what it may be proper for them to do with reference to the circumstances of the war.”