Expedi bined out side to Europe. The British Government interfered so thoroughly at the wrong time and in the wrong manner, that in curing a breach of its own neutrality it was drawn into violating the neutrality of Portugal. But on the main point, as to the character of the expedition, it was no less distinctly right than in its methods it was wrong. In On the other hand the uncombined elements of an expedition may leave a neutral state in company with one another, provided they are incapable of proximate combination into an organised whole. 1870, during the Franco-German war, nearly 1,200 Frenchmen embarked at New York in two French ships, the Lafayette and the Ville de Paris, for the purpose of joining the armies of their nation at home. They were not officered or in any way organised; but the vessels were laden with 96,000 rifles and 11,000,000 cartridges. Mr. Fish was of opinion that the ships could not be looked upon as intended to be used for hostile purposes against Germany; the men not being in an efficient state, and the arms and ammunition being in themselves subjects of legitimate commerce.2 There can be no doubt that the view taken by the Government of the United States was correct. It was impossible for the men and arms to be so combined on board ship, or soon after their arrival in France, as to be capable of offensive use. § 23. It has been proposed to stretch the liability tions com- of a neutral sovereign so as to make him responsible for the ultimate effect of two independent acts done within his jurisdiction, each in itself innocent, but intended by the persons doing them to form part of neutral territory from elements issuing separately from it. 1 Hansard. N.S. xxiii. 73881, and xxiv. 126-214. Phillimore, iii. § 159-60 gives the case at large. 2 Mr. Thornton to Lord Granville, Aug. 26, 1870. State Papers, 1871, lxxi. 128. a combination having for its object the fitting out of a warlike expedition at some point outside the neutral state. The argument upon which this proposal rests has been shortly stated as follows: 'The intent covers all cases, and furnishes the test. It must be immaterial where the combination is to take place, whether here or elsewhere, if the acts done in our territory-whether acts of building, fitting, arming, or of procuring materials for those acts-be done as part of a plan by which a vessel is to be sent out with intent that she shall be employed to cruise.'1 In accordance with this view, it was contended on the part of the United States before the Tribunal of Arbitration at Geneva that the Alabama and Georgia, two vessels in the Confederate service, were in effect 'armed within British jurisdiction.' The Alabama left Liverpool wholly unarmed on July 29, 1862, and received her guns and ammunition at Terceira, partly from a vessel which cleared a fortnight later from Liverpool for Nassau in the Bahamas, and partly from another vessel which started from London with a clearance for Demerara. In like manner the Georgia cleared from Glasgow for China, and received her armament off the French coast from a vessel which sailed from Newhaven in Sussex. The intent of acts, innocent separately, but rendered by this theory culpable when combined, can only by their nature be proved when the persons guilty of them are no longer within neutral jurisdiction. They cannot therefore be prevented by the state which is saddled with responsibility for them; and this responsibility must mean either that the 1 Dana's Wheaton, Note to § 489. Limits of neutral bility. neutral state will be held answerable in its own body for injury suffered by the belligerent, in which case it will make amends for acts over which it has had no control, or else that it is bound to exact reparation from the offending belligerent, at the inevitable risk of war. If this doctrine were a logical consequence of the accepted principles of international law it might be a question whether it would not be wise to refuse operation to it on the ground of undue oppressiveness to the neutral. But no such difficulty arises; for, as responsibility is the correlative of power, if a nation is to be responsible for innocent acts which become noxious by combination in a place outside its boundaries, it must be enabled to follow their authors to the place where the character of the acts becomes evident, and to exercise the functions of sovereignty there. But even on the high seas it is not permissible for a non-belligerent state to assume control over persons other than pirates or its own subjects; and within foreign territory it has no power of action whatever. The true theory is that the neutral sovereign has responsi- only to do with such overt acts as are performed within his own territory, and to them he can only apply the test of their immediate quality. If these are such in themselves as to violate neutrality or to raise a violent presumption of fraud, he steps in to prevent their consequences; but if they are presumably innocent, he is not justified in interfering with them. If a vessel in other respects perfectly ready for immediate warfare is about to sail with a crew insufficient for fighting purposes, the neutral sovereign may reasonably believe that it is intended secretly to fill up the complement just outside his waters. Any such completion involves a fraudulent use of his territory, and an expectation that it is intended gives him the right of taking precautions to prevent it. But no fraudulent use takes place when a belligerent in effect says:-I will not compromise your neutrality, I will make a voyage of a hundred miles in a helpless state, I will take my chance of meeting my enemy during that time, and I will organise my expedition when I am so far off that the use of your territory is no longer the condition of its being. of vessels § 24. It is somewhat difficult to determine under Equipment what obligations a neutral state lies with respect to of war in vessels of war and vessels capable of being used for neutral warlike purposes, equipped by or for a belligerent within its dominions. 1. Is the mere construction and fitting out, in such manner that they shall be capable of being used by him for warlike purposes, an international offence? or, 2. Is such construction to be looked upon as an act of legitimate trade; and is it necessary, to constitute an international offence, that some further act shall be done, so as to make such vessels elements in an expedition? territory. national is com mitted. The direct logical conclusions to be obtained from when, on the ground principles of neutrality go no further than general principles to prohibit the issue from neutral waters of a vessel of Interprovided with a belligerent commission, or belonging Law, to a belligerent and able to inflict damage on his enemy. breach of (1) A A commission is conclusive evidence as to the fact of neutrality hostile intent; and in order to satisfy the alternative condition it is not necessary that the ship shall be fully armed or fully manned. A vessel intended to mount four guns and to carry a crew of two hundred men would be to an unarmed vessel sufficiently formidable with a single gun and half its complement of seamen. But to possess any force at all, it must (2) An armed vessel is possess a modicum of armament, and it must have a crew sufficient at the same time to use that armament and to handle the ship. If then the vessel seems at the moment of leaving the neutral port to fulfil these conditions the neutral must, judging from the facts, infer a hostile intent, and prevent the departure of the expedition. On the other hand it is fully recognised that a vessel completely armed, and in every respect fitted merely con- the moment it receives its crew to act as a man of There is nowar, is a proper subject of commerce. traband of war. Effect of usage. thing to prevent its neutral possessor from selling it, and undertaking to deliver it to the belligerent either in the neutral port or in that of the purchaser, subject to the right of the other belligerent to seize it as contraband if he meets it on the high seas or within his enemy's waters. 'There is nothing,' says Mr. Justice Story, 'in the law of nations that forbids our citizens from sending armed vessels as well as munitions of war to foreign ports for sale. It is a commercial adventure which no nation is bound to prohibit.'1 If the neutral may sell his vessel when built, he may build it to order; and it must be permissible, as between the belligerent and the neutral state, to give the order which it is permissible to execute. It would appear therefore, arguing from general principles alone, that a vessel of war may be built, armed, and furnished with a minimum navigating crew, and that in this state, provided it has not received a commission, it may clear from a neutral harbour on a confessed voyage to a belligerent port, without any infraction of neutrality having been committed. § 25. The question remains; is there a special 1 La Santissima Trinidad, vii Wheaton, 340. |
