occasion of the rebellion which broke out in Canada in the preceding year, Congress passed another act on the suggestion of Great Britain. During the Crimean war the United States effectively discharged their neutral obligations. In these precedents the United States and Great Britain appeared, said the Case of the United States, to have assumed the following principles:

"1. That the belligerent may call upon the neutral to enforce its municipal proclamations as well as its municipal laws.

"2. That it is the duty of the neutral, when the fact of the intended violation of its sovereignty is disclosed, either through the agency of the representative of the belligerent or through the vigilance of the neutral, to use all the means in its power to prevent the violation.

"3. That when there is a failure to use all the means in the power of a neutral to prevent a breach of the neutrality of its soil or waters, there is an obligation on the part of the neutral to make compensation for the injury resulting therefrom."

The latest official act of Her Majesty's govThe Three Rules. ernment indicating the views of Great Britain as to the duties of a neutral in time of war was, said the Case of the United States, to be found in the three rules contained in Article VI. of the treaty of Washington. It was true that the British negotiators had thought it essential to insert a declaration on the part of their government that they could not consent to these rules as a statement of principles of international law which were in force at the time when the claims under discussion arose. But the United States were of opinion, not only that these rules were then in force, but that there were also other rules of international law then in force, not inconsistent with them, defining with still greater strictness the duties of a neutral in time of war.

The rules of the treaty, said the Case of the "Due Diligence." United States, imposed upon neutrals the obligation to use due diligence to prevent certain acts. These words were not regarded by the United States as changing in any respect the obligations imposed by international law. "The United States," said the Case,1 "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

Citing Vinnius, Comment. ad Inst. lib. 3, tit. 15; Ayliffe, Pandects, B. 2, tit. 13, pp. 108-110; Wood's Institutes, 106; Hallifax's Civil Law, 78; etc. etc.

and srengun 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 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. No diligence short of this would be 'due;' that is, commensurate with the emergency or with the magnitude of the results of negligence. Understanding the words in this sense, the United States finds them identical with the measure of duty which Great Britain had previously admitted."

The First Rule.

Under the first clause of the first rule, the Case of the United States maintained that the fitting out, or arming, or equipping, each constituted in itself a complete offense, while under the second clause it was made the duty of the neutral "to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war , such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use." The reason for this second clause, the language of which was much broader than that of the first clause, might, said the American Case, probably be found in the desire of the negotiators to avoid differences of interpretation in relation to the words "fitting out" and "equipping." In the United States it was held that the construction of a vessel in neutral territory in time of war which there was reasonable ground to believe might be used to carry on war against a power with which the neutral was at peace was an act which ought to be prevented, and that the constructing or building such a vessel was included in the offense of fitting it out. In the case of the Alexandra, however, in 1863, the British tribunals held that proof of the construction of a vessel for hostile use against the United States did not establish such an equipping, or fitting out, or furnishing as would bring the vessel within the act of 1819. The tribunal of arbitration might therefore, said the Case of the United States, infer that the framers of the

treaty intended to make it clear that it was "the duty of the neutral to prevent the departure from its ports of any vessel that had been specially adapted 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." And the duty to detain and prevent the departure of such a vessel was violated as often as she was permitted to enter and depart unmolested from one of the neutral's ports.

As to the second rule, the Case of the United The Second Rule. States said that it was not understood "to apply to the sale of military supplies or arms in the ordinary course of commerce," but "to the use of a neutral port by a belligerent for the renewal or augmentation of such military supplies or arms for the naval operations referred to in the rule." "The ports or waters of the neutral are not," continued the Case, "to be 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 operations. Ammunition and military stores for cruisers can not be obtained there; coal can not be stored there for successive supplies to the same vessel, nor can it be furnished or obtained in such supplies; prizes can not be brought there for condemnation. The repairs that humanity demands 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."

The Third Rule.

The Rules and International Law.

The third rule merely bound the neutral, said the Case of the United States, to use "due diligence" to prevent any violation of the obligations and duties prescribed by the first and second rules. It was maintained by the Case of the United States that the doctrines above set forth were in harmony with the views of the best publicists. Lord Westbury, who was lord high chancellor of England during the civil war in the United States, said in a debate in the House of Lords: "It was not a question whether armed ships had actually left our shores; but it was a question whether the ships with a view to war had been built in our ports by one of two belligerents. They need not have been armed; but if they had been laid down and built with a view to warlike operations by one of two belligerents, and this was knowingly permitted to be done by a neutral power, it was unquestionably a breach of neutrality." If, said the Case of the United States, it should be asserted that the construction, or the fitting out, or the arming, or the equipment of a vessel of war was to be regarded as falling within the category of dealings in articles ordinarily esteemed contraband of war, the United States might content themselves with a reference to the history of the legislation of both countries. Such a vessel was regarded as organized war, both by the practice of nations and by the publicists.3 The only respectable authority that had been cited even apparently to the contrary was an observation which Mr. Justice Story thrust into an opinion of the Supreme Court of the United States in the case of the Santissima Trinidad. It was clear, however, that he intended to confine his statement to the case of a vessel of war equipped and dispatched as a commercial venture, without previous arrangement or understanding with the belligerent and at the sole risk of the

1 Citing Hautefeuille, Des droits et des devoirs des nations neutres (Paris, 1849), II. 79–80; Bluntschli, Opinion impartiale sur la question de l'Alabama et sur la manière de la résoudre (reprinted at Berlin, 1870, from the Revue de Droit International); M. Rolin-Jacquemyn's review of Bernard's Neutrality of Great Britain, Revue de Droit International, 1871; Ortolan, Diplomatie de la mer, II. 208; Pierantoni, La Question Anglo-Americana dell' Alabama (Florence, 1870); Martens's Causes Célèbres, II. 229; De Cussy, Droit Maritime, II. 402.

2 March 7, 1868, Hansard, 3d series, CXCI. 346, 347.

3 Hansard, 1830, XXIII; Phillimore's Int. Law, I. 229; Ortolan, Diplomatie de la mer, II. 214; Heffter, Droit Int. (Bergson's ed.), 296.

47 Wheaton, 283.

owner.

On the very day after the case of the Santissima Trinidad was decided, Chief Justice Marshall, in a similar case of a vessel built in Baltimore, pronounced the opinion of the Supreme Court to the effect that the facts as to the vessel showed a violation of the laws of the United States in her original construction, equipment, and arming, and that, should the court decide. otherwise, the laws for the preservation of the neutrality of the country would be completely eluded.'

Commissions.

It had, said the Case of the United States, Effect of Belligerent been intimated in the course of the discussions upon the questions at issue, that the power of the British Government to interfere with, to arrest, or to detain either of the belligerent cruisers whose acts were complained of ceased when it was commissioned as a man of war, and that at the same time the liability of that government for their actions then ceased. The liability to make compensation could not, however, be escaped in such a "frivolous way." Few of the cruisers built and armed in Great Britain ever saw the line of the coast of the insurgent States. The Florida, indeed, entered the harbor of Mobile, but she passed the blockading squadron as a British man-of-war. In most cases the commissions went out from the branch office of the Confederate navy department established at Liverpool, from which the sailing orders of the vessels and the instructions to their commanders were issued. The comedy was played of completing on the high seas what had been carried to the verge of completion in England. The parallel was complete between the commissions in question and those issued by Genet in 1793, which were disregarded by the United States at the instance of Great Britain. The United States did not deny the force of the commission of a man-of-war issuing from a recognized power. But they confidently denied that the receipt of a commission by a vessel like the Alabama, the Florida, the Georgia, or the Shenandoah exempted Great Britain from the liability growing out of the violation of her neutrality.

The "Santissima
Trinidad."

In this relation the Case of the United States discussed to the cases of the Santissima Trinidad and the Gran Para.3 During the war between the United States and Great Britain of 1812 a privateer called the Monmouth was constructed at Baltimore and

The Gran Para, 7 Wheaton, 471.

27 Wheaton, 283.

3 Id. 471.