it was stated that the second rule was to be understood "as prohibiting the use of neutral ports or waters for the renewal or augmentation of military supplies only when those acts are done for the service of a vessel cruising or carrying on war, or intended to cruise or carry on war, against another belligerent; and not when military supplies or arms are exported for the use of a belligerent power from neutral ports or waters in the ordinary course of commerce." This clause, it will be observed, was couched in substantially the same terms as the resolution which had been proposed to the Senate, and which that body had laid on the table; but Lord Granville had not been advised of the action of the Senate on the resolution.1 Mr. Fish, however, being desirous of avoiding the use of terms which the Senate had practically rejected, proposed to substitute for the clause in question the assurance expressed in his telegram to General Schenck, that the second rule was not to be understood as prohibiting "the open sale of arms or other military supplies in the ordinary course of commerce." Earl Granville objected to the word "open," because it would seem to make the government responsible for clandestine sales. Mr. Fish intimated that he would be willing to omit this word; but he strongly objected to the word "exportation" in Lord Granville's draft. Lord Granville was willing to omit it.3 When the discussion had reached this stage and seemed about to result in an agreement, it was interrupted by the controversy as to the "indirect claims," and it was not resumed till several months after the Geneva tribunal had rendered its award. Meanwhile the situation had materially changed. It seems that as early as March 11, 1872, Count Beust, the Austrian ambassador at London, had written to Count Andrassy, saying that Lord Granville desired to be informed as to Austria's view of the three rules; that Prince Bismarck had expressed himself in a manner little favorable to them, intimating that in order to render them acceptable they should be extended so as to forbid the supplying of arms and other munitions of war; but that Lord Granville had said that this could not be done. On the 7th of October 1872 General Schenck reported that Count Beust had in his correspondence 'Br. and For. State Papers, LXV. 399–400. 2 Br. and For. State Papers, LXV. 400, 412, 415; S. Ex. Doc. 26, 45 Cong. 3 sess. 74. * M. Henri de Kusserow, Revue de Droit Int. VI. 59, 62. with his government taken strong ground against the rules, and that Count Bernstoff, the German ambassador, had told Lord Granville that his government probably would oppose the rules when they were proposed for its acceptance.' But it was the award at Geneva that served, more than anything else, to prevent the joint submission of the rules by the United States and Great Britain to the other maritime powers. On the 21st of March 1873 a debate took place in the House of Commons on a motion of Mr. Harvey for an address to the Crown praying that Her Majesty in communicating the rules to foreign powers would declare her dissent from the principles set forth by the Geneva tribunal. Several speakers, among whom was Sir W. Vernon Harcourt, spoke in condemnation of the rules. Mr. Gladstone, then prime minister, declared that "the dicta of the arbitrators," their "recitals," and their "rationes decidendi” should not be allowed to enter into the question; but he intimated that the attempt to place a "substantive interpretation" on the rules in recommending them to other powers would be open to objection. There was much criticism of the rules in the House of Commons again in the following May, and on the 3d of November 1873, after the question of submitting the rules had been revived by Mr. Fish, Lord Granville instructed Sir Edward Thornton that, while Her Majesty's government would not propose to fix, without the full concurrence of the Government of the United States, "any particular interpretation of the rules, or any part of them," they would think it necessary to guard themselves against any unintended consequences which, as the result of the Geneva award, the rules might be thought to involve. On the 18th of February 1874, just before leaving office, Lord Granville had a conversation with General Schenck in which he suggested that, while both governments should in submitting the rules "decline to admit any construction put on them by others," they should also state that the rules embodied what the United States maintained was international law before, and what Great Britain, though she was unable to admit that proposition, had thought fit to incorporate in her own municipal law and to endeavor to carry into effect when the rules did not exist.1 2 1S. Ex. Doc. 26, 45 Cong. 3 sess. 22. 2 Id. 56. 3 Br. and For. State Papers, LXV. 424. With this conversation, the details of which were not reported to the Government of the United States, the subject remained in abeyance till the spring of 1875. It was subsequently introduced on several occasions, in connection with the preparations for the Halifax commission, but with no practical result. On the 26th of July 1876 Sir Edward Thornton concluded a note to Mr. Fish, containing a recapitulation of the negotiations, with the statement that the delay in dealing with the matter could not be laid to the account of Her Majesty's government.1 On the 18th of the following September Mr. Fish closed the correspondence with a similar review, in which he endeavored to show that, with the exception of the period during which the controversy as to the indirect claims was pending, the United States had always been willing to make the submission, but that on various occasions, when the matter had been pressed, Her Majesty's government had either suggested delay or had abstained from giving a precise expression of its views. Mr. Fish adverted to the fact that the same clause in the treaty which bound the contracting parties to observe the rules in future also obliged them to present the rules to other powers. "The stipulation," said Mr. Fish, "is regarded by the United States as indivisible, so that a failure to comply with one part thereof may, and probably will, be held to carry with it the avoidance and nullity of the other." In conclusion he expressed the wish of the United States to cooperate in the solution of the question of submission." The Three Rules and the Award. The three rules of the Treaty of Washington were at the very outset discredited in England by the declaration inserted in the treaty that Her Majesty's government, while agreeing to them as rules of decision, could not assent to them as a statement of principles of international law which were in force at the time when the Alabama claims arose. As the result of this declaration the view was generally accepted, in spite of the opinions which Sir Roundell Palmer and others had expressed to the contrary, that the rules as a matter of course imposed upon Great Britain as a neutral new and intolerable burdens; and when the adverse award was rendered it was generally ascribed to this cause, though it was also supposed that the arbitrators had in their award so interpreted the rules as to S. Ex. Doc. 26, 45 Cong. 3 sess. 76, 80. 2 Id. 80. make them even worse than they were in their naked form. Nor was indiscriminate criticism of this kind confined to England. In the United States adherents of the theory that a loose and nominal neutrality, gauged by convenience and inclination, is the kind most conducive to international peace, as well as those who, while taking a more rigid view of the duties of neutrality, thought the rules too sweeping, began to take alarm and to utter warnings against making the duties of neutrals so onerous as to render the state of belligerency preferable to that of neutrality. And yet it is difficult to find among these utterances a serious attempt to establish specific objections either to the rules or to the award. Prof. E. Robertson, referring in the Encyclopædia Britannica to the three rules and the award, says: "These rules, which we believe to be substantially just, have been unduly discredited in England, partly by the result of the arbitration, which was in favor of the United States, partly by the fact that they were from the point of view of English opinion ex post facto rules, and that the words defining liability (due diligence') were vague and open to unforeseen constructions; for example, the construction actually adopted by the Geneva tribunal that due diligence ought to be exercised in proportion to the belligerent's risk of suffering from any failure of the neutral to fulfill his obligations." These observations are very fully sustained by the opinions of publicists. At the session of the Institute of International Law at Geneva in 1874 a report was made by a commission, of XIII. 196, art. International Law. *These observations are in striking contrast with those of Sir Henry Maine (International Law, 216), who declares that Great Britain "was penally dealt with for a number of acts and omissions, each in itself innocent." The grounds of this singular statement are not disclosed. It could hardly have been made as the result of an examination of the cases of the Alabama, the Florida, and the Shenandoah, which were the only vessels in respect of which Great Britain was held liable. On September 19, 1872, The Nation (XV. 180), referring to the Geneva award, very pertinently said: "No hardship or inconvenience can ever result to any government from being held bound to prevent what England permitted to occur with regard to the fitting out of that ship [the Alabama] The case The Shen of the Oreto, afterward the Florida, was nearly as bad. andoah * * was received at Melbourne with welcome and rejoicings which it is no exaggeration to call wild. The tribunal imposes * * no new or heavy burden on neutrals in deciding that what occurred at Mel bourne made the English Government liable for all the damage done by the Shenandoah afterward." which Bluntschli was reporter, which had been appointed to examine the three rules. The principal paper was presented by Calvo, who, after examining international transactions and the legislation of particular states, and citing the opinions of Klüber, G. F. de Martens, Fiore, Pando, Bello, De Cussy, Hautefeuille, Heffter, Bluntschli, Gessner, Hall, Ortolan, Massé, Halleck, and other publicists, concluded that "incontestably the three rules do not constitute a new * obligation in the law of nations ; but on the contrary they merely affirm preexisting principles consecrated for many years by numerous acts and by the legislation and practice of nations." 1 Professor Lorimer, of Edinburgh, assailed the rules on the significant ground that neutrality itself was by no means a constant duty, but altogether circumstantial. He also suggested that by cutting off military supplies wars might be brought to an end before the belligerents were sufficiently exhausted. Moreover, he thought the first rule capable of being so applied as to prohibit commerce in ships between belligerents and neutrals altogether, and objected to making the intention with respect to a ship's use, rather than her actual character, the test of neutrality." President Woolsey was of opinion that the rules represented the duties prescribed by international law and that they were correctly interpreted by the Geneva tribunal. He thought that the commissioners who framed the treaty understood that a vessel which had been fitted out and armed and had then escaped should be seized if she reentered the jurisdiction. In this relation he pointed out that Lord Granville in his instructions to the British high commissioners of February 9, 1871, had said that Her Majesty's government was prepared to accept the rule that no vessel in the military or naval service of any belligerent which should have been "equipped, fitted out, armed, or dispatched contrary to the neutrality of a neutral state should be admitted into any port of that state," as well as the rule that no vessel should be received as a vessel of war in a neutral port which had not been commissioned in some port in the actual occupation of the government by which her commission was issued.3 1 Rev. de Droit Int. VI. 453. 2 Id. 542. 3 Id. 559. |