The indirect claims at first insisted on by the Government of the United States being now out of the question, we have to deal with the claims for damages, "growing out of the acts" of certain specified vessels, as to which it is alleged that, by reason of some default on the part of the government of Her Majesty the Queen of England, these vessels were enabled to take and destroy ships and cargoes belonging to citizens of the United States.
The causes of complaint put-forward by the United States Governernment may be classed under the following heads:
1. That by reason of want of due diligence on the part of the British government, vessels were allowed to be fitted out and equipped, in ports of the United Kingdom, in order to their being employed in making war against the United States, and, having been so equipped, were allowed to quit such ports for that purpose.
2. That vessels fitted out and equipped for the before-mentioned purpose, in contravention of the foreign-enlistment act, and being therefore liable to seizure under that act, having gone forth from British ports, but having afterward returned to them, were not seized as they ought to have been, but, having been allowed hospitality in such ports, were suffered to go forth again, to resume their warfare against the commerce of the United States.
3. That undue favor was shown in British ports to ships of war of the Confederate States in respect of the time these ships were permitted to remain in such ports, or of the amount of coal with which they were permitted to be supplied.
4. That vessels of the Confederate States were allowed to make British ports the base of naval operations against the ships and commerce of the United States.
Owing to all or some one or other of these causes, vessels of the Confederate States were enabled, it is alleged, to do damage to the commerce of the United States; and compensation is claimed in respect of the damage so done.
The treaty of Washington
The treaty of Washington, from which our authority is derived, lays down, for our guidance in dealing with and deciding on these claims, certain rules as to the obligations of Great Britain as a neutral state, which for the purpose of this arbitration are to be taken to have been binding on it.
Not, indeed, that the British government admits that these rules form part of the law before existing between nations. On the contrary, it is expressly stated that "Her Britannic Majesty has commanded her high commissioners and plenipotentiaries to declare that Her Majesty's government cannot assent to the foregoing rules as a statement of principles of international law which were in force at the time when the claims mentioned in Article I arose, but that Her Majesty's govern-
ment, in order to evince its desire of strengthening the friendly relations between the two countries, and of making satisfactory provision for the future, agrees that, in deciding the questions between the two countries arising out of those claims, the arbitrators should assume that Her Majesty's government had undertaken to act upon the principles set forth in these rules. And the high contracting parties agree to observe these rules as between themselves in future, and to bring them to the knowledge of other maritime powers, and to invite them to accede to them."1
The rules in question are as follows:
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.
Secondly. Not to permit or suffer 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 and waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties.1
With these rules before it, the tribunal is directed to determine as to each vessel, "whether Great Britain has, by any act or omission, failed to fulfill any of the duties set forth in such rules, or recognized by the principles of international law not inconsistent with such rules."
The effect of this part of the treaty is to place this tribunal in a position of some difficulty. Every obligation for the non-fulfillment of which redress can be claimed presupposes a prior existing law, by which a right has been created on the one side and a corresponding obligation on the other. But here we have to deal with obligations assumed to have existed prior to the treaty, yet arising out of a supposed law created for the first time by the treaty. For we have the one party denying the prior existence of the rules to which it now consents to submit as the measure of its past obligations, while the other virtually admits the same thing; for it "agrees to observe the rules as between itself and Great Britain in future, and to bring them to the knowledge of other maritime powers, and invite them to accede to them"—all of which would plainly be superfluous and vain if these rules already formed part of the existing law recognized as obtaining among nations.
It is, I cannot but think, to be regretted that the whole subject-matter of this great contest, in respect of law as well as of fact, was not left open to us, to be decided according to the true principles and rules of international law in force and binding among nations, and the duties and obligations arising out of them, at the time when these alleged causes of complaint are said to have arisen.
From the history of the treaty of Washington we know that it was proposed by the British commissioners to submit the entire question, both as to law and fact, to arbitration; but the commissioners of the United States refused to "consent to submit the question of the liability of Great Britain to arbitration unless the principles which should govern the arbitrator in the consideration of the facts could be first agreed upon." In vain the British commissioners replied that they "should be willing to consider what principles should be adopted for observance in
future, but that they were of opinion that the best mode of conducting an arbitration was to submit the facts to the arbitrator, and leave him free to decide upon them after hearing such arguments as might be necessary." The American commissioners replied that they should be willing to consider what principles should be laid down for observance in similar cases in future, but only with the understanding that "any principles which should be agreed upon should be held to be applicable to the facts in respect to the Alabama claims." The British commissioners and government gave way, possibly without "fully appreciating the extent to which the principles of which they were thus admitting the application would be attempted to be carried in fixing them with liability.
How this apparent anomaly arose is plain. Her Majesty's government, animated by a high sense of justice and by an earnest desire of conciliation, were anxious to remove every possible cause of complaint or sense of wrong which the Government and people of the United States had, or believed themselves to have, against Great Britain as to matters arising out of the civil war; they were willing that if, through any errrors or shortcomings on the part of British authorities, injury had been caused to American subjects, full redress should be afforded; they were willing that the question should be determined by an independent and impartial tribunal; and though they would naturally have preferred that the matters in dispute between the two countries should be decided by what they believed to be the rules of international law governing the case, rather than that, if the decision should be in favor of Great Britain, the American people should feel that the contest had not been determined according to what, in their view, were the principles applicable to it, Her Majesty's Government gave way to the desire of that of the United States, and consented that the rules by which it was agreed that the duties and obligations of the two nations should be governed in any future case should be taken to be the measure of the past obligations and duties of Great Britain with reference to the subject-matters of the dispute.
It was a great and generous concession, and though the effect of it might be a pecuniary sacrifice on the part of Great Britain, it was one which was cheerfully made on the one side, and I trust will not fail to be appreciated in the same generous spirit on the other.
If, however, the differences which have unhappily arisen between the United States and Great Britain were to be determined, not according to the rules of international law which the arbitrators to be agreed on should determine to be applicable to the case, but according to rules to be settled by the contending parties themselves, then I cannot but wish that the framers of this treaty had been able to accomplish the difficult task, now left to us, of defining more precisely what is meant by the vague and uncertain term "due diligence," and had also set forth the further "principles of international law, not inconsistent with the rules laid down," to which reference is made as possibly affecting the liability of Great Britain.
To some of the heads of complaint hereinbefore referred to, this observation does not indeed apply. Whether vessels, which might originally have been seized, should have been so dealt with when they reentered British ports, or whether they were protected by the commissions they had in the mean while received from the confederate government ; whether confederate ships of war were permitted to make British ports the base of naval operations against the United States; whether the accommodation afforded to them in British ports consti-
tuted a violation of neutrality, for which Great Britain can be held liable, are questions which are left to be decided and must be decided according to the rules of international law alone.
But when we have to deal with the far more important question of the liability of Great Britain by reason of the omission to use "due diligence" to prevent the equipment of vessels of war in her ports, as required by the treaty, we find nothing in the treaty to direct us as to the meaning of that term, especially as regards the degree of diligence which is to be understood to be required by it.
Left in this difficulty, we must endeavor to determine for ourselves the extent and meaning of the "due diligence" by which we are to test the alleged shortcomings of the government of Great Britain. For, it is plain that the standard of "due diligence" ought not to be left to the unguided discretion of each individual arbitrator. The municipal law of every country, wherever diligence is required by the law, whether in respect of obligations arising out of contract, or in regard to the due care which every one is bound to exercise to avoid doing harm to the persons or property of others—ne alienum laedat—prescribes some standard by which the necessary degree of diligence may be tested.
Dealing here with a matter appertaining to law, it is to juridical science that we must look for a solution of the difficulty. And since we have to deal with a question of international law, although, it is true, of an exceptional character, it seems to me that it will be highly useful to endeavor to form a clear view of the reciprocal rights and duties between belligerents and neutrals, created by international law generally, and of the diligence necessary to satisfy the obligations which that law imposes. I cannot concur with M. Staempfli, that, because the practice of nations has at times undergone great changes, and the views of jurists on points of international law have often been and still are conflicting, therefore there is no such thing as international law, and that, consequently, we are to proceed independently of any such law—for such is the effect of his reasoning, if I understand it rightly—according to some intuitive perception of right and wrong, or speculative notions of what the rules as to the duties of neutrals ought to be. It seems to me that when we shall have ascertained the extent to which a neutral state is responsible, according to the general law of nations, for breaches of neutrality committed by its subjects, and the degree of diligence it would be called upon to exercise under that law, in order to avoid liability, we shall be better able to solve the question of what constitutes due diligence in the terms of the treaty of Washington. That treaty may have admitted a liability in the respect of the equipment of ships where none existed by international law before, as I certainly think it has: but the degree of diligence required of a neutral government to prevent breaches of neutrality by its subjects must be determined by the same principles, whatever may be the nature of the particular obligation.
Besides the necessity of thus considering the relation of belligerents and neutrals with reference to the subject of "due diligence," we have further, in order to satisfy the exigency of the articles of the treaty, to consider whether, besides in the omission of "due diligence," Great Britain has failed to fulfill any duty imposed by any principle of international law not inconsistent with the rules laid down. It is clear also that, with reference to the other heads of complaint, our decision mnst necessarily depend entirely on the rules of international law applicable thereto. It seems to me, therefore, desirable, in the first place, to endeavor to take an accurate survey of the law by which the relative
rights of belligerents and neutrals are fixed and determined, as essential to the solution of the questions we are called on to decide.
I proceed, therefore, to consider the subject of neutral obligations in time of war.
Neutrality may be said to be the status of a country relatively to two others which are at war with one another, while it remainsâ¨ at peace with both, and gives assistance to neither.
The last-mentioned condition is plainly an essential element of that which goes before it; for, to give assistance to either of the belligerents would be indirectly to take a part in the war, and would afford a sufficient reason to the one whose enemy was thus assisted, for having recourse to force to prevent such assistance from being given.
It is obviously immaterial in what form the assistance is rendered, so long as its purpose and effect is to add to the means of the belligerent for the purpose either of offense or defense. Troops, men, horses, ships, arms, munitions of war of every kind, money, supplies—in short, whatever can add to the strength of the belligerent for the purpose either of attack or defense—are things that cannot be supplied by a neutral state to either belligerent without forfeiting the character of neutrality and the rights incidental to it.
In like manner the neutral sovereign cannot allow the use of his territory for the passage of troops of either belligerent, still less allow it to be used by either as a base of hostile operations. He cannot lend his ships for the transport of troops, arms, or munitions of war, or even for the transmission of dispatches. Whatever restrictions, in the exercise of his territorial rights, he imposes on the one belligerent, he most impose on the other also; for restraints—however lawful and proper in themselves—enforced as against the one, dispensed with as regards the other, are indirectly assistance given to the one so favored.
Whatever obligations attach by the general principles of the law of nations to the state or community, as a whole, are equally binding on its subjects or citizens. For the state or community is but the aggregate of its individual members, and whatever is forbidden to the entire body by that law, is equally forbidden to its component parts. In this sense, and in this sense only, can it be said that international law—in other words, the common law of nations— forms part of the common law of England; for the greater part of the rules of international law, by which nations now consent to be bound, are posterior in date by many centuries to the formation of the common law of England. Nevertheless, Great Britain forming part of the great fraternity of nations, the common law adopts the fundamental principles of international law, and the obligations and duties they impose, so that it becomes, by force of the municipal law, the duty of every man, so far as in him lies, to observe them; by reason of which any act done in contravention of such obligations becomes an offense against the law of his own country.
But the subject who thus infringes the law of his own country by violating the neutrality which that law enjoins him to maintain, is amenable for his offense to the law of his own country alone, except when actually taking part in the war as a combatant, when, of course, he is liable to be dealt with according to the laws of war. The offended belligerent has otherwise no hold on him. International law knows of no relations between a state and the subjects of another state, but only of those which exist between state and state. But this being so, the belligerent, against whom a breach of neutrality has been committed by the subject of a neutral
state, as distinguished from the state itself, may have a right to hold the state responsible, and to look to it for redress. For the state, that is, the community as a whole, is bound to restrain its individual members from violating obligations which, as a whole, it is bound to fulfill.
Not, however, that the responsibility of the state for the acts of its subjects is absolute and unlimited. Reason has set bonnds to a responsibility which would otherwise be intolerable. For it must be remembered that the consequence of a violation of neutrality is the right of the offended belligerent to treat the offending neutral as an enemy, and declare war against him. He is not bound to accept pecuniary amends as an alternative.
Now, reason points out that the government of a country can only be held responsible for breaches of neutrality committed by its subjects, when it can reasonably be expected to prevent them.
There are things which a government can prevent, and others which it cannot. It can prevent things that are done openly and in defiance of law. The open levying of men, and expeditions departing from its territory by land or water, are things which a government would properly be expected to, prevent, and for which, if not prevented, it would be answerable.
But a government could not be so held in respect of things it cannot prevent; such as the conduct of individual subjects in enlisting or serving in the land or sea force of a belligerent, or things done clandestinely or surreptitiously, so as to elude observation or detection, notwithstanding the exercise of proper diligence to prevent the law from being broken. But then the exercise of such diligence is part of the duty of a government, and the condition of its immunity. If this diligence has been wanting, a belligerent has just cause to hold the neutral state responsible for wrongful acts done by its subjects, in violation of neutrality, and from which he, the belligerent, has suffered. We are thus brought face to face with the all-important question of what is this "diligence" which a government is thus bound to exercise to prevent breaches of neutrality by its subjects. I shall endeavor presently to grapple with that question; but I prefer first to complete my survey of the relative rights and obligations of belligerents and neutrals.
And as the principal complaint against the British government relates to vessels of war furnished by its subjects to the Confederate States, I shall, in the first place, apply myself to the question how far the subjects of a neutral state can, consistently with the obligations of neutrality, supply a belligerent with articles of warlike use in the way of trade and business.
For, thus far, we have been dealing with assistance rendered to one belligerent against another, animo adjuvandi, for the direct purpose of enabling him to overcome or resist his opponent. Very different considerations present themselves when we have to deal with assistance furnished to a belligerent, not animo adjuvandi, with the object of enabling him to overcome his enemy, but animo commercandi—in the way of trade and commerce.
Here a broad and important distinction between the state and its subjects presents itself. The former, generally speaking, cannot, consistently with neutrality, under any circumstances, supply to one of two belligerents articles which may be of use to him incarrying on war. For, as governments do not engage in trade, save in exceptional cases of very rare occurrence—as, for instance, when a government disposes of ships for which it has no use— nothing supplied by a government to a belligerent can be supplied
otherwise than animo adjuvandi; that is, for a purpose inconsistent with neutrality. But its subjects stand, in this respect, on a very different footing. The subject, indifferent to both the belligerent parties, may be willing to sell to either articles of warlike use in which he is in the habit of dealing. Assistance, and sometimes very material assistance, is thus afforded to a belligerent, who, by this means, is enabled to carry on war. Is assistance thus afforded, not animo adjuvandi, but animo commercandi, a breach of neutrality, or is it to be considered as within the right of the neutral subject?
Now, the subjects of a neutral state having in time of peace the right of carrying on trade with a belligerent, on what ground of reason or justice, it may be asked, should their right of peaceful trade be taken away, and their interests, thus be damaged by reason of a war which they have had no share in bringing about, and in which they have no concern? The condition of neutrality, in not supplying anything to either belligerent with the object of assisting him against the other, or which would not be as readily supplied to the other, being observed, what reason can be suggested why the rights of the neutral in his relations with either belligerent, as they existed before war broke out, should be disturbed or altered?
An Italian jurist thus writes:
Il fatto della vendita degli oggetti di contrabbando avvenuta in territorio neutrale è opera dello stato etesso nella sua qualità di persona pubblica, o invece è l'operato di suoi pvivati cittadini, che fanno di ciò la loro abituale professione. Nel primo caso è fuor di dubbio che vi sarebbe motivo di lagnanza per parte di uno dei belligeranti, poichè non entra negli officii dello stato l'attendere a privati mercimonii, ed ogni suo atto ha un valore internazionale o in senso di un diritto o in senso di una obbligazione, che non si può mai dissimulare. Ma lo stesso non si può dire ove la vendita degli cittadini di quello stesso stato. In esso non potrebbe ravvisarsi un fine politico come nell'azione pubblica del governo, non essendo lo scopo di tali cittadini che commerciale od industriale, epperò non lesivo in modo alcuno degli altrui diritti.
Se gli autori che hanno discusso la presente questione avessero ritenuta la capitale differenza che passa tra gli atti pubblici del governo e quelli dei privati cittadini, non avrebbero al certo classificato come atti contrari alla condizione neutrale la vendita fatta in territorio neutro da privati cittadini di armi e munizioni da guerra.1
Nevertheless, it is certain that the rights of a nation, as regards trade with another nation, do undergo very considerable modifications, when such second nation engages in war with a third; and when it is said by some writers that neutrality is only the prolongation of the state of peace between the neutral and the belligerent, this language must be taken with considerable allowance. For, it is certain that, as regards trade and commerce, the rights of the peaceful neutral undergo very serious diminution. By the admitted rules of international law, a belligerent may seize articles contraband of war in transit by sea from the neutral to his enemy. By blockading his enemy's port he may shut the commerce of the neutral even in articles not capable of being applied to warlike use. True, say those writers who advocate the rights of neutrals against belligerents; but if the rights of the neutral subject in respect of trade had been regulated according to natural law, or, to speak more philosophically, according to the law which reason points out as for the common benefit of all, those rights would have remained undisturbed and unaffected by the wars of others with whom his own country remained at peace. But between distant nations trade can be carried on only by sea. The nations most powerful at sea have generally been those who have waged war on the ocean.
In such wars they have sought to weaken their adversaries by crippling their commerce, and to effect that object have imposed restraints on peaceful states less powerful than themselves. Some countries have even gone so far, in early times, as to interdict all commerce whatever with nations with which they were at war. The sense of mankind, it is true, revolted against pretensions so extravagant, and after a time the restraints which belligerents were entitled to impose on neutral commerce were rendered less oppressive. But they still bear the impress of their origin, as having been imposed by the strong upon the weak. They are manifestly in derogation of the common right of peaceful trade which all maritime nations enjoy in time of peace, but which is thus made to submit to restraint in order to serve the purposes of those by whom the peace of the world is disturbed.
Let us see how these restraints on neutral commerce became settled in time. As they existed till a very recent period, according to the general practice of nations, they were as follows:
1. Though the belligerent might resort to the neutral territory to purchase such articles as he required, even for his use in war, and the neutral in selling him such articles would be guilty of no infraction of neutrality, yet, in regard to things capable of being used in war, and which thenceforth received the appellation of "contraband of war," if, instead of the belligerent himself conveying them, the neutral undertook to convey them, such articles, if intercepted by the adversary, though the property of the neutral in them had not been transferred to the belligerent, were liable to be seized and became forfeited to the captor. If the article was of a doubtful character, ancipitis usus, that is, one that might be applied to purposes of peace or of war, the liability of seizure depended on whether the surrounding circumstances showed that it was intended for the one use or the other.
2. If either belligerent possessed sufficient force at sea to bar the access to a port belonging to his enemy, he was entitled to forbid the neutral all access to such port for the purpose of trade, however innocent and harmless the cargo with which his ship might be charged, under the penalty of forfeiting both ship and cargo.
3. The neutral was prohibited from carrying the goods of a belligerent, such goods not being protected by the neutral flag, but being subject to seizure.
4. Besides this, according to the practice of France, the neutral was prohibited from having his goods carried in the enemy's ship, and if the ship was taken the goods became prize.
Lastly, to enforce the rights thus assumed by powerful belligerents, the neutral had further to submit to what was called the right of search, in order that the belligerent might satisfy himself whether goods of the enemy, or goods contraband of war intended for the enemy, were being conveyed in the neutral ships.
By the wise and liberal provisions of the declaration of Paris of 1856, the last two oppressive restraints on the trade of neutrals, mentioned under heads 3 and 4, have, as between most of the leading nations of the world, been done away with. The others remain. America has not as yet formally assented to the declaration of Paris. The two rules in question do not, however, come into play on this occasion.
But the two first of the restraints put on neutral commerce occupy a prominent place in the discussions which have occurred in the course of this inquiry. Both of them are manifestly restraints, and restraints of a very serius character, on the natural freedom of neutral commerce. The advantage thus acquired of preventing
the trade of the neutral in articles of warlike use, at a time when that trade is the most likely to be profitable to him, and still more that of preventing it in any shape by the blockading of an enemy's port, is obviously obtained only at the expense of the peaceful rights of neutral commerce.
The right of blockading a port, and thereby excluding from it neutral commerce of every sort, has been justified by assimilating it to that exercised by the besieger of a city or fortress, in investing it and debarring all access to it. But the analogy is not complete, for the immediate purpose of the besieger is to take the city or fortress, while that of the blockade is, not to capture the blockaded port, but to enfeeble the enemy and diminish his means by the gradual destruction of his commerce, which of course necessarily involves a corresponding loss inflicted on the commerce of the neutral. And though it may be said that, just as the besieger of a city or fortress is in occupation of the territory which surrounds it, and is, therefore, by the law of war, master of such territory and entitled to give laws to all within its ambit, and has thus fall right as well as power to forbid access to it, so the blockading force has occupation of the territorial waters and can exercise a similar right in respect of them; yet for the most part such occupation is constructive only, and the blockading force is generally in the habit of sending cruisers far beyond the limits of the territorial waters, to intercept vessels intending to enter the blockaded port.
On whatever ground the right of blockade thus conceded to belligerents may be placed, it is obvious that it is a very serious encroachment on the freedom of the neutral in the peaceful pursuit of commerce.
In M. Calvo's work, "Le droit international," blockade is spoken of as "la plus grave atteinte qui puisse être portée par la guerre au droit des neutres.1 "
Fiore says: "Le blocus est odieux et contraire l'indépendance des peuples neutres; parcequ'il n'empêche pas seulement le commerce de certaines matières déterminées, comme la contrebande de guerre; mais il détruit toute espèce de commerce de quelque nature que ce soit avec les lieux assiégés et bloqués."2
Nor must it be forgotten, with respect to the trade carried on in defiance of a blockade, that the neutral owes nothing to the blockading belligerent, who, for his own purposes, thus seeks to shut out the innocuous commerce of the neutral with his enemy, regardless of the loss and injury he is thereby inflicting on him.
The right to intercept articles of warlike use has been for the most part treated by earlier writers on international law as an admitted encroachment on the neutral in respect of freedom of trade. It has been justified on the score of the necessity in which the belligerent captor is placed, of preventing that which will be used to his own hurt from reaching his adversary; or as arising from the law of self-defense, which gives to the belligerent the right of stopping things which may be used against him, while on their way to his enemy, and, furthermore, of confiscating them to his own use as a penalty on the neutral for having intended to convey them to the enemy.
Looked at from this point of view, it is said that the right of the belligerent to intercept this species of commerce, and the liability of the neutral , to have his property captured and confiscated under such circumstances, do not arise out of obligations inherent in the nature of neutrality. They are purely conventional, and, as it were, a compromise
between the power of belligerents and the rights of neutrals; and, if this species of trade can be said to be unlawful, it is only so sub modo, it being left free to the neutral to pursue it, subject always to the right of the belligerent to seize it during its transit to his enemy, if he can. "The right of the neutral to transport," says that great jurist Chancellor Kent, "and of the hostile power to seize, are conflicting rights, and neither party can charge the other with a criminal act."1
A different view respecting the trade of the neutral in articles of contraband of war has, however, been maintained in our day.
M. Hautefeuille, and the writers of his school, look upon the supplying of articles of contraband of war by the neutral in the way of trade as inconsistent with the duty of neutrality, which prohibits the rendering of assistance to a belligerent for the purpose of a war in which he is engaged, extending the rule to articles of warlike use supplied in the way of trade as much as to those furnished gratuitously.
According to this view, the neutral thus guilty of a breach of the first principle of neutrality justly incurs the penalty of his transgression in the confiscation and loss of his property.
This doctrine is open, however, to the objection that it is inconsistent with the practice of nations, according to which this species of trade-has never been treated as a breach of neutrality in the full sense of the term. It wholly fails to account for or justify the right of blockade.
But the importance of this difference in the views of publicists will be more sensibly felt when we proceed to deal with the subject of the trade of the neutral with the belligerent in the country of the neutral.
One thing is quite clear, and must not be lost sight of: Neither the trade in contraband of war nor that carried on in defiance of a blockade constitute, practically, any violation of neutrality, so far as the government of the neutral trader is concerned. Scarce any neutral government has ever attempted to prevent its subjects from carrying on such trade; no neutral government was ever held responsible, as for a breach of neutrality, for such trade carried on by its subjects. This is a point as to which there has been no difference of action among governments, or difference of opinion as to the duty of governments among writers on public law. It is one of those things which, on the part of its subjects, a government, according to the existing practice of nations, is not called upon to prevent. It is one of those things which the belligerent, who, in furthering his own purposes is indifferent to the loss he inflicts on the neutral, must submit to if he is unable to prevent it, and for which he is not entitled to hold the neutral state responsible.
Speaking of the transport of articles contraband of war, M. Ortolan states the law most correctly:
Si c'est l'état neutre lui-même qui fait opérer ce transport, soit qu'il le fasse gratuitement, soit qu'il en reçoive le prix, il devient auxiliaire de la lutte, et par conséquent il rompt la neutralité. La chose change si ce sont les sujets de cet état qui, sans appui de leur gouvernement, font de ce même transport un objet de leurs opérations commerciales. Une puissance qui reste neutre n'est pas obligée de défendre ce commerce a ses sujets, encore moins de les punir pour l'avoir fait; seulement elle ne peut le couvrir de sa protection. En d'autres termes, le pavilion ne couvre pas les merchandises de contrebande de guerre, non pas même dans le cas où ces marchandises appartiennent à des neutres.2
Among the various articles coming under the denomination of contraband of war, according to the general principles of international law, two more particularly interest us on the present
occasion-ships of war and coals. Both are excluded from the category of contraband by M. Hautefeuille, who refuses to recognize as such anything which is not in its actually existing state ready to be used for attack or defense. The following passages from his work, "Des droits et des devoirs des nations neutres," explain the views of the author on the subject of ships, which, till armed, he refuses to consider contraband of war, and which, whatever the construction, when unarmed, he holds to be objects of lawful commerce:
Je ne puis comprendre qu'un bâtiment, quelles que soient sa grandeur, sa forme, sa destination, soit un objet de contrebande de guerre. Le navire n'est pas propre à la guerre, préparé pour servir exclusivement aux opérations militaires, apte à étre employé à ces opérations, immédiatement et sans aucun changement, sans aucune addition. Lorsqu'il est dépourvu des canons, des munitions, des armes et des hommes qui doivent les employer, ce n'est pas une machine de guerre; c'est un véhicule plus ou moins grand, plus ou moins solide, mais ce n'est qu'un véhicule. Pour lui donner les qualités spéciales et exclusives qui déterminent le caractère de contrebande de guerre, il est necessaire de transporter a bord des canons, des armes, des munitions, en un mot, tout l'attirail du combat. C'est alors seulement que le bâtiment devient, non une machine de guerre, mais une machine portant des instruments de guerre et susceptibles de nuire, par cette circonstance seulement, au belligérant. Mais la machine elle-même, mais le véhicule dénué de son armement, ne peut étre réputé nuisible. Au reste, il faut convenir que ce commerce est peu fréquent, et la meilleure preuve que je puisse donner de l'innocuité de ce négoce est le silence du droit secondaire à son égard.1
Les bâtiments non armés, construits dans les ports neutres et vendus aux nations engagés dans les hostilités, quelles que soient leur force, la nature de leur construction, sont également objets d'un commerce licite. Ils doivent étre régis par la règle générale, qui est la liberté entière du commerce, entre les nations neutres et les deux belligérants.1
As to coal, M. Hautefeuille expresses himself as follows:
La houille est sans doute un auxiliaire indispensable des machines, mais elle ne saurait être considérée comme un instrument direct et exclusif de guerre; bien loin de là, les usages pacifiques auxquels elle est employée sont beaucoup plus important que ceux qui résultent de I'Etat de guerre; et la consommation faite pour ces usages pacifiques est beaucoup plus considérable que celle nécessité par les hostilités. D'après les règles du droit primitif, la houille est donc une denrée dont le commerce doit toujours rester libre.
Je ne saurais prévoir comment les traités à intervenir entre les peuples navigateur trancheront cette question; mais ce que je puis affirmer c'est que la houille, d'après le droit primitif, ne fait pas partie de la contrebande; c'est que la loi secondaire ne peut changer la nature des objets, ni leur donner un caractère qu'ils n'ont pas, d'après les principes qu'elle est appelée à appliquer, mais non à modifier.2
But the views of this eloquent and learned but theoretical author on this subject are not shared by other writers. Galiani, Hübner, (the champion of the rights of neutrals,) Martens, Tetens, Piantanida, Rutherford, Lord Stowell, Chancellor Kent, Heffter, in his able work, "Das europäische Völkerrecht der Gegenwart," include ships among the things which are contraband of war. Among later writers, M. Ortolan and Sir Robert Phillimore place both ships and coal in the list of articles of contraband. I entirely concur in thinking that a ship adapted and intended for war is clearly an article of contraband. Such a ship is, in fact, a floating fortress, and, when armed and manned, becomes a formidable and efficient instrument of warfare. Coal, too, though in its nature ancipitis usus, yet, when intended to contribute to the motive-power of a vessel, must, I think, as well as machinery, be placed in the same category as masts and sails, which have always been placed among articles of contraband, except by M. Hautefeuille, who, as has been stated, insists that nothing is to be considered as contraband except what is capable of being immediately applied to the purpose of destructive warfare.
It is perfectly clear, though I fear it has not always been kept in view in the course of these discussions, that, with the liability to the seizure and loss of the cargo, (in some instances, it is said, of tlhe ship,) if he transmits contraband of war to the enemy of the belligerent captor, (and to the loss both of ship and cargo if he attempts to force a blockade,) ends, according to the existing practice of nations, all restraint on the trade and commerce of the neutral. In his own country, in his own markets, in his own factories, the neutral may, according to the practice of nations, sell articles to the belligerent which, if sent by sea, would be contraband of war. Theoretical writers are not, indeed, of one mind on this subject. "While the great majority of authors are agreed as to the right of the neutral to sell, in the way of trade, to the belligerent resorting to his market, whatsoever the latter desires to buy, if the neutral has it to sell, whether the article be of an innocent character or contraband of war in its most destructive form, a few authors have recently written in a different spirit.
No writer on international law before Galiani had ventured to assert that the neutral was prohibited from selling, in his own country, to a belligerent, articles which, if sent out of his country by sea, would be liable to siezure as contraband of war. His doctrine to that effect was vigorously refuted by his two distinguished countrymen, Lampredi and Azuni, aud was for a time abandoned as untenable; but it has been revived in our day. Let us review the leading authorities. The question is not only of interest to the jurist, but one which will be found to be important to some of the decisions of this tribunal.
Lampredi, in his work on neutral commerce, refutes the opinion of Galiani. On the general subject, ( I quote from Peuchets' French translation, not having the original before me,) he writes as follows:
Lorsqu'une fois l'on a établi la seule loi que les peuples neutres doivent observer pendant la guerre, il devient inutile de demander quelles doivent être les limites du commerce qu'ils font en conséquence de leur neutralité, parcequ'on peut répondre qu'il n'en doit avoir aucune, et qu'ils peuvent le faire de la même manière qu'ils le faisaient en temps de paix, observant seulement une exacte impartialité pendant tout le temps de la guerre. Jl n'y aura donc aucune espèce de marchandises qu´ils ne puissent rendre et porter aux belligérants et l´on ne pourra pas les empêcher de leur vendre ou louer des navires, pourvu qu'ils ne refusent point à l'un ce qu'ils accordent à l'autre. Devant et pouvant suivre légitimement leur commerce comme en temps de paix, il ne doit y avoir aucune distinction de marchandises, d'argent, d'armes, et d'autres munitions de guerre: la vente et le transport de ces divers objets dans les places des belligérants doivent être permis, et ne point porter atteinte à la neutralité, pourvu qu'il n'y ait ni faveur, ni préférence, ni esprit de parti.1
In chapter v, page 57, he treats the question whether neutrals may sell every kind of merchandise within the neutral territory to a belligerent, as one which no jurist anterior to Galiani had ever thought of bringing into controversy, all their discussions being confined to the carriage of contraband to the enemy. It is not, he explains, till they have left the neutral territory that articles, though of warlike character, assume the character of contraband. In chapter vii, page 72, he says :
Le caractère de contrebande ne vient donc pas, aux marchandises, de l'usage qn'on peut en faire dans la guerre, mais de tout autre source. Aussi longtemps qu'elles sont sur le territoire neutre, elles ne diffèrent pas des autres marchandises; elles s'y vendent et s'y achètent de la meme manière et sans aucune différence. Deux circonstances font prendre à ces marchandises le caractère de contrabande: 1, qu'elles soient passées à la puissance de l'ennemi, ou à moins destinèes à y passer; 2, qu'elles soient sorties du territoire neutre. Alors elles deviennent choses hostiles, res hostiles; elles prennent le caractère de marchandises de contrebande ; et si elles sont trouvées hors de toute juridiction souveraine, comme, par exemple, si l'on les trouvait en pleine mer, elles peu-
vent être légitimement arrêtées et confisquées par l'ennemi, quel que soit le pavilion qui les couvre, non pas parce que ce soit des instruments ou provisions de guerre, mais parce que ce sont des choses appartenants a l'ennemi, ou au moins parce qu'elles sont destinées à devenir sa propriété et à accroître ses forces. D'où il résulte que le souverain qui permet, sur son territoire, le commerce libre de toutes sortes d'objet ne passe pas les droits de souveraineté, et les puissances belligérantes ne peuvent s'en plaindre ni l'accuser de donner la main à la vente des marchandises de contrebande, qui, sur son territoire, ne peuvent jamais avoir ce caractère, et ne peuvent en porter le nom que lorsqu'elles sont devenues ou destinées à devenir la propriété de l'ennemi, et sorties du territoire où elles ont été achetées.
In another work Lampredi, speaking of neutrality, says:
Et quia neutrius partis esse debet, et a bello omnino abstinere, neutri etiam suppeditabit quae directe ad bellum referuntur. Suppeditare hic loci transvehere ad alterutrum hostem significat; nam si qua gens instrumenta bellica, et coetera supra memorata utrisque bellantibus aequo pretio veluti merces vendat, neutralitatem non violat. Ad hanc necessariam mercaturae distinctionem animum non advertisse eos, qui de hac retam prolixe scripserunt, manifeste patet; maxime enim inter se differre videntur exportatio mercium ad hostem meum ab amico vel neutro populo facta, et eorum venditio, quae ad bellum necessaria esse possunt.1
Le commerce général passif, ou la vente impartiale sur le propre territoire des neutres, de marchandises, denrées, ou manufactures, de toute espèce, sera toujours permis, pourvu que le souverain n'ait pas fait un traité particulier avec un des belligérents dont les sujets viennent faire des achats et des provisions sur le territoire neutres et qu'il ne se mêle pas des achats, des ventes, et des autres contrats qui transmettent la propriété, qu'il n'ordonne pas qu'on remplisse les magasins de provisions de guerre, et ne fasse pas mettre ses navires à la voile pour les transporter sur le territoire du belligérant. En protégeant également le commerce de son pays, en permettant à ses sujets de continuer leur commerce de la même manière et avec la même liberté qu'avant la guerre, il ne fait qu'user de droits incontestables, qui ne peuvent être limités que par des conventions spéciales, expressément ou tacitement faites.
After combating the reasoning of Galiani, he adds:
Il est nécessaire que je répète ici le principe incontestable que j'ai précédemment rapporté, qu'en suivant le droit conventionnel de l'Europe, les neutres ne peuvent porter les choses qui sont spécialement propres à la guerre, et qui y sont directement employés, mais qu'ils peuvent sans inconvénient, selon le droit universel des gens, les vendre comme marchandise sur leur propre territoire à quiconque se présente pour les acheter, puisqu'ils le font sans partialité, et sans montrer de faveur plutôt pour une partie belligérante que pour l'autre.
Reddie, in his "Researches Historical and Critical in Maritime and International Law," cites these views with concurrence and approbation.
In Wheaton's History of International Law, the author speaks of the refutation of Galiani by Lampredi as superfluous, as an "idle question."
Mais la thèse change s'il s'agit d'un commerce passif. S'il est défendu au neutre de porter des armes et des munitions aux belligérants, parcequ'alors il devient l'auxiliaire de l'un et l'ennemi de l'autre, il ne lui est pas défendu de vendre impartialement sur son territoire des objets nécessaires à la guerre, parceque son territoire est ouvert à tous, que tous peuvent venir y chercher ce dont ils ont besoin, et que le neutre qui se borne à vendre chez lui, à la différence de celui qui porte ses marchandises au belligérent, n'est pas tenu de rechercher qui les lui achète, pour qui elles sont achetées, et quelle est leur destination ultérieure. C'est alors qu'il est absolument vrai de dire que les neutres peuvent continuer pendant la guerre le commerce qu'ils faisaient pendant
la paix, et que la neutralité est la continuation d'un état antérieur qui ne modifie pas la guerre à laquelle le neutre, qui ouvre son marché à toutes les nations, ne prend aucune part directe ou indirecte.1
Sur un territoire neutre, il n'y a pas de marchandise de contrebande; toutes y sont libres. Elles ne deviennent contrebande qu'au moment où elles en sortent avec direction pour un lieu dont leur nature les exclut. C'est alors qu'elles tombent sous la juridiction des belligérants contre lesquels elles sont dirigées. Jusque-là et tant qu'elles restent en un lieu où elles ne peuvent leur nuire, ils n'ont pas le droit de s'occuper des transactions pacifiques dont elles peuvent être l'objet. Sans doute, la guerre donne une nouvelle impulsion au commerce passif des objets utiles à la guerre; mais cette impulsion n'est pas du fait des neutres, elle est du fait des belligérants, qui, après avoir eux-mêmes produit des circonstances nouvelles, ne peuvent trouver mauvais que les neutres en profitent dans les limites de leurs droits et de leur territoire.2
M. Ortolan observes as follows:
C´est seulement lorsque de telles marchandises sont en cours de transport pour une destination hostile qu'elles deviennent contrebande militaire. Lorsqu'un état neutre laisse ses sujets se livrer au commerce passif de ces mêmes objets, c´est-a-dire, lorsqu'il permet a tous les belligérant indistinctement de venir les acheter sur son territoire pour les transporter ensuite où bon leur semble, à leurs frais et à leur risques, sur leurs propres navires marchands, il ne fait pas autre chose que laisser s´accomplir un acte licite ; on ne peut pas dire qu'il prenne part à la guerre parce qu'il laisse ses ports libres, et parce qu'il conserve à toutes les nations le droit qu'elles avaient avant la guerre d'y entrer avec leurs bâtiments marchands pour s'y approvisionner, par la voie du commerce, des marchandises dont elles ont besoin; les vendeurs eux-mêmes ne sont pas responsables de l'usage ultérieur qui sera fait de ces marchandises; il ne sont pas tenus de connaître ni pour qui elles sont achetes ni la direction qu'on leur réserve.
Le droit conventionnel est d'accord avec ces principes; il ne défend pas la vente impartiale faite sur un territoire neutre des marchandises propres à la guerre. Mais si ces secours effectifs en nature, que l'un des combattants vient prendre et exporte à ses propres risques, étaient fournis par l'état neutre lui-même; si, par exemple, des amies, des projectiles, de la poudre étaient tirés de ses arsenaaux ou de ses manufactures publiques, ce ne serait plus là un commerce privé, et par consequent il y aurait atteinte grave à la neutralité.3
Heffter, in his "Völkerrecht der Gegenwart" (I cite from Bergson's translation,) p. 315, says:
En ce qui concerne les objets de contrebande, la vente faite aux belligérants en territoire neutre ne saurait être considérée comme un acte illicite et contraire aux devoirs de la neutralité; ce n'est que leur transport qui en rend responsable.
Professor Sandona, of Siena, "Trattato di diritto internazionale moderno," comparing passive with the active commerce of neutrals, says:
Dico adunque, che si crede a torto che faccia opera ad un di presso eguale, chi vende semplicemente nel proprio paese quanto immediatemente si riferisce ai mezzi di fare la guerra, e chi trasporta questi mezzi sui mercati o nelle piazze dei belligeranti. Il primo vende le sue merci nel proprio paese, ove non vi è, stando al puro diritto razionale, alcuna legge che gliene vieti il traffico. E appunto perchè dimora in esso, e niente osta a questo commercio, egli non fa uso che della sua libertà, che d'altra parte finchè rimane nel paese nativo, nessun principe straniero può limitare. . . . . La sola cosa che si può dimandare da lui è questa, che sia disposto a vendere egualmente a chiunque si presenta le sue merci, onde evitare il pericolo di offendere l'imparzialità, a cui i neutrali sono tenuti.
To these authors Professor Bluntschli has added the weight of his authority.
In his work entitled "Das moderne Völkerrecht," or, as it is called in the French translation, "Le droit international codifié," he writes:
Le fait qu'un état neutre fournit ou laisse fournir à un des belligérants des armes ou du matériel de guerre constitue également une violation des devoirs des neutres.
Par contre, si des particuliers, sans avoir l'intention de venir en aide à l'un des belligérants, lui fournissent à titre d'entreprise commerciale des armes ou du matériel de guerre, ils courent le risque que ces objets soient confisquées par l'adversaire comme contrebande de guerre; les gouvernements neutres ne manquent pas à leur devoir en tolérant le commerce d'objets qui sont considérés comme contrebande de guerre. . . .
Celui qui transporte de la contrebande de guerre à l'une des parties belligérantes s'expose à voir ces objets confisqués. Mais l'état neutre n'pas de motifs de s'opposer a l'expédition de la contrebande de guerre. Dans les discussions de la loi américaine sur la neutralité, le président Jefferson déclara en 1793 que la guerre étrangère ne privait point les particuliers du droit de fabriquer, de vendre ou d'exporter des armes; seulement les citoyens américains, ajoutait-il, exercent ce droit à leurs risques et périls.1
The opinion of Galiani has, however, been again revived by two or three writers in our own days.
Among these, Sir Robert Phillimore, in his work on International Law,vol. iii, § ccxxx, speaking "as to the permitting the sale of munitions of war to a belligerent within the territory of the neutral," writes:
If the fountains of international justice have been correctly pointed out in a former volume of this work, and it be the true character of a neutral to abstain from every act which may better or worsen the condition of, a belligerent, the unlawfulness of any such sale is a necessary conclusion from these premises.
What does it matter where the neutral supplies one belligerent with the means of attacking another? How does the question of locality, according to the principles of eternal justice and the reason of the thing, affect the advantage to one belligerent or the injury to the other accruing from this act of the alleged neutral? Is the cannon or the sword, or the recruit who is to use them, the less dangerous to the belligerent because they were purchased, or he was enlisted, within the limits of neutral territory? Surely not. Surely the locus in quo is wholly beside the mark, except, indeed, that the actual conveyance of the weapon or the soldier may evidence a bitterer and more decided partiality, a more unquestionable and active participation in the war.
MM. Pistoye and Duverdy also, in their "Traité des prises maritimes," express, though with less energy than the learned author last mentioned, a like view.
M. Hautefeuille, who, as we have seen, not only refuses to admit vessels equipped for war, if not armed, into the list of contraband of war, but also holds that they are legitimate articles of neutral commerce, nevertheless maintains that what is called the passive trade of the neutral in articles of warlike use is inconsistent with neutrality. His reasoning is as follows:
Cette question a été traitée avec beaucoup d'étendue par Lampredi et par Azuni; la doctrine de ces deux auteurs a été combattu par Galiani. Avant d'examiner l'opinion de ces publicistes, il me paraît indispensable de rappeler les bases de la discussion, de poser des principes qui, d'après la loi primitive, doivent la dominer. Ces principes ont déjà été établis. lis peuvent se résumer en deux droits et en deux devoirs. Les droit sont: 1. Liberté et indépendance du peuple neutre dans son commerce, en tempes de guerre, même avec les deux belligérants. 2. Liberté et indépendence absolue du neutre sur son propre territoire. Les deux devoirs sont corrélatifs aux deux droits, il les limitent. Ce sont: 1. L'impartialité; 2. L'abstention de tous actes directs de guerre, et par conséquent de fournir aux belligérents les armes et les munitions de guerre. De ces droits il résulte, sans doute, que la nation pacifique a le pouvoir de commercer librement avec chacun des belligérants, non seulement sur son propre territoire, mais encore partout ailleurs, sans qu'aucun d'eux puisse s'y opposer; mais ce droit est borné par le devoir imposé au neutre de ne fournir, ni à l'un ni à l'autre, des instruments actuellement et uniquement destinés à la guerre.
Cette limite mise par la loi primitive à la liberté des nations, s'étend-elle à tout le commerce, au commerce passif comme au commerce actif? Le devoir du neutre consiste-t-il uniquement à ne pas transporter les objets de contrebande dans les ports des belligérants; ou au contraire ne prohibe-t-il pas le fait de vendre, de fournir ces objets à ceux qui doivent s'en servir pour frapper un ennemi? À mes yeux, la réponse à cette double question ne peut être douteuse. Le devoir imposé aux nations, qui désirent ne pas prendre par aux hostilités, et jouir de la paix au milieu des maux de la guerre, est de ne pas fournir
des armes aux mains de ceux qui doivent s'en servir poor frapper. La loi naturelle, qui impose ce devoir, n'a pas fait de distinction entre le commerce actif et le commerce passif. Elle ne pouvait en faire, car l'un et l'autre ont le même résultat, celui de donner à l'un des belligérants le moyen de nuire à l'autre. Ce devoir est absolu; la restriction qu'il impose s'étend à toutes les manières de fournir à l'un des combattants l'arme dont il veut frapper son ennemi. C'est un devoir d'humanité; et il n'est pas moins inhumain de vendre des instruments homicides dans le port de Livourne que de les transporter dans celui de Londres ou de Marseille. La Vente des denrées de contrebande aux belligérants est donc prohibée sur le territoire neutre, de la même manière et par le même motif que le transport de ces denrées dans les ports des peuples en guerre.
Professor Casanova, in his recent work, "Del Diritto Internazionale," adopts the views of M. Hautefeuille.
This difference of opinion arises from the different point of view from which each party considers the question. The one party assume that to supply a belligerent with articles of warlike use, though in the way of trade, is to take part in the war; assuming which, they say with truth, that it is the same thing whether the objectionable articles are sold to the belligerent in the country of the neutral or in his own. The other party, starting from the principle that, according to natural justice, the rights of the neutral should be left free and untouched by the wars of others, look on the existing restraints on the freedom of his commerce as encroachiments on bis rights, and considering these restraints as arising entirely from convention, deny the illegality of any trade, which the actual practice of nations does not prevent. The great authority of Chancellor Kent, and of the majority of writers, is in favor of the latter view.
But, in truth, the question does not depend on the lucubrations of learned professors or speculative jurists. However authoritatively these authors may take upon themselves to write, and however deserving their speculations may be of attention, they cannot make the law. International law is that to which nations have given their common assent, and it is best known as settled by their common practice.
Now, in all wars, neutrals have traded at home and abroad in articles contraband of war, subject always in the latter case to the chance of capture and confiscation. As I have already said, no government has ever been sought to be made responsible on that account. Assuredly, no nation has ever asserted the freedom of commerce in this respect more broadly than the United States, or acted up to its principles with greater pertinacity.
On the breaking out of the war between France and England in 1793, after a proclamation of neutrality by General Washington, then President, Mr. Jefferson, then Secretary of State, thus writes to Mr. Hammond, minister of Great Britain to the United States:
The purchase of arms and military accouterments by an agent of the French government in this country, with an intent to export them to France, is the subject of another of the memorials; of this fact we are equally uninformed as of the former. Our citizens have been always free to make, vend, and export arms. It is the constant occupation and livelihood of some of them. To suppress their callings, the only means perhaps of their subsistence, because a war exists in foreign and distant countries, in which we have no concern, would scarcely be expected. It would be hard in principle, and impossible in practice. The law of nations, therefore, respecting the rights of those at peace, does not require from them such an internal derangement in their occupations. It is satisfied with the external penalty pronounced in the President's proclamation, that of confiscation of such portion of these arms as shall fall into the hands of any of the belligerent powers on their way to the ports of their enemies. To this penalty our citizens are warned that they will be abandoned, and that even private contraventions may work no inequality between the parties at war, the benefit of them will be left equally free and open to all.1
The collectors of the customs at the different ports were instructed that—
The purchasing and exporting from the United States, by way of merchandise, articles commonly called contraband, being generally warlike instruments and stores, is free to all parties at war, and is not to be interfered with. If our own citizens undertake to carry them to any of these parties, they will be abandoned to the penalties which the laws of war authorize.1
In 1842, Mr. Webster writes:
It is not the practice of nations to undertake to prohibit their own subjects from trafficking in articles contraband of war. Such trade is carried on at the risk of those engaged in it under the liabilities and penalties prescribed by the law of nations or particular treaties. If it be true, therefore, that citizens of the United States have been engaged in a commerce by which Texas, an enemy of Mexico, has been supplied with arms and munitions of war, the Government of the United States, nevertheless, was not bound to prevent it, and could not have prevented it without a manifest departure from the principles of neutrality, and is in no way answerable for the consequences. Such commerce is left to its ordinary fate, according to the law of nations.2
In his message to the American Senate, in December, 1854, President Pierce declares:
The laws of the United States do not forbid their citizens to sell to either of the belligerent powers articles contraband of war, or to take munitions of war or soldiers on board their private ships for transportation; and, although in so doing the individual citizen exposes his property or person to some of the hazards of war, his acts do not involve any breach on national neutrality, nor of themselves implicate the Government.
Thus, during the progress of the present war in Europe, our citizens have, without national responsibility therefor, sold gunpowder and arms to all buyers regardless of tbe destination of those articles. Our merchantmen have been, and still continue to be, largely employed by Great Britain and France in transporting troops, provisions, and munitions of war to the principal seat of military operations, and in bringing home the sick and wounded soldiers; but such use of our mercantile marine is not interdicted either by the international or by our municipal law, and therefore does not compromise our neutral relations with Russia.3
Chancellor Kent, in his Commentaries, says:
It was contended by the French nation in 1796 that neutral governments were bound to restrain their subjects from selling or exporting articles contraband of war to the belligerent powers. But it was successfully shown, on the part of the United States, that neutrals may lawfully sell at home to a belligerent purchaser, or carry themselves to the belligerent powers, contraband articles, subject to the right of seizure in transitu. This right has since been explicitly declared by the judicial authorities of this country. The right of the neutral to transport, and of the hostile power to seize, are conflicting rights, and neither party can charge the other with a criminal act.4
In 1862, on the occasion of the French invasion of Mexico, complaint was made by M. Romero, the representative of the Mexican government at Washington, of the French being allowed to purchase horses and mules in the United States for the purpose of the war. A long correspondence ensued between M. Romero and Mr. Seward, in which the latter vigorously maintains what he calls "the settled and traditional policy of the country." He says:
It is not easy to see how that policy could be changed so as to conform to the views of M. Romero without destroying all neutral commerce whatsoever. If Mexico shall prescribe to us what merchandise we shall not sell to French subjects, because it may be employed in military operations against Mexico, France must equally be allowed to dictate to us what merchandise we shall allow to be shipped to Mexico, because it might be belligerently used against France. Every other nation which is at war would have a similar right, and every other commercial nation would be bound to
respect it as much as the United States. Commerce, in that case, instead of being free or independent, would exist only at the caprice of war.1
As regards the purchase of articles of war, the United States have not scrupled to purchase arms and munitions of war in other countries when need required it. At the commencement of the civil war, the Government being short of arms, agents were sent to England to procure them in large quantities. Other agents bought arms in different countries on the continent. Figures are given in the British counter-case which appear to bear out the statement that "the extra supplies of warlike stores thus exported to the northern ports of the United States during the civil war are estimated to represent a total value of not less than £2,000,000, of which £1,500,000 was the value of muskets and rifles alone." Mr. Adams, in a conversation with Earl Russell on the 22d May, 1862, when the latter, in answer to his remonstrances as to supplies sent out from Great Britain to the Confederate States, referred to the large supplies of similar materials obtained on the part of the United States, naively answered that "at one time a quantity of arms and military stores had been bought, as a purely commercial transaction, for the use of the Federal Army, but that the practice had been discontinued at his suggestion, because it prevented him from pressing his remonstrances against a very different class of operations carried on by friends and sympathizers with the rebels, and that the United States had, instead, bought largely from Austria;""because," adds Mr. Adams, "that government had never given any countenance to the insurgents."2
It thus appears that the continental governments also did not consider the sale of arms by their subjects as any infringement of the law of nations.
It seems to me, therefore, that the law relating to contraband of war must be considered not as arising out of obligations of neutrality, but as altogether conventional; and that by the existing practice of nations, the sale of such things to a belligerent by the neutral subject is not in any way a violation of neutrality. Then, how stands the matter as to ships of war?
In principle, is there any difference between a ship of war and any other article of warlike use? I am unable to see any. Nor can I discover any difference in principle between a ship equipped to receive her armament, and a ship actually armed. A ship of war implies an armed ship; for a ship is not actually a ship of war till armed. Of the authors I have cited, and who hold ships of war to be contraband of war, no one of those who wrote before these disputes between the United States and Great Britain had arisen, with the exception of M. Hautefeuille, makes any distinction between ships equipped to receive their armaments, and ships actually armed. M. Hautefeuille, who, as we have seen, refuses to a ship equipped for armament, but not armed, the character of contraband, treats the equipping and arming as a violation of neutrality; but he gives no reason and cites no authority, and seems to me herein—I say it with the utmost respect—inconsistent with himself.
Professor Bluntschli, in the work already cited, lays down, on the subject of ships furnished to a belligerent by the subjects of a neutral power, the following rules:
In article 763 of his proposed code, he says:
L'état neutre ne doit pas seulement s'abstenir de livrer des navires de guerre a l'une des puissances belligérantes; il est aussi tenu d'exercer une surveillance rigoureuse et d'empêcher que des particuliere n'arment des navires de guerre sur son territoire et ne les livrent à l'un des belligérants.
In a note he adds:
En temps de paix, un état peut évidement vendre des navires de guerre a un autre, ou recourir à l'industrie privée des états étrangers. Mais pendant la guerre, la fourniture de navires de guerre constitue évidemment un appui et un renfort accordé aux belligérants. Si l'intention de le faire résulte des circonstances, on devra considérer ces actes comme contraires aux devoirs des neutres, et l'état lésé pourra agir en conséquence.1
In article 764 he says:
Il suffit que l'intention de venir en aide à l'un des belligérants soit manifeste, pour que l'état neutre soit tenu d'intervenir, alors même que l'armement du navire de guerre ou du corsaire ne serait que préparé ou commencé.
In a note he subjoins:
Il n'est pas nécessaire que le navire soit déjà armé. Lorsque les constructeurs, tout en prétendant frêter un navire de commerce, ont l'intention de l'armer en guerre, et lorsque cette intention peut être constatée, ou du moins est vraisemblable, cet acte constitue une violation des lois sur la neutralité. Mais lorsque cette intention ne peut pas être démontrée, on ne saurait incriminer le fait de transformer en navire de guerre, un navire de commerce construit sur un chantier neutre et acheté plus tard par un négociant d'un des pays belligérants. (Wheaton, Intern. Law, p. 562.) Il en est autrement lorsqu'un navire de guerre est vendu à l'un des belligérants à titre entreprise purement commerciale ou industrielle; il y aura dans ce cas contrebande de guerre, mais cet acte ne constituera pas une violation des devoirs des neutres.2
I must observe that these rules, which are of a very stringent character, are not supported by any reasoning of the author, or by any juridical authority. I might add, that there is no ground for saying that they have been generally accepted as international law. Even so distinguished a man as Professor Bluntschli cannot give laws to the world from the professorial chair. Moreover, as I understand him, Professor Bluntschli draws a distinction between the sale of ships with the intention of assisting a belligerent, and of ships sold in the course of a purely commercial transaction.
The first two cited articles would, from the general terms in which they are framed, appear to apply to ships of war by whomsoever they maybe supplied to the belligerent; but from the note to section 764 and the reference to section 765, hereinbefore cited, as to the sale of arms and munitions of war in the country of the neutral, I gather that the professor means to draw a distinction between ships made over to a belligerent, whether by sale or otherwise, for the purpose of assisting his cause, and ships of war sold to a belligerent by neutral subjects in the way of trade.
This is the view taken by Mr. Dana in a note to his edition of "Wheaton's Elements of International Law," which has been reprinted in the documents appended to the American case:
Our rules do not interfere with bona-fide commercial dealings in contraband of war. An American merchant may build and fully arm a vessel, and provide her with stores, and offer her for sale in our own market. If he does any acts as an agent or servant of a belligerent, or in pursuance of an arrangement or understanding with a belligerent, that she shall be employed in hostilities when sold, he is guilty. He may, without violating our law, send out such a vessel, so equipped, under the flag and papers of his own country, with no more force of crew than is suitable for navigation, with no right to resist search or seizure, and to take the chances of capture as contraband merchandise, of blockade, and of a market in a belligerent port. In such case, the extent and character of the equipments is as immaterial as in the other class of cases. The intent
is all. The act is open to great suspicions and abuse, and the line may often be scarcely traceable; yet the principle is clear enough. Is the intent one to prepare an article of contraband merchandise, to be sent to the market of a belligerent, subject to the chances of capture and of the market? Or, on the other hand, is it to fit out a vessel which shall leave our port to cruise, immediately or ultimately, against the commerce of a friendly nation? The latter we are bound to prevent; the former the belligerent must prevent.1
Professor Gola, of Parma, in a recent work, observes:
Lo stesso dicasi ove si trattasse di costruzioni di navi: l'atto lede la neutralità, ove l'impresa si eseguisea dal governo, è invece un' opera d'industria ove si compia da privati imprenditori nei loro cantieri.2
M. Ortolan, who had made no such distinction in the former edition of his work, "Sur la diplomatie de la mer," in the last edition of that work has, with reference to this subject, the following, I cannot help thinking, somewhat extraordinary doctrine:
Si l'on suppose un navire construit sur le territoire neutre, non pas sur commande d'un belligérant ou par suite d'un traité ostensible ou dissimulé avec ce belligérant, mais en vue d'un dessein quelconque, soit de navigation commerciale, soit tout autre, et que ce navire, déjà par lui-même propre à la guerre on de nature à être converti à cet usage, une fois sorti des ports de la nation neutre, soit vendu, dans le cours de sa navigation, occasionnellement, à l'un des belligérants, et se mette à naviguer en destination directs pour ce belligérant: un tel navire dans de telles circonstances tombe uniquement sous le coup des règles relatives à la contrebande de guerre. II est sujet à être arrêté et confisqué par l'ennemi qui pourra s'en emparer, mais sans qu'aucun grief de violation des devoirs de la neutralité puisse sortir de ce fait, contre l'état neutre pour n'avoir pas défendu à ses nationaux de telles ventes ou ne les avoir pas réprimées. C'est une opération de trafic qui a eu lieu, trafic de contrebande de guerre, dout aucune circonstance particulière n'est venue changer le caractère.
Tel fut, en l'année 1800, le cas du navire americain le Brutus, capturé par les Anglais et jugé de bonne prise par la cour d'amiranté d'Halifax.
Mais la situation change; la contrebande de guerre n'est plus la question principale; d'autres règles du droit des gens interviennent et modifient profondément la solution, si l'on suppose qu'il s'agisse de bâtiments de guerre construits, armés ou équipés sur un territoire neutre pour le compte d'un belligérant, par suite d'arrangement pris à l'avance avec lui, sous la forme d'un contrat commercial quelconque: vente, commission, louage d'industrie ou de travail; que les arrangements aient été pris ostensiblement, on qu'ils le soient d'une manière secrète ou déguisée ; car la loyauté est une condition essentielle dans la solution des difficultés internationales, et sous le couvert des fausses apparences il faut toujours aller au fond des choses. Il y a ici, incontestablement, une seconde hypothèse qu'il importe de distinguer soigneusement de la précédente.
Nous nous rattacherons, pour résoudre en droit des gens les difficultés que présente cette nouvelle situation à un principe universellement établi, qui se formule en ce peu de mots: "Inviolabilité du territoire neutre." Cette inviolabilité est un droit pour l'état neutre, dont le territoire ne doit pas être atteint par les faits de guerre, mais elle impose aussi à ce même état neutre une étroite obligation, celle de ne pas permettre, celle d'émpêcher activement, au besoin, l'emploi de ce territoire par l'une des parties ou au profit de l'une des parties belligérantes, dans un but hostile à l'autre partie.
Les publicistes en crédit ne font aucun doute pour ce qui concerne l'armement et l'equipement dans un port neutre de bâtiments de guerre destinés à accroître les forces des belligérants. Ils s'accordent pour reconnaître l'illégalité de ces armements ou équipments, comme une infraction de la part de l'état neutre qui les tolèrerait aux devoirs de la neutralité.
N'est-il pas évident qu'il en doit être de même, a fortiori, de la construction de pareils bâtiments, lorsque cette construction a lieu dans les conditions prévues en notre seconde hypothèse?
So that, according to M. Ortolan, if a ship happens to be ready made and armed, she may be lawfully sold to a foreign belligerent, though with a full knowledge on the part of the seller of the purpose to which she is to be applied; but, if she is made to order, the transaction assumes the opposite character, and is a breach of neutrality. With all
respect for the authority of this distinguished writer, I must decline to adopt a doctrine which rests on so shadowy a distinction.
Professor Bluntschli, undertaking to pronounce a judgment on the subject-matter of this dispute, as it were ex cathedra, in an article in the "Revue de Droit International" of 1870, lays down the following doctrine:
L'état neutre qui veut garantir sa neutralité doit s'abstenir d'aider aucune des parties belligérantes dans ses operations de guerre. Il ne peut prêter son territoire pour permettre a l'une des parties d'organiser en lieu sûr des entreprises militaires. Il est obligé de veiller fidèlement à ce que des particuliers n'arment point sur son territoire des vaisseaux de guerre, destinés à être livrés a une des parties belligérantes. (Bluntschli, Modernes Völkerrecht, section 763.)
Ce devoir est proclamé par la science, et il derive tant de l'idée de neutralité que des égards auxquels tout état est nécessairement tenu envers les autre états avec lesquels il vit en paix et amitié.
La neutralité est la non-participation à la guerre. Lorsque l'état neutre soutient un des belligérants, il prend part à la guerre en faveur de celui qu'il soutient, et dès lors il cesse d'être neutre. L'adversaire est autorisé à voir dans cette participation un acte d'hostilité. Et cela n'est pas seulement vrai quand l'état neutre livre lui-même des troupes ou des vaisseaux de guerre, mais aussi lorsqu'il prête à un des belligérants un appui médiat en permittant, tandis qu'il pourrait l'empêcher, que, de son territoire neutre ou envoie des troupes ou des navires de guerre.
Partout où le droit de neutralité étend le cercle de son application, il restraint les limites de la guerre et de ses désastreuses conséquences, et il garantit les bienfaits de la paix. Les devoirs de l'état neutre envers les belligérants sont en substance les mêmes que ceux de l'état ami, en temps de paix, vis-à-vis des autres états. Aucun état ne peut non plus, en temps de paix, permettre que l'on organise sur son territoire des agressions contre un état ami. Tous sont obligés de veiller à ce que leur sol ne devienne pas le point de départ d'entreprises militaires, dirigées contre des états avec lesquels ils sont en paix.
I entirely agree in all that is thus said by this able jurist—that is, if I properly apprehend his language, and am right in understanding it to apply not to the sale of ships of war, simpliciter, but to the sending out of troops and armed ships for the purpose of what the learned professor terms "military enterprises," and to the "organizing of aggressions against a friendly state."
Another eminent jurist, who has espoused the cause of the United States, in a very able review of the work of Professor Mountague Bernard, and whose opinion is referred to by the United States as an authority in their favor, M. Rolin Jacquemyns, does not, so far as I collect, deny the legality of the sale of ships of war, but rests his opinion on the general circumstances connected with the construction and escape of the Alabama. But the spirit in which this author writes will be seen from the following passage:
Il eût dans tous les cas été digne d'un jurisconsulte de la valeur de M. Bernard de ne pas se borner à examiner cette grave question des devoirs de la neutralité au point de vue du droit positif existant. C'est par l'opinion hautement émise de savants comme lui que les idées générales en matière de droit sont appelées à se rectifier et à se compléter. Or, s'il y a une chose que chaque guerre nouvelledémontre, c'est le caractére, non-seulement insuffisant, mais fallacieux de la vieille définition: neutrarum partium. Si au début de cette dernière et épouvantable guerre de 1870, l'Angleterre, au lieu d'être obstinément neutrarum partium, avait clairement désapprouvé l'offensive inique de la France, est-ce que les intérêts de la justice et de la paix n'auraient pas été mieux servis? L'idéal du personnage neutrarum partium, c'est le juge qui, dans l'apologue de l'huître et des plaideurs, avale le contenu du mollusque et adjuge les écailles aux deux belligérants. Il n'est d'aucun parti, mais il s'engraisse scrupuleusement aux dépens de tous deux. Une telle conduite de la part d'un grand peuple peut être aussi conforme aux précédents que celle du vénérable magistrat dont parle la fable. Mais quand elle se fonde sur une loi positive, sur une règle admise, c'est une preuve que cette loi ou cette règle est mauvaise, comme contraire à la science, à la dignité et à la solidarité humaine.1
This reasoning may be very well deserving of attention for the future; but, for the present purpose, when the authority of M. Rolin Jacquemyns as to the culpability of Great Britain is cited, I must protest against the question being determined not according to "existing positive law," but to the opinion of "savants " as to what the law should have been, or should now be made. The tribunal cannot, I apprehend, adopt such a principle informing its judgment. Its functions are not to make the law, but to decide according to the rules of the treaty, with the light which the acknowledged principles of international jurisprudence and the established usages of nations may afford for its assistance. The occasion may be a tempting one for giving effect to speculative opinions or individual theories. But a decision founded on such a principle would not insure the approbation of wise and judicious minds, or command the respect of those who might suffer from a judgment which would be at variance with the first principles of equity and justice.
Let us see what has been the practical view taken of the subject in England or America. As far back as the year 1721, ships of war having been built in England, and sold to the Czar of Russia, then at war with Sweden, and complaint having been made by the Swedish minister, the judges were summoned to the House of Lords, and their opinion was asked, whether by law the King of England had the power to prohibit the building of ships of war, or of great force for foreigners, in any of His Majesty's dominions. And the judges, with the exception of one, who had formed no opinion, answered that the King had no such power. It is plain that, if the sale of such vessels had been an offense against international law, the King would have had power to prevent it by the prosecution of the parties building and selling such ships, as offenders against the municipal law, as the offense would have been a misdemeanor at the common law.
It appears that Chief Justice Trevor, and Parker, afterwards Lord Chancellor, had given the like opinion seven years before.1
The judgment of Judge Story in the well-known case of the Santissima Trinidad,2 shows that the sale of armed ships of war has never been held to be contrary to law in America. In that case a vessel called the Independencia, equipped for war and armed with twelve guns, had been sent out from the American port of Baltimore, upon a pretended voyage to the northwest coast, but in reality to Buenos Ayres, then at war with Spain, with instructions to the supercargo to sell her to the Buenos Ayres government if he could obtain a certain price. She was sold to that government accordingly, and, having been commissioned, was sent to sea and made prizes. She afterward put into an American port, and having there received an augmentation of her force, again put to sea and captured a prize. The validity of this prize was questioned in the suit on two grounds: 1st. That the sale of the vessel to a foreign government by American citizens, for the purpose of being used in war against a belligerent with whom the United States were at peace, was a violation of neutrality and illegal; 2d. Because the capture had been made after an augmentation of the force of the vessel in a port of the United States. The capture was held invalid on the latter ground. Upon the first, the judge delivered judgment as follows:
The question as to the original illegal armament and outfit of the Independencia may be dismissed in a few words. It is apparent, that though equipped as a vessel of war, she was sent to Buenos Ayres on a commercial adventure, contraband, indeed, but in no shape violating our laws or our
national neutrality. If captured by a Spanish ship of war during the voyage, she would have been justly condemned as good prize for being engaged in a traffic prohibited by the law of nations. But there is nothing in our laws, or 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, and which only exposes the person engaged in it to the penalty of confiscation. Supposing, therefore, the voyage to have been for commercial purposes, and the sale at Buenos Ayres to have been a bona-fide sale, (and there is nothing in the evidence before us to contradict it,) there is no pretense to say that the original outfit on the voyage was illegal, or that a capture made after the sale was, for that cause alone, invalid.
It is now sought to shake the authority of this judgment by saying that it was unnecessary to the decision of the cause, as the prize was held to be invalid on the other ground; but it was, nevertheless, a solemn judgment upon a point properly arising in the cause, and, so far as I am aware, it has never been questioned.
It is indeed alleged (but for the first time) in the American case that the authority of this decision is to be looked upon as overruled or controlled by a judgment given by the same court in the case of the Gran Para. Now, the latter judgment was a judgment of the same court, (of which, therefore, Mr. Justice Story was himself a member,) and was pronounced on the very next day. We are told in the case of the United States, that the cases were argued, the one on the 20th, the other on the 28th of February, 1822; that the judgment in the case of the Santissima Trinidad was pronounced on the 12th of March, that in the case of the Gran Para on the ensuing day, the 13th. It is said, and truly, that "there can be no doubt they were considered together in the consultation-room," and lawyers are gravely asked to believe that it was intended by the second judgment to overrule or qualify the doctrine involved in the first. No English or American lawyer could entertain the notion for a moment that, if the same court had intended to overrule, or even to qualify, the judgment given immediately before, it would not have referred to it in terms and given its reasons for so sudden a change in its views of the law. But the truth is—and I am at a loss to understand how the American Counsel can have failed to overlook this, or to call attention to it when citing the decision, that so far from overruling or affecting the judgment in the Santissima Trinidad, the case of the Gran Para had nothing in common with it beyond that of being a suit for the restitution of prize. It was not the case of the sale of a ship to a foreign government at all. It was simply the case of an American privateer armed in defiance of American law, and cruising under a fictitious commission, the property in her still remaining unchanged in the American citizen by whom she had been fitted out. The great importance of this distinction will be seen in another part of this case.
In a learned and able article in the well-known publication, the "American Law Review" of January, 1871, the writer, after referring to the case of the Santissima Trinidad as "a famous and leading case," states the law as follows:
It may be declared as indubitable that the pure unalloyed bargain and sale of a ship' even a ship of war, to a belligerent is legal by the rules of international law; that such a ship is, however, contraband of war, and if captured after sale on her way toward delivery, or before sale on her way toward a market where she is intended to be sold to a belligerent, she will be properly condemned. Neutrality acts have not been intended to change this state of the law, but only to furnish sufficient means for preventing its abuse. Our original proposition that the doctrine of contraband of war does not operate as a restriction upon trade, upon dealings which are purely commercial, remains correct, even in this matter of war vessels.
In this view of the law I am glad to have the concurrence of our dis-
tinguished colleague, Mr. Adams, who, writing to Earl Russell on the 6th of April, 1863, states, with reference to certain American authorities which Lord Russell had appealed to:
The sale and transfer by a neutral of arms, of munitions of war, and even of vessels of war, to a belligerent country, not subject to blockade at the time, as a purely commercial transaction, is decided by these authorities not to be unlawful. They go not a step further; and precisely to that extent I have myself taken no exception to the doctrine.1
This being the present state of international law on this subject, if it is desirable to introduce new rules, it must be done by the common consent of nations, not by the speculative doctrines of theorists, however distinguished.
But is it desirable that it should be altered, and that obstacles to the industry and trade of neutral nations should be created?
Une grande partie du commerce de quelques nations européennes, telles que les Suédois, les Norvégiens, et les Russes, consiste en marchandises nécessaires pour la guerre maritime, pour la construction et pour l'équipement d'une flotte; elles vendent en temps de paix, a quiconque en a besoin, du fer, du cuivre, des mâts, des bois, du goudron, de la poix, et des canons, enfin des navires de guerre entiers. Quelles raisons pourrait-il y avoir de priver ces nations de leur commerce et de leur manière de subsister, à l'occasion d'une guerre à laquelle ils ne prennent aucune part? Il n'y a dans le code de la justice et de l'èquité rien en faveur d'une telle protection. Il est donc nécessaire d'établir, comme maxime fondamentale de tout droit, que, les peuples neutres devant et pouvant licitement continuer le commerce qu'ils font en temps de paix, on ne doit faire aucune distinction de denrées, de marchandises, et de manufactures, quoique propres à la guerre, et que, par cette raison, la vente et le transport aux parties belligérantes en sont permis, si le commerce actif et passif était établi en temps du paix, sans qu'on puisse prétendre, en aucune manière, que la neutralité soit violée, pourvu que cela se fasse sans animosité, sans préférence et sans partialité.
I cannot but feel the force and justice of these observations. I ask in like manner, "Why—unless, indeed, on account of reasons of state affecting the interests of the neutral state itself, in which case private interests must give way to those of the public—are the armorers of Birmingham or Liege, or the shipbuilders of London or Liverpool, to have their business put a stop to because one of their customers happens to be engaged in war with another state? It is not enough to say that but for the war the demand for the articles in question would not have arisen. From whatever cause it may proceed, increased demand is the legitimate advantage of the producer or the merchant, and it is by the advantage which periods of increased and more active demand bring with them that the loss arising from occasional periods of stagnation is balanced and made good.
The authors who desire to put further restraints on the free commerce of neutrals than international law has hitherto done, appear to me to think too much of the interests of belligerents, who are the disturbers of the world's peace, and to be too unmindful of the interests of neutral nations, who are simply seeking occupation for their industry and commerce, indifferent by whom they, are employed. They seem to think that the belligerent is granting an indulgence or conferring a favor on the neutral in allowing him to remain a stranger to the war, which the grateful neutral should be too glad to purchase by the sacrifice of all rights at all incompatible with the convenience of the belligerent.
M. Hautefeuille, indeed, invokes humanity, and would prohibit the sale of articles of warlike use in order to prevent and put an end to war. But if considerations of humanity are to be taken into account, it is obvious that the sale of such things should be prohibited in time of
peace, as well as of war. They are not the less available in time of war because bought in time of peace.
The armorer or the shipbuilder who is thus required to close his establishment to the belligerents when war arises, may continue to manufacture and sell, undisturbed, his instruments of destruction down to the very hour when war is proclaimed. Had Prussia, for instance, anticipated the attack of France as likely to occur so soon, and had desired to procure a fleet, she might have resorted to the shipwrights' yards of England till she possessed ships enough to cope with her formidable adversary on the seas. But let war but be proclaimed, and according to these views the work becomes at once criminal, the workman's hammer must be arrested, the shipwright's yard closed. There may be reasons of state in certain instances—as according to British and American views in the case of ships—for putting a restraint on the freedom of trade, but it seems idle to base it on the score of humanity. The effect would simply be that a government meditating the invasion of another country would have to provide itself in time. The neighbor upon whom it thus brings war on the sudden, and who may be comparatively unprepared, is not to be at liberty to seek the materials of war elsewhere, but is to be left at the mercy of the invader. Peaceful nations would thus be at the mercy of others more ambitious and warlike and better prepared than themselves. The weak would be sacrificed to the strong. Let me suppose a people rising in a just and righteous cause. I will not offend the patriotic susceptibility of my honorable and esteemed colleague by suggesting, for a single instant, even hypo-thetically, the possibility that the cause of the insurgents might have been such a one—I will take what he will readily admit to have been so, the separation of the United States from the mother country. Let me suppose that, while Great Britain had her fleets prepared, her troops armed, her arsenals well stored, America had neither ships nor arms, nor munitions of war, with which to resist the superior forces of her adversary. Would it have been in the interest of humanity that she should be shut out from the markets of the world? An appeal to considerations of humanity has no doubt something very captivating about it; but I question very much whether humanity would not lose more than it would gain by the proposed restraint on the commercial freedom of nations.
The case, however, becomes essentially different when a ship thus equipped and armed is not sent out to be taken to the port of the belligerent purchaser, but is sent to sea with officers and a fighting crew for the purpose of immediate warfare. Under such circumstances the transaction ceases to be one of mere commerce, and assumes the form of a hostile expedition sent forth from the territory of the neutral. Such an expedition is plainly a violation of neutrality, according to international law, and one which the neutral government is bound to do its best to prevent.
But what if, in order the better to avoid observation and detection, the vessel is sent forth, without its armament, without its war crew, and these, sent to it by another or different vessels, are put on board of it in some place or water bejond the jurisdiction of the neutral! In my opinion, except so far as the question of diligence is concerned, as to which it may form a very material element, this makes no difference. The ship, the armament, the crew, though sent out separately, form each of them part of one and the same enterprise or undertaking. Taken together, they constitute a hostile expedition and must be treated as such. It is as though a hostile force were
sent by sea to invade an enemys territory, and each arm of the force so sent, infantry, cavalry, artillery, were embarked in different ships. The whole would still form one expedition. So here, ships, guns, crew, are each a part of one entire whole to be employed and used in furtherance of one common design. This is happily expressed in the American Law Review, in the article already cited: "It was not," writes the author, "because the Messrs. Laird sold a war ship to the confederates that we have a claim against England for a breach of international law; but it was because collateral arrangements for completing the equipment and armament of the ship so sold, by placing on board officers and crew, guns and provisions, rendered the entire procedure, in fact, the inception of a hostile undertaking from the confines of a neutral country."
Of course the question may become one of degree. The interval of time which might elapse between the sending out of the ship and that of the crew, the distance between the neutral territory and the place at which the war-crew are to join, the possible fact that it was originally intended to procure a crew in some other country than that of the neutral, the occurrence of intermediate circumstances, might fairly lead to the inference that there was no present intention to apply the vessel to the purpose of war, which in my mind is an essential element in ascribing a belligerent character to that which might otherwise have remained a purely commercial transaction.
An expedition of this kind being an undoubted violation of neutrality, every one will agree that it is the duty of the neutral government, if it knows that such expedition is about to leave its waters, to use due diligence to prevent it. Nor does the duty of the neutral government end here. It is also its duty to use due diligence to make itself informed as to the true character and destination of a vessel, where there is reasonable ground to suspect that such character and destination are unlawful.
The duty of the neutral government in this respect appears to me to involve three things: first, that the law of the neutral shall be sufficient to enable the executive to prevent breaches of its duties as a neutral; secondly, that, where its application is called for, the law shall be put in force honestly and in good faith; thirdly, that all proper and legitimate means shall be used to detect an intended violation of the law, so as by the application of the law to prevent it.
Having thus seen what is the present state of international law, according to the views of leading jurists and the practice of nations, more especially that of England and America, the parties to the present dispute, we are enabled to form an opinion as to how far the assertion in the case of the United States that the English foreign-enlistment act, which, going far beyond the restraints which international law imposes on the neutral subject, prohibits even the fitting-out and equipping of vessels for the purpose of war, is only a recognition of duties imposed by international law. The proposition is altogether untenable.
It is, in the first place, altogether at variance with what we know historically to have been the origin both of the American acts of 1794 and 1818, and of the British act of 1819, to say that either of these acts arose out of, or was passed to prevent, the building or equipping or arming of ships of war to be sold to a belligerent.
The American act of 1794 was passed in consequence of the proceedings of the French envoy and consuls in the United States, on the breaking out of the war between Great Britain and France, in procuring privateers to be fitted out and manned by Ameri-
can citizens, and furnishing them with letters of marque as privateers. It was not a question of fitting out ships to be sold to the French government, but of fitting out American vessels, the property of American owners, and manned by American crews, to prey, under commissions as privateers, upon the commerce of a friendly nation.
In like manner, the American act of 1818 arose out of the precisely similar conduct of American citizens in fitting out American vessels, manned by American crews, against the commerce of Spain and Portugal, under commissions as privateers from the de facto governments of the revolted colonies of the two countries.
The Spanish minister had loudly complained that some thirty vessels, specifically named, the property of American citizens, and belonging to ports of the Union, were thus preying on Spanish commerce.
The representative of Portugal made similar complaints.
This practice carried on, on so large a scale, created great scandal; and after the complaints had gone on for two years, the act of 1818 was passed to put a check on it, if possible. This act, in addition to the enactments of that of 1794, required that a bond in double the value of the ship should be given in the case of any armed vessel, owned in whole or in part by American citizens, going out of an American port, that the vessel should not be employed against a foreign government; and gave power to the collectors of customs to detain any vessel, built for war, leaving an American port, under certain suspicious circumstances specified in the act. It is plain that this statute, like its predecessor, was directed against privateering carried on by American citizens against countries with which the United States were at peace. Building or fitting out ships of war for a belligerent had not come into question at that time at all.
In like manner the British act of 1810 had in view, not the prevention of building or equipping ships for a belligerent, in the way of trade, but the prevention of military or naval expeditions on behalf of the revolted colonies, or malcontent subjects of Spain. Its origin is briefly stated in the report of Lord Tenterden to the neutrality laws commission:
The British foreign-enlistement act may be said to have arisen from the provision of a treaty; that with Spain of the 28th of August, 1814.
This treaty, or, as it is called, "additional articles to the treaty of July 5, 1814," contains the following article:
"ARTICLE III. His Britannic Majesty, being anxious that the troubles and disturbances which unfortunately prevail in the dominions of His Catholic Majesty in America should entirely cease, and the subjects of those provinces should return to their obedience to their lawful sovereign, engages to take the most effectual measures for preventing his subjects from furnishing arms, ammunition, or any other article to the revolted in America."
In 1818 the reactionary policy of King Ferdinand, the prohibitory duties imposed by him on British commerce, and the ingratitude with which he treated British officers and others who had served his cause in Spain, had provoked a great deal of irritation in England; and there was a considerable party in the House of Commons, headed by Sir James Macintosh, who were prepared to support the claims of the Spanish American colonies to independence.
Expeditions were said to be in preparation for rendering active assistance both to the malcontents in Spain and to the rebels in America, in spite of a proclamation forbidding such expeditions, which had been published in 1817; and the Government consequently found that it was necessary, in order to keep good faith with Spain and to prevent infractions of British neutrality, to bring in an act of Parliament to provide for the case which now for the first time arose in modern history, of Great Britain being neutral at the time of a great maritime war.1
That it was against armaments going out from the shores of Great Britain that the measure was directed is plain from some of the argu-
ments used by Mr. Canning in the course of the debate on the bill. Thus he says:
If a foreigner should chance to come into any of our ports, and see all this mighty armament equipping for foreign service, he would naturally ask, "With what nation are you at war?" The answer would be, "With none."
"For what purpose, then," he would say, "are these troops levied, and by whom?" The reply of course must be, "They are not levied by government; nor is it known for what service they are intended; but, be the service what it may, government cannot interfere." Would not all that give such a foreigner a high idea of the excellence of the English constitution? Would it not suggest to him that for all the ordinary purposes of a state there was no government in England? Did the honorable and learned gentlemen not think that the allowing of armaments to be fitted out in this country against a foreign power was a just cause of war?1
Mr. Robert Grant, another member of the government, said that—
Every government, in its foreign relations, was the representative of the nation to which it belonged, and it was of the highest importance to the peace of nations that governments should be so considered. Nations announced their intentions to each other through the medium of their rulers. Hence every state knew where to look for expressions of the will of foreign nations; where to learn whether war or peace was intended; where to demand redress for injuries, and where to visit injuries unredressed. But all this system was inverted and thrown into confusion, if the government might act in one way and the nation in another. All this system was at an end if, while we were professedly at peace with Spain, she was to be attacked by a large army of military adventurers from our own shores—a sort of extra-national body— utterly irresponsible—utterly invulnerable, except in their own persons—for whose arts no redress could be demanded of the British government—who might burn, pillage, and destroy, then find a safe asylum in their own country, and leave us to say, "We have performed our engagements—we have honorably maintained our neutral character."2
But the language of these acts being large enough to embrace a case of the equipping a vessel for a foreign belligerent, the foreign-enlistment act has been made available for the purpose of preventing a traffic which is calculated to cause embarrassment to a government pressed by the remonstrances of belligerents. And this act having been so often appealed to and discussed, a notion has sprung up that the equipment of vessels of war, though in the way of trade, is a violation of neutrality, while, in fact, it is only a violation of the municipal law.
Mr. Dana, in the passage before cited, puts the matter on the right ground.
Again, it is idle to contend that alterations in the law, since made by statute, to give a greater power to the executive in dealing with suspected vessels, are to be taken as the measure of the obligations incumbent on the British government by international law. Catching at a few words in the report of the royal commissioners, who, in recommending certain statutory additions to the law, add: "In making the foregoing recommendations we have not felt ourselves bound to consider whether we were exceeding what could actually be 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 full conformity with Your Majesty's international obligations," the United States desire that it shall be taken, notwithstanding that the commissioners expressly say that their recommendations are independent of any considerations of international law; that these statesmen and learned jurists meant that without these additions the law of England failed to come up to the exigencies of international law. Such an argument is really undeserving of serious notice.
Equally unfounded is the assertion that the provisions of the foreign-enlistment act are only a statutory declaration of the common law of England. The enactment of that statute could only be declaratory of the common law, if co-extensive with tbe obligations of international law; whereas, in fact, it went far beyond them. The opinion of the judges, pronounced as far back as the beginning of the last contrary, that even the sale of armed ships was not contrary to the law of England, shows the rashness and the incorrectness of this assertion.
But it is claimed on behalf of the United States that, whether the foreign-enlistment act was or was not more than co-extensive with international obligations, the United States were entitled, irrespectively of the rule of the treaty of Washington, to have it put in force in all its rigor for their protection. This involves the important question whether, where the municipal law of the neutral is more stringent than the international law, a belligerent can claim, as of right, the putting in force of the municipal law in his behalf, and make the omission to do so a ground of grievance, as founding a right of redress at the hands of a neutral government. A few short considerations will serve to dispose of this question, which, indeed, seems to answer itself.
When a Government makes its municipal law more stringent than the obligations of international law would require, it does so, not for the benefit of foreign states, but for its own protection, lest the acts of its subjects in overstepping the confines, oftentimes doubtful, of strict right, in transactions of which a few circumstances, more or less, may alter the character, should compromise its relations with other nations. It was in this spirit and with this object that the foreign-enlistment act was passed, as is shown by its preamble, which is in the following terms:
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, 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 as 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:
Now, it is quite clear that the obligations of the neutral state spring out of, and are determined by, the principles and rules of international law, independently of the municipal law of the neutral. They would exist exactly the same, though the neutral state had no municipal law to enable it to enforce the duties of neutrality on its subjects. It would obviously afford no answer on the part of a neutral government to a complaint of a belligerent of an infraction of neutrality, that its municipal law was insufficient to enable it to insure the observance of neutrality by its subjects, the reason being that international law, not the municipal law of the particular country, gives the only measure of international rights and obligations. While, therefore, on the one hand, the municipal law, if not co-extensive with the international law, will afford no excuse to the neutral, so neither, on the other, if in excess of what international obligations exact, will it afford any right to the belligerent which international law would fail to give to him.
In one respect, and in one respect only, does the municipal law, when in excess of international law, give a right to the belligerent. Equality being of the essence of neutrality, he has a right to insist that the neu-
tral subject shall equally be compelled to keep within the municipal law in dealing with the adversary as when dealing with himself. A belligerent is also beyond question perfectly at liberty to urge upon the neutral government, in the way of solicitation or even of remonstrance, to enforce the municipal law; but so long as it is not enforced against himself he has no right to redress, because it is not put in force against his enemy.
I am at a loss exactly to understand for what purpose these points have been brought forward, and so strenuously insisted on, in the American arguments. For, the rule prescribed to us by the treaty, and to the benefit of which the United States are, therefore, entitled at our hands, is in the very terms of the foreign-enlistment act. I presume the purpose was to create a foundation for the imputation against Great Britain of not having acted in good faith. In that respect I may have to advert to these arguments again. For my present purpose it is enough to have cleared the ground of them.
In like manner when it is sought, in the case of the United States, to make the Queen's proclamation of neutrality the measure of the international obligations of her subjects, every lawyer ought to know that this is to give to a royal proclamation an authority which it does not possess. The purpose of such a proclamation, used only in great conjunctures, is to remind the subject of the provisions of the law, and to warn him against breaking it; and if, after such warning, a man offends against the law, his offense is aggravated by the fact that he has set the injunctions of the sovereign at defiance; but such a proclamation cannot make or add to the law, or alter it in the smallest particular. The proclamation of 1861 was in the accustomed form. It drew attention to the enactments of the foreign-enlistment act, and warned all persons subject to British law that, if they did any acts in contravention of that act, or in violation of the law of nations, as by enlisting in the military service, or serving in any ship of war or transport, of the contending parties; or going or engaging to go beyond the seas for the purpose of enlisting, or procuring, or attempting to procure, within Her Majesty's dominions, others to do so; or fitting-out, arming, or equipping any vessel to be employed as a ship of war, or privateer, or transport, by either of the contending parties; or by breaking or endeavoring to break any blockade lawfully and actually established by or on behalf of either of the said contending parties; or by carrying officers, soldiers, dispatches, arms, military stores, or materials, or any article or articles considered and deemed to be contraband of war, according to the law or modern usage of nations, for the use or service of either of the contending parties—all persons so offending would incur and be liable to the several penalties and penal consequences by the said statute or by the law of nations in that behalf imposed or denounced. The Queen's subjects are further warned that all persons entitled to her protection, if they should misconduct themselves in the premises, would do so at their peril and of their own wrong, and that they would in nowise obtain any protection from Her Majesty against any liabilities or penal consequences.
The effect is that persons are warned that infractions of the foreign-enlistment act will be visited with the penalties of that statute, while acts within the penalties of international law will be liable to those penalties, (namely, seizure and confiscation of property,) and that against the latter penalties no protection from the Crown must be expected.
But the proclamation contains no prohibition of these latter acts,
namely, dealing in contraband of war, or breaking blockade; nor, if it did, would such prohibition make such acts an offense: such a proclamation has never been understood by British statesmen or lawyers as making either of these things an offense against the municipal law, or as what the government was called upon to prevent, or would be justified in attempting to prevent.
Nor have similar proclamations of Presidents of the United States been dealt with as imposing additional obligations on American citizens, or as subjecting them to additional penalties, or as carrying the obligations of the state further than those imposed by international law. The American authorities which I have cited establish this beyond all possibility of controversy.
To return to the subject of the equipment of vessels. Though I have thought it desirable, with a view to other parts of this case, to work out the question of neutral commerce to its full extent, and though I have come to the conclusion that by the general law of nations the sale of a ship of war, though intended for the use of a belligerent, is not, when merely a commercial transaction, a breach of neutrality, yet, as Great Britain has consented that the mere equipping of such a ship, though done in the way of trade, shall be taken to have been a breach of neutrality which the British government was bound to use due diligence to prevent, I agree with the rest of the tribunal that we must for the present purpose, in respect of the fitting out and equipping of vessels, take the rules of the treaty as the test of the alleged omissions and consequent liability of the Queen's government.
Though of opinion that Her Majesty's government were quite right in saying that the rules laid down by the treaty are not such as international law would have prescribed at the time these claims arose, I agree that we are bound by the rules, and that it is our duty to give full effect to them in dealing with these claims. However great and unexampled the concession made by Great Britain in consenting to be bound, in respect of past international obligations, by rules which had no existence in international law when the breaches of neutral obligations complained of are alleged to have occurred, I still think that we must proceed in this inquiry as though the rules of the treaty had been, either by international law or by convention between the two countries, binding on Great Britain at the time of the civil war. I cannot but concur with Mr. Evarts that we must give the same effect to those rules as regards the past as we should give to them if dealing with a case which had arisen since they were agreed to by the two nations, nor do I indeed understand this proposition to be disputed by the counsel on the part of Great Britain. The question is whether due diligence was used by the British government to satisfy the exigency of the obligations prescribed by those rules.
I proceed, then, to consider what is this "due diligence" which the British government admits that it was bound to apply to prevent the fitting out and equipping of the vessels in question.
I apprehend that such diligence would be neither greater nor less than any other neutral government would be bound to apply to the preventing of any breach by its subjects of any head of neutral duty prescribed by international law.
The difficulty of the position is, that the question has not hitherto come within the range of juridicial discussion on subjects connected with international law. Hitherto, where a government has acted in good faith, availing itself fairly of such means as were at its disposal, it has not
been usual to consider it responsible to a belligerent government for acts of its subjects that might have eluded its vigilance, or that the degree of diligence exercised by it should be submitted to judicial appreciation. And no country has insisted more strongly on this as the limit of national responsibility than that of the United States. We must endeavor to find a solution for ourselves.
As I have already observed, I cannot agree that the question of what is "due diligence" should be left to the unassisted mind of each individual arbitrator; nor can I agree that the solution is to be found in the facts of each individual case; and though judges may be often disposed to apply the maxim, to which our honorable president has more than once referred, ex facto jus oritur, it is, I think, one which must not be pushed too far. I agree with M. Troplong, who, writing on this subject with reference to civil law, after referring to the different opinions of jurists on the subject of diligence, says :
Il est vrai que jusqu'à présent les tribunaux se sont montrés assez indifférents sur ces disputes de la chaire; mais peut-être pourrait-on leur faire le reproche de n'avoir amorti la vivacité de la question qu'en étouffant tout ce qui est discussion de système et point de droit, sous la commode interprétation des faits, et sous un équitable mais facile arbitraire. Néanmoins, dans cette matière, comme dans toutes les autres, il y a des règles qu'il faut se garder de dédaigner: elles aident le magistrat, elles font luire de précieuses lumières pour ceux qui ont mission de discuter sur les faits et de les juger. Ces règles m'ont paru simples et judicieuses; je vais les exposer comme je les entends; dans tous les cas, et dussé-je me tromper, je prie le lecteur de ne pas m'adresser, comme fin de non-recevoir, le reproche de me livrer à d'oiseuses digressions. De tous les systèmes, le moins excusable, à mon avis, c'est celui qui, sous prétexte de fuir l'esprit de système, se fait une loi de n'en avoir aucun.1
It seems to me, therefore, right, before proceeding to deal with the facts, to seek in the domain of general jurisprudence for principles to guide us in judging how far the obligations of Great Britain have or have not been satisfied.
No branch of law has been the subject of more discussion among juridical writers than that of diligentia and its correlative culpa, the latter being neither more nor less than the absence of the former. I was prepared to expect, from the able men who have prepared the pleadings of the United States, some assistance to guide us to right conclusions as to the standard of diligence required of a neutral government for insuring the obedience of its subjects in matters of neutrality. But after a vague statement that "the extent of the diligence required to escape responsibility is, by all authorities, gauged by the character and magnitude of the matter which it may effect, by the relative condition of the parties, by the ability of the party incurring the liability to exercise the diligence required by the exigencies of the case, and by the extent of the injury which may follow negligence,"2 the only authority cited in any detail is that of an obsolete author, whose exposition of the Roman law has been exploded by modern science. After this, the case breaks out into the following vague and declamatory statement, not of what the law is, but of what the United States Government desire it shall be understood to be:
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 on the soil of the neutral against its will, and thus possi-
bly 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 find them identical with the measure of duty which Great Britain had previously admitted.1
This is, of course, to beg the whole question in dispute. But it is obvious that a matter of so much importance, as lying at the very root of this inquiry, requires a more logical and precise consideration than the foregoing rhetorical statement presents.
The jurists of the seventeenth century, among whom Vinnius occupies a prominent place,2 divided the diligentia and corresponding culpa of the Roman law into three degrees. Thus we have culpa lata, levis, levissima, taking the intermediate degree, or culpa levis, as being the absence of the diligence which a man of ordinary prudence and care would apply in the management of his own affairs in the given circumstances of the case. Though attacked by Donellus, this tripartite division of diligence and default held its ground among juridical writers for a considerable time; but on the formation of the French code, the practical good sense of those by whom that great work was carried out, so visible in their discussions, induced them to discard it, and to establish one common standard of diligence or care as applicable to all cases of civil obligation, namely, that of the "bon père de famille," the "diligens paterfamilias" of the Roman digest. The code Napoleon has been followed in the codes of other countries. Among others, the Austrian code has lately adopted the same principle.3
The juridical view, too, of the earlier writers was not destined to stand its ground. After it had been assailed by Thibaud and Von Lohr, Hassé, in a most learned and able treatise, "Die Culpa des römischen Rechts," thoroughly exposed its unsoundness, and his views have since been followed by a series of German jurists, including Professor Mommsen in his well-known work "Beiträge zum Obligationsrecht."4
French authors have for the most part taken the same view. Commentators on the code, Duranton, Ducarroy, Troplong, and lastly M. Demolombe, in his great work, the "Cours du code civil," have agreed that there can only be one standard for the diligence required in the affairs of life, where the interests of others are concerned, namely, that of men of ordinary capacity, prudence, and care.
"Qu'est ce que la diligence d'un bon père de famille?" asks M. Troplong:5
C'est la diligence de celui qui, comme le dit Heineceius, tient le milieu entre l'avare aux cent yeux et l'homme négligent et dissipé. C'est dans le système dont M. Ducaroy est l'organe, et que j'adopte pleinemet, la diligence qu'un individu, aussi diligent que les hommes le sont ordinairement, apporte à la conservation de ce qui lui appartient. On voit qu'en ce point les deux systèmes se rencontrent, et conduisent à une même définition—c'est-à dire, à ce juste milieu qui est dans la nature de l'humanité.
"The only thing to be considered," says Professor Mommsen, "is whether the default is such as does not occur to a diligent father of family in general." " The care to be taken is 'qualem diligens pater familias suis rebus adhibere solet.' "
After distinguishing between culpa in criminal and in civil cases, the same learned writer says:
It is important, therefore, not so much to distinguish the degree of culpa, but rather to decide the starting-point at which responsibility for inattention and negligence commences.
This starting-point is settled according to one rule for all those cases in which there exists, not a simple responsibility for dolus, (and culpa lata,) but where culpa is to be imputed; culpa being admitted in those cases where the conduct falls short of the measures which a diligens paterfamilias is in the habit of observing in his affairs.
Only under some few obligatory conditions is a decision more favorable to the debtor admissible, in so far that in these cases he is allowed to excuse himself from the responsibility, by proof that in his own affairs he is by habit equally negligent.1
"The ordinary conduct of an intelligent, prudent, and careful Hausvater, of a 'bonus et diligens paterfamilias,'" says Rivier in the Rechtslexicon of Holzendorff, "affords the normal measure of the obligation of diligence. He who so conducts himself is in general free from all reproach. If he acts otherwise, he is in culpa and responsible."2
"The measure," says Dr. Windscheid, "by which to determine whether particular conduct is open to the charge of negligence or not is the conduct of men in general."3
Professor Unger, in his "System des österreichischen allgem. Privatrechts,"4 thus writes of culpa levis, according to Austrian law:
Culpa levis consists in the omission of that care which an attentive and judicious head of a family regularly observes, (diligentia diligentis partisfamilias.) The want of this care, this kind of culpa, is generally understood, when speaking merely of oversight, of culpa simply. The observance of a higher degree of care than this is not required; this is the lightest offense for which a man can be made responsible ; a culpa levissima, going beyond culpa levis, does not exist either according to general or to Austrian law. The culpa levis forms the boundary of responsibility. It is by itself omnis culpa; on the other side of this limit begins the province of accident, for which the actors are not held liable.
The civil code treats of this culpa levis in § 1297, where it states the highest degree of diligence and attention required to be that "which can be exercised by ordinary capacities.'' The omission of this care forms the lightest offense for which any one can be held responsible. By the diligence and attention "which can be exercised by ordinary capacities" must, however, be understood what, in another place, the code calls the attention "of a trusty and diligent head of a family," the care "of a good householder."
Stubenrauch, in his commentary on the Austrian code, treats the whole subject of culpa with much ability and learning. He ends by saying:
It is to be assumed that every man who is in possession of his faculties, is capable of that degree of diligence and attention which can be exercised by men of ordinary capacity. Whoever by the absence of this diligence and care causes injury to another, incurs liability.5
Mr. Justice Story, with the good sense which characterizes his writings, says:
Common or ordinary diligence is that degree of diligence which men in general exert in respect to their own concerns. It may be said to be the common prudence which men of business and heads of families usually exhibit in affairs which are interesting to them; or, as Sir William Jones has expressed it, it is the care which every person of common prudence and capable of governing a family takes of his own concerns. It is obvious that this is adopting a very variable standard, for it still leaves much ground for doubt as to what is common prudence, and who is capable of governing a family. But the difficulty is intrinsic in the nature of the subject, which admits of an approximation only to certainty. Indeed, what is common or ordinary diligence is more a matter of fact than of law, and in every community it must be judged of by the actual
state of society, the habits of business, the general usages of life, and the changes, as well as the institutions, peculiar to the age. So that, although it may not be possible to lay down any very exact rule, applicable to all times and all circumstances, yet that may be said to be common or ordinary diligence in the sense of the law which men of common prudence generally exercise about their own affairs in the age and country in which they live. It will thence follow, that in different times and in different countries, the standard is necessarily variable with respect to the facts, although it may be uniform with respect to the principle; so that it may happen that the same acts which, in one country, or in one age, may be deemed negligent acts, may, at another time, or in another country, be justly deemed an exercise of ordinary diligence.
What is usually done by prudent men in a particular country in respect to things of a like nature, whether it be more or less, in point of diligence, than what is exacted in another country, becomes in fact the general measure of diligence.1
The same standard is, in practice, applied in the English law. The older authorities, indeed, speak of three degrees of negligence, and of "gross" negligence as being necessary in some cases to found liability; but the tendency of modern decisions has been to apply in all cases the sound, practical rule that in determining the question of negligence, the true test is whether there has been, with reference to the particular subject-matter, that reasonable degree of diligence and care which a man of ordinary prudence and capacity might be expected to exercise in the same circumstances. (See what is said by Tindal, L. C. J., in Vaughan vs. Menlow, (3 B. N. C., 475;) by Parke, B., in Wyld vs. Pickford, (8 M. and W., 461;) by Cresswell, J., in Austin vs. Manchester, Sheffield and Lincolnshire Railway, (10 C.B., 454;) and by Rolfe, B., in Wilson vs. Brett, (11 M. and W., 115.)
While, however, I thus seek in the writings of jurists, and the law of different nations, some standard for the measure of diligence, I readily concede that the application of that standard must depend on the circumstances of each individual case, and on the view which the judge may, in his conscience, form of how far the conduct of the individual complained of may or may not have been that which ordinary prudence and sense of duty would have prescribed. I entirely agree with what is said by the learned editors of Zachariæ's "Droit civil françois," on article 1137 of the French code:
L'article 1137 se résume en un conseil aux juges de n'avoir ni trop de rigueur ni trop d'indulgence, et de ne demander au débiteur que les soins raisonnablement dûs à la chose qu'il est charge de conserver ou de faire, soit à raison de sa nature, soit à raison des circonstances variables à l'infini qui modifient son obligation pour la rendre ou plus large ou plus étroite.2
What is here said by the learned editors of Zachariæ appears to me to afford the true criterion. It is for the judge to determine, according to the best of his judgment, with reference to the facts of the particular case, and with reference to the thing to be done or left undone, whether what has been done, or left undone, as the case may be, has been what could reasonably and justly have been expected from a person of ordinary capacity and prudence in the affairs of life. More than this is not to be expected.
I have cited these authorities because, in the absence of any reference to the question of diligence among writers on international law, it seems to me that the principle that prevails as to men's conduct in the affairs of life may by analogy be well applied to the discharge of its duties by a government. Applying this standard, one nation has a right to expect from another, in the fulfillment of its
international obligations, the amount of diligence which may reasonably be expected from a well-regulated, wise, and conscientious government, according to its institutions, and its ordinary mode of conducting its affairs; but it has no right to expect more. The assertion of the obligation of a neutral government, as stated in the American case, that "the diligence is to be proportioned," not only to "the magnitude of the subject," but also to "the dignity and strength of the power which is to execute it," as though there could be one measure of diligence for a powerful state, and another for a weak one—a diligence "which shall prevent its soil from being violated"—which "shall deter designing men," &c.—thus making the neutral government answerable for the event—and "which prompts to the most energetic measures"—appears to me much too extensive, and altogether inadmissible.
The diligence required of a government to prevent infractions of neutrality may relate (1) to the state of its municipal law; (2) to the means possessed by it to prevent such infractions; (3) to the diligence to be used in the application of such means to the end desired.
As to the law, the subject may be divided into the prohibitive law, or, as it is termed in the American case, the punitive law, and the preventive law—that is, the law whereby the government is armed with the power and means of prevention.
As regards the prohibitive or punitive law, no difficulty can arise. It is plain that, to satisfy the exigency of due diligence, and to escape liability, a neutral government must take care, not only that its municipal law shall prohibit acts contravening neutrality, but that the law shall be upheld by the sanction of adequate punishment—that is to say, of such as may reasonably be expected to deter persons from offending against it.
As regards the preventive law, doubtless a government should be armed by law with power to prevent an infraction of the law, when it knows, or has reasonable ground to believe, that such infraction is about to take place.
But when we come to the question of the means which by law should be placed at the disposal of the government, difficulties of a very formidable character immediately present themselves.
The more despotic and unlimited the power of a government, the more efficacious will be the means at its command for preventing acts which it is desired to prevent.
Is this a reason, in a country where absolute and unlimited power is unknown, where every power is exercised in subordination to the law, and where, for any interference by the government with the rights of person or property, redress may immediately be sought, for investing the executive with an absolute and irresponsible power, at variance with the whole tenor and spirit of the national institutions, in order to protect a belligerent from the possibility of injury from a violation of neutrality?
Again, a nation has a system of procedure which is in harmony with its institutions, and with which it is satisfied. According to that system, persons against whom the law is to be put in force cannot be subjected to be interrogated in order to establish their criminality. Proof must first be produced, from which, while it remains unanswered, a presumption of guilt arises, before they can be called upon for a defense. Because a different system might be more efficacious in enabling the government to establish a case for confiscating a suspected vessel, for the
protection of a belligerent, is the legislature called upon to change the law because other nations become involved in war?
Again, the government of a country has been carried on for years according to an established system of official routine. This system may be somewhat complicated, and may render the action of the executive less speedy than it might otherwise be. But it is safe, and has been found to work sufficiently well in carrying on the affairs of the nation at home and abroad. Because a more rapid and a more direct action on the point to be reached might be obtained by a simplification of the official machinery, is a government to be held guilty of negligence, because, not foreseeing what was about to happen, it had not altered its ministerial arrangements accordingly?
A government, in all matters involving legal consideration, is in the habit of consulting and acting under the advice of lawyers specially appointed to advise it. The purpose is the laudable one of insuring the perfect legality of the proceedings of the government; but this advantage necessarily involves some loss of time, during which the action of the executive is for the moment suspended. Is this practice inconsistent with the diligence required of a neutral government? Honestly intending to do what was right, is it to be held responsible because a vessel equipped for war has taken advantage of such a delay, though perhaps, in the particular instance, accidentally prolonged?
I can only answer these questions in the negative. I do so on the ground, as to some of them, that they are things which no government could reasonably be asked to do; as to all, that they were not such things as a government of ordinary prudence and sagacity, carrying on its affairs in the usual way in which the affairs of governments are carried on, could have foreseen the necessity of providing for.
Passing from the law, and the means which the law should place at the disposal of a government, to enable it to repress intended violations of neutrality on the part of its subjects, to the action of the government in the use of such means, it seems to me that two things are incumbent on a government:
1st. That it shall use due diligence to inform itself, by the use of the means at its disposal, whether a violation of the law is about to be committed ; and,
2d. That, being satisfied of the fact, it shall use due diligence in applying its means and power of prevention.
These conditions honestly and bona fide satisfied, no government, as it seems to me, can be held liable for the acts of its subjects, but such acts must be deemed to be beyond the reach of any control which it can reasonably be expected to exercise.
But here questions of great importance, and of equal difficulty, present themselves:
(1.) Is a government, intending faithfully to discharge its duty toward another government, to be held responsible for a mere error of judgment? As, for instance, in thinking a vessel not liable, in point of law, to seizure, when in fact she was so; or in thinking the evidence in a particular case insufficient when it was sufficient.
(2.) Is a government wanting in due diligence if it declines to seize a vessel at the instance of a belligerent, when properly satisfied that, though there may be circumstances of a suspicious character, the only evidence which can be adduced will not justify the seizure before the law, and that the vessel will therefore be released?
(3.) Having seized a vessel, and brought the matter before the proper legal authority, is a government to be held responsible because, through
some mistake of the court, either of law or fact, there has been a miscarriage of justice?
(4.) Is it to be answerable for accidental delay, through which an opportunity becomes afforded to a vessel to evade the eventual decision of the government to seize her?
(5.) Is a government to be held responsible for error of judgment in its subordinate officers, especially when these officers are at great distance, and not acting under its immediate control? Is it, under such circumstances, to be answerable for their possible negligence, or even for their misconduct?
These are matters of infinite importance to neutral nations, who may be drawn within the vortex of wars in which they have no concern, if they are not only to be harassed and troubled by the demands and importunities of jealous and angry belligerents, but are, in addition, to be held responsible—to the extent, perhaps, of millions—for errors of judgment, accidental delay, judicial mistake, or misconduct of subordinate officers, acting not only without their sanction, but possibly in direct contravention of their orders.
We are not informed whether the two governments have, in compliance with the pledge contained in the treaty of Washington, invited other nations to adopt its rules; but if it is to be established that these rules carry with them a liability so extensive, I should very much doubt whether such an invitation, if made, would be attended with much success.
Any decision of this tribunal founded on such a liability would have the effect, I should imagine, of making maritime nations look upon belligerent powers with very considerable dread.
It is to be remembered that a government cannot be taken to guarantee the event; in other words, to be answerable at all hazards and under all circumstances for a breach of neutrality by a subject, if it occurs. In spite of the law, and of the vigorous administration of the law, offenses will take place, and neither at home nor abroad can rulers be held, under all circumstances answerable to those who suffer from them. All that can be expected of the government of a country is that it shall possess reasonable means to prevent offenses, and use such means honestly and diligently for the benefit of those who are entitled to its protection. The terms of the treaty, which require no more than "due diligence," exclude all notion of an absolute unconditional responsibility. This is evidently the meaning of an observation of the British counsel at the close of the fifth section of his argument on "due diligence," which the president of the tribunal appears to have found some difficulty in understanding.
Errors of judgement
This being so, I have some difficulty in saying that a government acting in good faith, and desiring honestly to fulfill its obligations, can be held liable for errors of judgment, unless, indeed, these are of so patent a character as to amount to crassa negligentia.
Prolonged and unnecessary delay is, in the very nature of things, incompatible with diligence. But delay, within reasonable limits, honestly intended for the investigation of facts or the due consideration of the proper course to be pursued, is not so. Delay arising simply from accident ought not to be imputed as negligence. Accident can never be made the ground of an imputation of negligence, though it may found a legal claim where a party is in mora.
Seizure of vessels
As regards the seizure of a vessel under the foreign-enlistment act, with a knowledge that the evidence would be insufficient to
justify it, I hold that such a seizure, whether for the purpose of furthering the ends of a belligerent, or because some suspicion might attach to the vessel, would have been unjustifiable both in policy and principle. For no government can be called upon to institute legal proceedings under such circumstances. Every government prosecution which ends in failure, is, in itself, productive of mischief. It lessens the authority of the executive by making it appear to have acted harshly and unjustly, and creates sympathy, perhaps unmerited, for parties against whom its efforts have been directed, and who have escaped from its pursuit. It impairs the authority of the law by leading to the belief that it may be infringed with impunity, thereby holding out encouragement to crime. A government would be acting in violation of the spirit of the constitution, as well as against law and right, if it seized a vessel, the property of a subject, unless it believed such vessel to be justly and legally liable to condemnation on legal and sufficient proof. Moreover, such a proceeding would be useless as well as arbitrary. The government would be unable to defer indefinitely the decision of the question, but, on the contrary, would be bound to submit the case to the proper tribunal at the earliest practicable moment. In the case supposed, the result would necessarily be that the vessel must be released and allowed to depart unmolested.
It must be borne in mind that the British government possesses no despotic or arbitrary power. It could neither assume nor exercise such a power, even to protect a belligerent or maintain its own neutrality.
As regards any miscarriage of justice in matters within the sphere of the municipal law, it appears to me utterly out of the question to hold that a government, having done what in it lay, as by seizing a vessel and bringing it properly before the competent court, can be held liable because, through some mistake or accident, justice may have been defeated.
A breach of the law having been committed in the equipping or arming of a vessel for belligerent purposes, all that the government could do, under the foreign-enlistment act, was to seize the delinquent vessel, and bring it into a proper court for condemnation. This done, and the evidence of the facts in such a case having been submitted by the public prosecutor to the court, the functions of the government are at an end. It can do no more. The rest is with the law. In England, in America, in every well-constituted and well-regulated state, the executive and judiciary powers are separated by a broad and impassable barrier. There is no authority in the state, however high, that would venture to interfere with the discharge of the judicial office. It would be considered a violation of the most sacred principles, and an outrage on all propriety, to seek to control, or even to influence, directly or indirectly, the decision of a judge, even of the most inferior tribunal.
This being so, the government of a neutral cannot justly or reasonably be held responsible for all the mischief which a vessel, equipped in violation of its law, may do throughout the course of, possibly, a protracted war because a suit which it has properly instituted fails through a mistake of the judge. To decide in the affirmative would be to establish a rule hitherto unknown, and calculated to impose on neutral states a degree of responsibility altogether unprecedented and unheard of.
As regards liability for the acts or omissions of subordinate officers, it seems to me that, while a government may properly be responsible for what is done, or omitted to be done, by its orders or under its own immediate control, it would be most unreasonable to hold it answerable for the acts or negligences of subordinates,
at all events, unless it afterward ratifies and adopts what these may have done.
In the matter of civil rights individuals may be liable for the negligence of those to whom they depute the conduct of their affairs; but, considering the complicated machinery of political government, especially when distant colonies and dependencies are concerned, and the consequent necessity of employing subordinate officers, it would be unreasonable and unjust to hold that the negligence of a subordinate, more especially from mere error of judgment, as, for instance, in allowing a vessel to take too much coal, was a want of "due diligence" on the part of the government, for which it can justly be held liable.
The following passage from the British Counter-Case sums up so well the different sides of this question, that I do not hesitate to produce it at length:
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 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 shipbuilder, 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.1
While I readily admit that the measure of diligence which a government applies to the affairs it has to administer, if the ordinary course of its administration is negligent and imperfect, is not necessarily to be taken—any more than it would be in the case of an individual—as the measure of diligence which it is to apply in the discharge of international obligations, yet credit should be given to a government for a properly diligent discharge of public duty.
Furthermore, if a given law and a particular system of administration have been found by practical experience sufficient to protect the interests of the government in the important matter of the public revenue, and also to insure the observance of neutral duties on the occasion of all former wars, surely it is highly unreasonable and unjust to condemn the whole system as defective, and the government as negligent, for not having amended it in anticipation of future events.
It must not be forgotten that, since the passing of the British statute, wars have occurred in all parts of the world, but no complaints of the violation of that statute have occurred till American citizens had recourse to new modes of defeating or evading it.
Such, in my opinion, are the principles by which we should be guided in deciding whether Great Britain has or has not failed to satisfy the requirements of due diligence. I proceed to apply them to the different heads of complaint preferred by the United States.
One main head of complaint on their part is that the municipal law of Great Britain, as contained in the foreign-enlistment act, was insufficient to enable the British government to enforce the observance of the duties of neutrality by its subjects. We have first a general condemnation of English acts of Parliament. "English acts," we are told, "are so overloaded with a mass of phrases, alike unprecise and confused, with so much of tedious superfluity of immaterial circumstances, as if they were specially designed to give scope to bar chicanery, to facilitate the escape of offenders, and to embarrass and confound the officers of the government charged with the administration of law. Such, indeed, has been the ordinary complexion of the legislation of Great Britain, and this style of complex verbosity of legislation has unhappily been transmitted to the United States." But then we have the satisfaction of learning that "there it begins to encounter steady efforts of reformation, which are conspicuous in the legislation of many of the American States.1
Of the foreign-enlistment act we are told that "its practical inefficiency was glaringly apparent on the face of all the relative diplomatic correspondence between Great Britain and the United States."
That it was "valueless, except as occasion should arise to make it serve as a pretext to cover, in diplomatic communication with other governments, indifference, unfriendly, or hostile animus on the part of some British minister."
British ministers are represented as "floundering along in the flat morass of the meaningless verbosity and confused circumlocution of an act of Parliament." They are represented as having been "compelled to drift into the condition of foreign war rather than break free from the entanglement of the cobweb meshes of that act."
It strikes me that those who address us in this strange style must suppose us to be ignorant that the English act of 1819 was framed on the model of the American act of 1818; that it is, in the main, identical in language, and is, in one, and that an important particular, more stringent than its predecessor.
The English act, in the part of it with which we are concerned, makes it an offense to "equip, furnish, fit out, or arm, within the United Kingdom or the Queen's dominions, without the royal license first obtained, any ship or vessel, with the intent, or in order that such ship or vessel shall be employed in the service of any foreign prince, state, or potentate, or of any foreign colony, province, or part of any province or people, or of any person or persons exercising or assuming to exercise any powers of government in or over any foreign state, colony, province, or part of any province or people, as a transport or storeship, or with intent to cruise or commit hostilities against any prince, c., c., with whom the Queen is not at war." To attempt to equip, c., any such ship or vessel with a like intent, or to procure it to be done, as well as knowingly to aid and assist, or be concerned in so doing, is equally made an offense. The penalty attached to the offense is fine and imprisonment, or either of them, at the discretion of the court, and the forfeiture of the vessel, with all its accessories, and of all materials, arms, ammunition, and stores which
may be found on board, on the vessel being prosecuted and condemned; such prosecution and condemnation being directed to be had "in like manner, and in such courts, as ships and vessels may be prosecuted and condemned for any breach of the laws for the protection of the revenues of customs and excise, or of the laws of trade and navigation."
So much for the prohibitive or punitive part of the law. The preventive part consists in a provision that the ship or vessel may be seized by any officer of Her Majesty's customs or excise, or any officer of the royal navy, who is by law empowered to make seizures for any forfeiture incurred under the revenue laws, or laws relating to trade or navigation, within the limits of their particular jurisdictions.
On comparing the enactment relating to the fitting out of ships with the corresponding enactment of the American statute, it will be found that the English act, on which so much vituperative criticism has been lavished, is, in fact, as regards the equipment of vessels, more comprehensive and effective than the former. For, while the English statute makes it an offense to equip or arm, in the disjunctive, by the American statute the offense consists in fitting out and arming, in the conjunctive, thus bringing the vessel a stage further on toward belligerent completion before the law can interpose.
It is true that the judges in the court of exchequer having been divided in opinion, in the case of the Alexandra, as to whether the arming of a vessel was not necessary before the intent that she should be employed for belligerent purposes could be inferred, the result in that case was that the more comprehensive enactment of the English statute failed in its effect. But when it is said, in somewhat strong language, that the effect of the decision in the Alexandra case was to "emasculate" the English statute, it must be observed that, if such was the case, the effect was only to reduce the English act to the condition in which the American statute had been from its birth. I think it unnecessary, on the present occasion, to express any opinion on the question on which the judges of the court of exchequer were divided. I will only, in passing, repeat my conviction that neither the American nor the English statutes were ever intended to interfere with the execution of orders from belligerents by American or British ship-builders, but simply to prevent the ports of the respective countries from being used for fitting out privateers, or being made the base of hostile expeditions. But the distinction between equipping and arming, and equipping without arming, is immaterial for the present purpose; for, in point of fact, that distinction never created any difficulty in the action of the British government. In the cases both of the Florida and the Alabama, the only question on which the action of the government was arrested was as to the sufficiency of the evidence of the vessel being intended for the service of a belligerent.
But it is with reference to the preventive powers conferred on the Executive by these acts that the case and argument of the United States principally assail the British statute, and triumphantly assert the superiority of the American act; maintaining that, while the British act depends on the sanction of penalties, the American act places power in the hands of the Executive which effectually secures it against infraction of the law.
Acquainted with the two acts, I read, I must say, with much surprise, the following passage in the argument of the United States:
The great difference between the two consists in the cardinal fact that the provisions
of the British act are merely punitive, and to be carried into effect only by judicial instrumentality; whereas the American act is preventive, calls for executive action, and places in the hands of the President of the United States the entire military and naval force of the Government, to be employed by him in his discretion for the prevention of foreign equipments and foreign enlistments in the United States.1
This appears to me a thoroughly inaccurate representation of the effect of the American act, which, as I understand it, confers no discretionary power on the President beyond that of employing the military or naval forces of the republic to support the law, if necessary. Referring to the different violations of neutrality made offenses by the act, the 8th section provides that—
In every case in which a vessel shall be fitted out and armed, or attempted to be fitted out and armed, or in which the force of any vessel of war, cruiser, or other armed vessel shall be increased or augmented, or in which any military expedition or enterprise shall be begun or set on foot, contrary to the provisions and prohibitions of this act; and in every case of the capture of a ship or vessel within the jurisdiction or protection of the United States as before defined; and in every case in which any process issuing out of any court of the United States shall be disobeyed or resisted by any person or persons having the custody of any vessel of war, cruiser, or other armed vessel of any foreign prince or state, or of any colony, district, or people, or of any subjects or citizens of any foreign prince or state, or of any colony, district, or people, it shall be lawful for the President of the United States, or such other person as be shall have empowered for that purpose, to employ such part of the land or naval forces of the United States, or of the militia thereof, for the purpose of taking possession of and detaining any such ship or vessel, with her prize or prizes, if any, in order to the execution of the prohibitions and penalties of this act, and to the restoring the prize or prizes in the cases in which restoration shall have been adjudged, and also for the purpose of preventing the carrying on any such expedition or enterprise from the territories or jurisdiction of the United States against the territories or dominions of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace.
To any one who reads this section with any degree of attention, its meaning, I think, must be clear. No arbitrary power is given to the President, nor any power of seizing a vessel at all, except "in order to the execution of the prohibitions and penalties of the act." No discretionary power whatever is given him except that of using force, where force is required, for overcoming resistance.
The enactment was contained in the original act of 1794, which was passed shortly after the French minister, Genet, had set the Government at defiance, and threatened to resist by force any attempt to detain a privateer illegally armed in the port of Philadelphia, and after the French vice-consul at Boston had actually rescued by force a suspected vessel which had been seized by the United States authorities.
The section was obviously directed against the repetition of such an occurrence, and was necessary to enable the President to use the forces of the state on a sudden emergency without having recourse to the Senate. The section gives the President no power which he would not have had without it, except where recourse to actual force is necessary. It is an entire misrepresentation to say that he has a discretionary power to seize and detain a vessel without bringing her before the proper court for adjudication. His power is to employ the state force, if necessary, among other things, to seize a vessel, "in order to the execution of the prohibitions and penalties of the act," which implies that the vessel must be submitted, in the usual course, to the proper legal process to decide on her condemnation or release. Often as the action of the Government was invoked by the governments of Spain and Portugal, during their colonial wars, to prevent the arming of vessels in the ports of the United States, frequent as have been