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tance of a vigorous and faithful enforcement of the neutrality laws; and if they would further act upon the theory for which this Government has contended, and which it is now exerting itself to maintain, that a neutral or a friendly government is bound to use due diligence to prevent hostile expeditions from being fitted out within its territory, against a power with which it is at peace, and that such obligation of a neutral, or of a friendly, power is not satisfied by throwing upon the power whose peace or whose territories are threatened the burden of the prosecution, or the whole duty of furnishing testimony.
“ The position which the United States assumed and has maintained in cases of a somewhat kindred nature, with another power, has been that when reasonable grounds were presented to a Government by a friendly power for suspicion that its peace is threatened by parties within the jurisdiction of that Government, it is the duty of the latter to become the active prosecutor of those threatening the peace of the former.
“ It appears to me that Mr. Davis's letter implies that the obligations of this Government extend no further than to present to a jury such evidence of violation of the neutral duties of the United States as Spain may furnish. This is not the extent of a neutral power's duty, as has been insisted by this Government in its diplomatic correspondence with other States. I have ventured, in answer to your inquiry, to submit these suggestions as called for by the statements in Mr. Davis's letter, and in the belief that not only the duty of the United States, but that important questions now pending, require that the Government become the active prosecutor of violations of its neutral duties whenever reasonable cause for such prosecution has been presented to it.
“ Whether the presentation by a grand jury be not such reasonable cause is a question which I need not raise.
“P. S. As certain diplomatic questions are at this time pending with the Spanish Government, it may be well that the suggestions made and opinions expressed in this letter be not allowed to be published during the pendency of these questions."
Mr. Fish, Sec. of State, to Mr. Akerman, At. Gen., Nov. 20, 1871, 91 MS.
Dom. Let. 350.
supposes that the Government in which such disturbing action takes
“ The United States do not employ any police force. Consequently, it is usually advisable for the agents of a foreign state which may suppose that illegal enterprises against it are about to be set on foot in this country to employ detectives of their own to watch suspected parties. If a discovery should thereby be made of an offense against the law, the testimony of the detective would be available for the prosecution of the offenders. Under the law of this country and of England, as contradistinguished, I believe, from that of the continent of Europe and elsewhere, no person can be arrested or prosecuted for a crime or misdemeanor except upon the affidavit of a credible witness."
Mr. Fish, Sec. of State, to Mr. Garcia, Nov. 17, 1874, MS. Notes Arg.
Rep. VI. 134.
that other Governments will fulfill their duties as neutrals towards
MS. Notes to Spain, IX. 386.)
Sir E. Thornton, Sept. 18, 1876, MS. Notes to Gr. Brit. XVII. 228.
“ The duty of the United States, when a state of war is declared or recognized by another country, is of its own motion to use diligence to discover and prevent, within its borders, the formation or departure of any military expedition intended to carry on or take part in such war. (3 Whart. Dig. Int. Law, pp. 630, 637.) It is by no means certain that knowledge of the existence of a mere insurrection, even when its location or alleged motives may be thought likely to lead to violations of our laws in its behalf, imposes any general duty of watchfulness, the neglect of which would be just ground of complaint by the nation involved which does not itself acknowledge a state of war. Actual notice, however, of hostile expeditions against a friendly nation, undertaken or threatened, creates the duty of vigilance to prevent them; and the fact that the different elements intended to constitute a hostile expedition are separately prepared or transported does not change such duty, but merely renders it more difficult to perform. But the obligation is one of diligence and not a guaranty against such expeditions; and what constitutes diligence must always depend on the circumstances in each case. (3 Whart. Dig. Int. Law, p. 639; Creasy Int. Law, pp. 160–164.)”
Ilarmon, At. Gen., Dec. 10, 1895, 21 Op. 267, 271–272.
2. RULES OF 1871; GENEVA AWARD.
“ In deciding the matters submitted to the arbitrators, they shall be governed by the following three rules, which are agreed upon by the high contracting parties as rules to be taken as applicable to the case, and by such principles of international law not inconsistent therewith as the arbitrators shall determine to have been applicable to the case :
"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.
“Her Britannic Majesty has commanded her high commissioners and plenipotentiaries to declare that Her Majesty's Government can not 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 Government, 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.”
Art. VI., Treaty of Washington, May 8, 1871, relating to the arbitration
of the Alabama claims. As to the origin of these rules, see Moore, Int. Arbitrations, I. 495 et seq. As to the term “due diligence," see id. I. 572, 610, 612, 654; IV. 4057-4082.
" Whereas, having regard to the VIth and VIIth articles of the said treaty, the arbitrators are bound under the terms of the said VIth article, in deciding the matters submitted to them, to be governed by the three rules therein specified and by such principles of international law, not inconsistent therewith, as the arbitrators shall determine to have been applicable to the case; '
"And whereas the due diligence' referred to in the first and third of the said rules ought to be exercised by neutral governments in exact proportion to the risks to which either of the belligerents may be exposed, from a failure to fulfil the obligations of neutrality on
“And whereas the circumstances out of which the facts constituting the subject-matter of the present controversy arose were of a nature to call for the exercise on the part of Her Britannic Majesty's government of all possible solicitude for the observance of the rights and the duties involved in the proclamation of neutrality issued by Her Majesty on the 13th day of May, 1861;
“And whereas the effects of a violation of neutrality committed by means of the construction, equipment, and armament of a vessel are not done away with by any commission which the government of the belligerent power, benefited by the violation of neutrality, may afterwards have granted to that vessel; and the ultimate step, by which the offense is completed, can not be admissible as a ground for the absolution of the offender, nor can the consummation of his fraud become the means of establishing his innocence;
“And whereas the privilege of exterritoriality accorded to vessels of war has been admitted into the law of nations, not as an absolute right, but solely as a proceeding founded on the principle of courtesy and mutual deference between different nations, and therefore can never be appealed to for the protection of acts done in violation of neutrality;
“And whereas the absence of a previous notice can not be regarded as a failure in any consideration required by the law of nations, in those cases in which a vessel carries with it its own condemnation;
“And whereas, in order to impart to any supplies of coal a character inconsistent with the second rule, prohibiting the use of neutral ports or waters, as a base of naval operations for a belligerent, it is necessary that the said supplies should be connected with special circumstances of time, of persons, or of place, which may combine to give them such character;
“And whereas, with respect to the vessel called the Alabama, it clearly results from all the facts relative to the construction of the ship at first designated by the number 290’in the port of Liverpool, and its equipment and armament in the vicinity of Terceira through the agency of the vessels called the Agrippina and the Bahama, dis
patched from Great Britain to that end, that the British government failed to use due diligence in the performance of its neutral obligations; and especially that it omitted, notwithstanding the warnings and official representations made by the diplomatic agents of the United States during the construction of the said number 6 290,' to take in due time any effective measures of prevention, and that those orders which it did give at last, for the detention of the vessel, were issued so late that their execution was not practicable;
“And whereas, after the escape of that vessel, the measures taken for its pursuit and arrest were so imperfect as to lead to no result, and . therefore can not be considered sufficient to release Great Britain from the responsibility already incurred;
"And whereas, in despite of the violations of the neutrality of Great Britain committed by the 290,' this same vessel, later known as the confederate cruiser Alabama, was on several occasions freely admitted into the ports of colonies of Great Britain, instead of being proceeded against as it ought to have been in any and every port within British jurisdiction in which it might have been found;
“And whereas the government of Her Britannic Majesty can not justify itself for a failure in due diligence on the plea of insufficiency of the legal means of action which it possessed :
“ Four of the arbitrators, for the reasons above assigned, and the fifth for reasons separately assigned by him, are of opinion that Great Britain has in this case failed, by omission, to fulfill the duties prescribed in the first and the third of the rules established by the VIth article of the treaty of Washington.
"And whereas, with respect to the vessel called the Florida, it results from all the facts relative to the construction of the Oreto in the port of Liverpool, and to its issue therefrom, which facts failed to induce the authorities in Great Britain to resort to measures adequate to prevent the violation of the neutrality of that nation, notwithstanding the warnings and repeated representations of the agents of the United States, that Her Majesty's Government has failed to use due diligence to fulfil the duties of neutrality;
"And whereas it likewise results from all the facts relative to the stay of the Oreto at Nassau, to her issue from that port, to her enlistment of men, to her supplies, and to her armament, with the co-opera- tion of the British vessel Prince Alfred, at Green Cay, that there was negligence on the part of the British colonial authorities;
“And whereas, notwithstanding the violation of the neutrality of Great Britain committed by the Oreto, this same vessel, later known as the confederate cruiser Florida, was nevertheless on several occasions freely admitted into the ports of British colonies;
“And whereas the judicial acquittal of the Oreto at Nassau can not relieve Great Britain from the responsibility incurred by her under