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Wharton, who had once gone so far as to declare that the “ three cules ” “ placed limitations on the rights of neutrals greater even than those England had endeavored to impose during the Napoleonic wars," a afterwards stated that " while the weight of authority” was that “the 'rules' themselves contain propositions which are generally unobjectionable,” such was “not the case with the decisions of the majority of the arbitrators, who interpret the 'rules' so as to impose on neutrals duties not only on their face unreasonable, but so oppressive as to make neutrality a burden which no prudent nation, in cases of great maritime wars abroad, would accept.” As to what was meant by “the decisions of the majority of the arbitrators” we are left to conjecture; but it would be unfair to assume that the phrase was intended to apply to the result at which the tribunal arrived with respect to the Alabama, the Florida, and the Shenandoah after she left Melbourne. It seems rather to have been intended to apply to the “rationes decidendi” of the arbitrators; and in this assumption we are warranted by the fact that the passage in which the phrase in question is found is preceded by various extracts in persons do not within its ports or waters put vessels of war at the disposition of any of the belligerents.
III. When the neutral state has knowledge of the enterprises or acts of this character, which are incompatible with neutrality, it is bound to take the necessary measures to prevent them, and to hold responsible the individuals who violate the duties of neutrality.
IV. The neutral state ought not to permit or suffer the belligerents to make its ports or waters the base of naval operations against each other, or their military transports to use its ports or waters for renewing or augmenting their military supplies or their arms, or for recruiting men.
V. The mere fact that a hostile act has been committed on the neutral territory does not suffice to make the neutral state responsible. In order to show that such state has violated its duty it is necessary to show either a hostile intention (dolus) or a manifest neglect (culpa).
VI. The power injured by the violation of the duties of neutrality has a right to consider neutrality as broken, and to resort to arms to defend itself against the state which has violated neutrality only in grave and urgent cases and only while the war is going on. In cases not grave or urgent, or when the war has come to an end, disputes of this kind appertain exclusively to arbitral procedure.
VII. The arbitral tribunal pronounces er bono et æquo on the amount of damages which the neutral state ought, in view of its responsibility, to pay to the injured state either for itself or its citizens.
a Commentaries on American Law, sec. 24. In the same section it was also asserted that the rules had been “ repudiated ” by Great Britain and the United Sites and "rejected by all other powers."
Int. Law Digest, III. 619. C A recent English writer, whose pages bear evidence of a personal examination of the records, expresses a clear opinion, for which he sets forth his reasons, that Great Britain was responsible for these vessels on any reasonable theory of due diligence. (Walker, Science of International Law, 485, 490, 496.) a International Law, 335.
which those reasons, especially on the question of diligence, are criticised. For example, a passage from Creasy is quoted, in which four of the arbitrators are represented as having “ virtually” announced the “ dogma ” that in determining whether a state is chargeable with negligence,“ no regard whatever is to be paid to the system of criminal process which, and which alone, is recognized and permitted by the fundamental institutions of that state." Certain passages on the subject of due diligence are also quoted from Sir Alexander Cockburn's dissent, with comments from which it might be implied that a majority of the arbitrators held that the neutral must employ“ perfect diligence."
Doubtless it is true that if we take particular expressions in the individual opinions of the arbitrators and in the award, and construe them without reference either to the context or to the results at which the tribunal arrived, it may not be difficult to find matter for criticism. For example, the representation that four of the arbitrators “ virtually " announced a "dogma" subversive of the legislative inde
” pendence of states evidently is based on their declaration in the case of the Alabama that “the Government of Her Britannic Majesty cannot justify itself for a failure of due diligence on the plea of insufficiency of the legal means of action which it possessed.” It is not asserted that this declaration actually contains the dogma in
question, but it is alleged that it“ virtually” does so. On the other hand, it may
be said that the declaration was merely intended to express the sound general principle, peculiarly applicable to the case of the Alabama, which Earl Russell had admitted to be a “scandal and reproach " to British laws, that a government can not be allowed to say, when called upon to perform its international duties: “ The laws do not permit me to do so." It is a self-evident proposition that if a government may by legislation fix the measure of what it owes to other states, there is no such thing as international law or international obligation. To say that a government can not “justify" a failure in duty by pleading the “insufficiency” of its laws by no means warrants the inference that, in determining whether it has been negligent, “no regard whatever " is to be paid to its system of criminal process.
We have referred to certain passages from Sir Alexander Cockburn on the subject of due diligence. The rule laid down in these passages and approvingly commented upon by Wharton is that which the“ diligens paterfamilias suis rebus adhibere solet;” or in the form in which Wharton expresses it, "such diligence as under the circumstances of the particular case good business men of the particular class
are accustomed to show." To what extent does this differ from the rule laid down by the four arbitrators? The award declares that the due diligence referred to in the 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 fulfill the obligations of neutrality on their part." What is the degree of diligence which the "diligens paterfamilias," or the "good business man" is accustomed to show? Wharton, in his work on Negligence, says that it is "proportionate to the duty imposed; "a that "the same act may or may not be negligent as the probability of injury ensuing from it may be greater or less; and that in order "to avert the charge of culpa levis," which he defines as the negligence of a good business man in his specialty, the "amount of care bestowed must be equal to the emergency." Pollock says that in determining the question of negligence, which is merely the contrary of diligence, the "caution that is required is in proportion to the magnitude and the apparent imminence of the risk." Cooley states that the "care and vigilance" required "may vary according to the danger involved in the want of diligence." These expressions may be considered as axiomatic. The exercise of vigilance in proportion to the risk of injury is involved in the very idea of diligence.
As appears above, the contracting parties agreed not only to observe the three rules as between themselves in future, but also "to bring them to the knowledge of other maritime powers and to invite them to accede to them." Before the exchange of the ratifications of the treaty a question arose as to the proper construction of that clause of the second rule by which the neutral is bound "not to permit or suffer either belligerent to make use of its ports or waters for the purpose of the renewal or augmentation of military supplies or arms." In order to remove an objection which had been raised in England, Mr. Fish declared that the President understood and insisted that the rule did not "prevent the open sale of arms or other military supplies in the ordinary course of commerce," and that the United States would, in bringing the rules to the knowledge of other powers and asking their assent to them, insist that such was their proper interpretation and meaning. On June 17, 1871, the day the ratifications of the treaty were exchanged at London, Earl Granville sent to Sir Edward Thornton, then British minister at Washington, a draft of a note to be used in presenting the three rules to the several maritime powers. In this note it was stated that the second rule was to be understood as prohibiting the use of neutral waters for the renewal or augmentation of military supplies only for the service of a vessel cruising or
a Sec. 48. b Sec. 47. © Sec. 53. d Law of Torts, 353, 372. e Torts, 2d ed. 752.
carrying on war, or intended to cruise or carry on war against another belligerent, and not when the military supplies or arms were exported in the ordinary course of commerce. Mr. Fish proposed to substitute for this explanation the phrase he had previously used. Earl Granville objected to the word “open,” because it would seem to make the Government responsible for clandestine sales. Mr. Fish intimated that he would be willing to omit this word, but strongly objected to the word “exportation" in Lord Granville's draft. Lord Granville was willing to omit it. When the discussion had reached this stage and seemed about to result in an agreement, it was interrupted by the controversy as to the “indirect claims" embraced in the American case at Geneva, and was not resumed till several months after the Geneva tribunal had rendered its award. Meanwhile the situation had materially changed. Prince Bismarck was reported to have expressed himself in a manner unfavorable to the rules, not because they went too far, but because they did not go far enough, intimating that, in order to render them acceptable, they should be extended so as to forbid the supplying of arms and other munitions of war. On October 7, 1872, General Schenck reported from London that Count Beust, the Austrian ambassador, had, in his correspondence with his Government, taken strong ground against the rules, and that Count Bernstoff, the German ambassador, had told Lord Granville that his Government probably would oppose the rules when they were proposed for its acceptance. But it was the award at Geneva that served,
. more than anything else, to prevent the joint submission of the rules by the United States and Great Britain to the other maritime powers. On March 21, 1873, a debate took place in the House of Commons on a motion of Mr. Harvey, for an address to the Crown praying that Her Majesty, in communicating the rules to foreign powers, would declare her dissent from the principles set forth by the Geneva tribunal. Several speakers, among whom were Sir W. Vernon Harcourt, spoke in condemnation of the rules. Mr. Gladstone, then prime minister, declared that " the dicta of the arbitrators," their “recitals," and their “ rationes decidendi," should not be allowed to enter into the question; but he intimated that the attempt to place a “substartive interpretation ” on the rules in recommending them to other powers would be open to objection. There was much criticism of the rules in the House of Commons again in the following May; and on November 3, 1873, after the question of submitting the rules had been revived by Mr. Fish, Lord Granville instructed Sir Edward Thornton that, while Her Majesty's Government would not propose to fix, without the full concurrence of that of the United States, any particular interpretation of the rules, they would think it necessary to guard themselves against any unintended consequences which, as the result of the Geneva award, the rules might be thought to involve. The subject then remained substantially in abeyance till the spring of 1875. It was subsequently revived on several occasions in connection with the preparations for the Halifax Commission, but with no practical result. On July 26, 1876, Sir Edward Thornton concluded a note to Mr. Fish, containing a recapitulation of the negotiations, with the statement that the delay in dealing with the matter could not be laid to the account of Her Majesty's Government. In a similar recapitulation, embodied in a note of September 18, 1876, Mr. Fish endeavored to show that the responsibility lay with the British Government, and, in this relation, he adverted to the fact that the same clause in the treaty which bound the contracting parties to observe the rules in future, also obliged them to present the rules to other powers. “ The stipulation,” said Mr. Fish, “ is regarded by the United States as indivisible, so that a failure to comply with one part thereof may, and probably will, be held to carry with it the avoidance and nullity of the other.” In closing, he expressed the wish of the United States to cooperate in the solution of the question of submission.
For a fuller account, see Moore, Int. Arbitrations, I. 666-670, citing S. Ex.
Doc. 26, 45 Cong. 3 sess. ; 65 Br. & For. State Papers, 399.
American Law, sec. 244, citing Lorimer's Institutes of the Law of
xlii. ; 7 Am. Law Review, 193, 237.
VIII. STATE OF BELLIGERENCY.
1. ESSENTIAL, AS AGAINST TITULAR GOVERNMENT
“I have to acknowledge the receipt of your letter of the 9th instant, relative to the legitimacy of the Salnave Government of Hayti, and the sailing of the Haytian man-of-war Galatea from the port of New York. The Salnave Government must, until some other has established itself de facto, and has been recognized as such by the proper Department of our Government, be regarded as the legitimate Government of Hayti and such respect must be paid to its acts and rights as are due to its character. The Galatea is understood to be a regular Ilaytian man-of-war, which being disabled put into the port of New York for repairs. This Government had no authority to detain her; but on the contrary was bound in comity to allow her to refit and if need be to facilitate the same. You will perceive that the principles above stated apply equally to the case of the brig Esey, alleged by you in your telegram of the 12th instant to be about to sail with ammunition for Salnave. There is here no violation of neutrality as there are no governments interested between which this Government