ments or recognitions of rules obligatory under the law of nations; it has further insisted upon a construction of the words of the second rule, which no neutral nation could safely accept, and which was not in the contemplation of Great Britain at the time when they were agreed to.

The novel limitations which it is attempted thus to introduce are in the following passage, mingled with limitations which at present exist and are recognized by established usage:

The ports or waters of the neutral are not to be made the base of naval operations by a belligerent. Vessels of war may come and go under such rules and regulations as the neutral may prescribe; food and the ordinary stores and supplies of a ship not of a warlike character may be furnished without question, in quantities necessary for immediate wants; the moderate hospitalities which do not infringe upon impartiality may be extended; but no act shall be done to make the neutral port a base of naval operations. Ammunition and military stores for cruisers cannot be obtained there; coal cannot be stored there for successive supplies to the same vessel, nor can it be furnished or obtained in such supplies. Prizes cannot be brought there for condemnation. The repairs that humanity demand can be given, but no repairs should add to the strength or efficiency of a vessel, beyond what is absolutely necessary to gain the nearest of its own ports. In the same sense are to be taken the clauses relating to the renewal or augmentation of military supplies or arms and the recruitment of men. As the vessel enters the port, so is she to leave it, without addition to her effective power of doing injury to the other belligerent. If her magazine is supplied with powder, shot, or shells; if new guns are added to her armament; if pistols, or muskets, or cutlasses, or other implements of destruction, are put on board; if men are recruited; even if, in these days when steam is a power, an excessive supply of coal is put into her bunkers, the neutral will have failed in the performance of its duty.'

According to this interpretation a neutral government which should suffer a belligerent cruiser to effect any repairs beyond what are absolutely necessary for gaining the nearest of its own ports, or to receive more coal than would be enough for the same purpose, would commit a breach of neutral duty. It may, indeed, sometimes be found convenient by neutral powers to impose restrictions of this nature, more or less stringent, on the armed vessels of belligerents admitted into their ports; and this was done by Great Britain during the civil war. But such restrictions were not then, and are not now, dictated by any rule of international obligation. Were they to become such, and were the obligation to be construed against the neutral with the breadth and rigor for which the United States contend, it may be feared that neutral powers would rarely be secure against complaints and demands for compensation on the part of one belligerent or another.

Having constantly during the war used British ports as places of resort for its own cruisers, and having repeatedly obtained for them therein successive supplies of coal, which were consumed, not in returning home, but in cruising, the Government of the United States now appears to represent this very act as a breach of neutral duty, and to hold Great Britain liable for any cases in which confederate vessels may have succeeded in obtaining similar facilities.

This question, however, does not regard Great Britain alone. The Government of the United States has plainly declared that it regards

these rules as no more than a statement of previously established [16] rules of international law. So far as regards the second rule *Her

1 Case of the United States, p. 167.

Case of the United States, pp. 148, 149. See also p. 162, and the President's message to Congress, 4th December, 1871. "The contracting parties in the treaty have undertaken to regard as between themselves certain principles of public law, for which the United States have contended from the commencement of their history. They have also agreed to bring those principles to the knowledge of the other maritime powers, and to invite them to accede to them."

Britannic Majesty's government concurs in this view. The expressions upon which the United States rely belong to a class in common use among publicists, who, in attempting to define the duties of neutrality, are accustomed to employ these words or others equivalent to them, and of not less extensive meaning. Thus the phrase "base of naval operations," employed in this connection, denotes the use of neutral territory by a belligerent ship as a station or point of departure where she may await, and from whence she may attack her enemy. That these expressions have not hitherto received the construction which the United States would put upon them, is certain. Whether they are to receive it in future, is a question which concerns not Great Britain only, but all other powers which may hereafter find themselves neutral in maritime warfare.1

FURTHER LIMITATION SUGGESTED BY THE UNITED STATES.

suggested by the

The Government of the United States insists further that the general Further limitation right of neutral powers to allow free entrance into and egress United States. from their ports to belligerent ships of war is subject to one important exception. This exception relates to vessels which have been originally adapted for war wholly or in part within the jurisdiction of

A distinction has sometimes been drawn between such hospitalities as humanity requires to be granted to all belligerent vessels, and such as the neutral may concede or refuse at discretion. (See the opinion of Mr. Cushing, then Attorney-General of the United States, on the case of the Sitka, Appendix to British Case, vol. v, p. 366.) "Whether or not," says Mr. Cushing, "a neutral nation has the right to refuse absolutely the admission of any belligerent ship into her ports, is an abstract question, which it is unnecessary to discuss here. It suffices to say that the general duties of humanity require that the belligerent be allowed to enter for the purpose of escaping from the danger of the seas, or purchasing provisions and making repairs, indispensable to the continuance of the voyage. Everything accorded beyond this must be regarded as an act of international sociability or comity, not of humanity or obligation. In the present state of the law of nations, it is universally conceded that the armed ships of a belligerent, whether men-of-war or private armed cruisers, are to be admitted, with their prizes, into the territorial waters of a neutral for refuge, whether from chase or from the perils of the sea. This is a question of mere temporary asylum, accorded in obedience to the dictates of humanity, and to be regulated by the specific exigency.

*

"Going beyond this, we find that the ships of war of a belligerent are generally admitted into the ports of the neutral, even when there is no exigency of humanity, but still under certain reservations. The neutral nation has a perfect right so to measure the extent of the asylum thus accorded, as to cover its own safety and retain the means of enforcing respect for its own sovereignty. Thus, in Europe, it generally happens that war is commenced between two or three of the great powers for purposes of mutual jealousy or ambition of their own, and as to which the other states are comparatively indifferent in feeling or interest, or have conflicting interests, which impel them to remain neutral in the war. But, very soon, as the burden of the war presses on one or another of the belligerents, he, having undertaken more than he can accomplish alone, seeks to persuade or compel the neutral state to join him. Or he cannot efficiently attack his enemy without occupying the territory of some neutral state. Or, perceiving that his own commercial resources are wasting away in the war, he looks resentfully on the prosperity of some neutral state, whose commerce flourishes at his expense. Or, jealous of the intentions of a neutral state, and fearing it may join his enemy, he seeks to anticipate such an event by crippling the military forces of such neutral state. Or, finally, becoming fatally engaged in a protracted war, until it has at length degenerated into a mere willful contest of pride and passion, the belligerent enters upon the desperate and frantic plan of starving his adversary by cutting off all the neutral commerce, the very attempt to do which is an outrage on the law of nations, and can be carried out only by the perpetration of every kind of violence and fraud on the neutral nations." He proceeds to observe that "it is not material whether such regulations operate to the benefit of one or the other belligerent power." The argument of the United States now is, that any hospitalities afforded to belligerent vessels in neutral ports, beyond those which Mr. Cushing described in 1855 as commanded by the dictates of humanity, and obligatory on all neutral powers, are violations of neutral duty.

the neutral. It is insisted that the neutral government is bound to seize and detain such vessels whenever they may enter its ports; that this is a duty which it owes to the other belligerent, and by the nonperformance of which it becomes liable to a demand for compensation. In the view of the United States this also is a general rule of international law, which existed before the treaty of Washington, binding on all neutral powers, and is expressly affirmed, also, as between the United States and Great Britain, by the first of the three rules. It is stated as follows:

The

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. United States invite the particular attention of the tribunal to the continuing character of the second clause of this rule. The violation of the first clause takes place once for all when the offending vessel is fitted out, armed, or equipped within the jurisdiction of the neutral; but the offense under the second clause may be committed as often as a vessel, which has at any time been specially adapted, in whole or in part, to warlike use, within the jurisdiction of the neutral, enters and departs [17] unmolested from one of its ports. Every time that the Alabama, or the Georgia,

*

or the Florida, or the Shenandoah came within 'British jurisdiction, and was suffered to depart, there was a renewed offense against the sovereignty of Great Britain, and a renewed liability to the United States.

The words "specially adapted for warlike use" include, according to the United States, any adaptation whatever "for the hostile use of a belligerent, whether that adaptation began when the keel was laid to a vessel intended for such hostile use, or whether it was made in later stages of construction, or in fitting out, or in furnishing, or in equipping, or in arming, or in any other way." In every case in which anything whatever had been done, however slight, to fit the vessel for warlike use, (for the language of the United States is framed with studied care to embrace every possible act of adaptation,) the obligation, with its attendant liability, attaches on the neutral government.

This duty seems to have, according to the United States, no limit of time. It applies to vessels which have "at any time" received any partial adaptation for warlike use in the building-yards, docks, or waters of the neutral country; it applies to public ships of war, commissioned by a belligerent power; and it applies to them indifferently whether the act or acts of adaptation took place after they were commissioned, or before it and before they came into the possession of the commissioning power. Literally, it might even be taken to apply to cases in which the adaptation had taken place for purposes totally unconnected with the particular war, or with either of the belligerents. Had the United States intended to limit in any way their peculiar interpretation of the clause, they might have been expected to state the limitation. But it is clear that they had no such intention, for they have been careful to employ the widest and most comprehensive language they could possibly command.

It can hardly be necessary to say that this pretended obligation, whereby a neutral government would be bound to seize by force any public armed ship which might enter its ports, and of which there might be reason to believe that she had at any time before received some partial adaptation for war within the jurisdiction of the neutral, is entirely unknown to the law, unsupported by practice, and in direct

conflict with the principles which have hitherto governed the admission of public ships of war into the ports of friendly nations.

This would alone be sufficient to condemn the interpretation of the second rule suggested by the United States, even if it could, with any plausibility, be represented as the natural meaning of the words employed. But it is not their natural meaning. No one who desired to lay down such a principle would clothe it in such language. It is clear that these words point to a departure following the special adaptation, while the hostile purpose still rests in intention, and the vessel may still, by due diligence, be prevented from quitting the neutral territory to carry that purpose into execution; and that they could not, without violence, be applied to a case in which the ship, having succeeded in effecting her departure, and finally quitted the neutral jurisdiction, has subsequently re-entered it at an indefinite distance of time; when, instead of being merely "intended for warlike use," she is known to be actually engaged in hostile operations; and when her original character has been exchanged for that of a public ship of war, recognized as such in the ports of other neutral states, and exempt as such from all local jurisdiction. Unless a violation of neutrality had been established in due course of law against such a vessel, while properly subject to the neutral jurisdiction, the question of fact whether such a violation had taken place could not, by any form of proceeding, be investigated between the neutral power and the belligerent whose flag she bore. Even if the proof of the facts, in foro competente, were as easy as it has been generally found difficult, the belligerent power would justly deny the right of the neutral to exercise jurisdiction over a vessel forming part of its public maritime force, for the purpose of any such inquiry. And to detain a public ship of war in a neutral port for acts done before she had obtained that character, without any previous notice that she was not at liberty to come in upon the usual terms, would be in itself an act of war, and a plain violation of well-settled rules of international comity.

Her Britannic Majesty's government observes with sincere regret that, as in other particulars, so more especially in this, the Government of the United States, instead of accepting in a fair and reasonable sense rules which the two powers have engaged to observe towards one another and to recommend for adoption to other states, seems on this occasion to have considered how they might be turned to the greatest advantage in the present controversy, and with that view to have strained the construction of them to the very utmost. The undue extension which it is

proposed to give to the first rule does not accord with its plain [18] and natural meaning, was never contemplated by the govern ment of Her Britannic Majesty, and is altogether rejected by

Great Britain.

The British government concurs with the Government of the United States in holding that a vessel which has become liable to arrest and seizure, within neutral jurisdiction, by reason of a violation of neutrality, cannot relieve itself from that liability by merely removing to another place within the same jurisdiction, and that the duty of the neutral government to seize and detain, where such a duty exists, would not be affected, though the execution of it might without any want of due diligence be embarrassed or prevented, by the mere fact of such removal. The orders issued for the seizure of the Alabama under the powers of the foreign-enlistment act would have been executed at Queenstown or Nassau, had she gone from Liverpool to either of those places, exactly as they would have been executed at Liverpool if they

had arrived in time. But the Alabama, when she touched for the first time at a port of a British colony, had for more than six months been commissioned and in active service as a cruiser of the Confederate States; had, as such, fought a successful action with a United States war steamer; and, as such, had been received at the French island of Martinique, as she afterwards was at Fernando de Noronha, Bahia, and Cherbourg. And, in matters relating to the war, it was the duty of Great Britain, as it was the duty of other neutral powers, to treat the Alabama in exactly the same manner as, under corresponding circumstances, they would have treated a public ship armed and commissioned by a recognized sovereign state.

Her Majesty's government, in its case presented to the tribunal of arbitration, has stated the following propositions:1

Maritime war being carried on by hostilities on the high seas, and through the instrumentality (ordinarily) of vessels commissioned by public authority, a neutral power is bound to recognize, in matters relating to the war, commissions issued by each belligerent, and captures made by each, to the same extent and under the same conditions as it recognizes commissions issued and captures made by the other.

Where either belligerent is a community or body of persons not recognized by the neutral power as constituting a sovereign state, commissions issued by such belligerent are recognized as acts emanating, not indeed from a sovereign government, but from a person or persons exercising de facto, in relation to the war, the powers of a sovereign government.

Public ships of war in the service of a belligerent, entering the ports or waters of a neutral, are, by the practice of nations, exempt from the jurisdiction of the neutral power. To withdraw or refuse to recognize this exemption without previous notice, or without such notice to exert, or attempt to exert, jurisdiction over any such vessel, would be a violation of a common understanding, which all nations are bound by good faith to respect.

A vessel becomes a public ship of war by being armed and commissioned, that is to say, formally invested by order or under the authority of a government with the character of a ship employed in its naval service and forming part of its marine for purposes of war. There are no general rules which prescribe how, where, or in what form the commissioning must be effected, so as to impress on the vessel the character of a public ship of war. What is essential is, that the appointment of a designated officer to the charge and command of a ship likewise designated be made by the government or the proper department of it, or under authority delegated by the government or department, and that the charge and command of the ship be taken by the officer so appointed. Customarily, a ship is held to be commissioned when a commissioned officer appointed to her has gone on board of her and hoisted the colors appropriated to the military marine. A neutral power may indeed refuse to admit into its own ports or waters as a public ship of war any belligerent vessel not commissioned in a specified form or manner, as it may impose on such admission any other conditions at its pleasure, provided the refusal be applied to both belligerents indifferently; but this should not be done without reasonable notice.

The act of commissioning, by which a ship is invested with the character of a public ship of war, is, for that purpose, valid and conclusive, notwithstanding that the ship may have been at the time registered in a foreign country as a ship of that country, or may have been liable to process at the suit of a private claimant, or to arrest or forfeiture under the law of a foreign state. The commissioning power, by commissioning her, incorporates her into its naval force; and by the same act which withdraws her from the operation of ordinary legal process assumes the responsibility for all existing claims which could otherwise have been enforced against her.

[19]

*The principle on which these rules repose is thus explained by Ortolan:

S'il s'agit de navires de guerre, la coutume internationale est constante; ces navires restent régis uniquement par la souveraineté de leurs pays; les lois, les autorités, et les jurisdictions de l'état dans les eaux duquel ils sont mouillés leur restent étrangères; ils n'ont avec cet état que des relations internationales par la voie des fonctionnaires de la localité compétents pour de pareilles relations.

Cette coutume est-elle fondée en raison? peut-elle être défendue même au point de vue théorique? ou bien mérite-t-elle le blâme que quelques esprits paraissent vouloir jeter sur elle, ou les restrictions que d'autres s'efforcent d'y apporter

British Case, pp. 4, 23, 24.