In 1879 there occurred a case which may be considered somewhat of a precedent, in which Mr. Evarts, Secretary of State, held that the shipment to one of the belligerents in the war between Chile and Peru of a torpedo launch in sections, ready to be set up, or even as a completed sea-going vessel, would not be a violation of the neutrality laws of the United States.2 But a different attitude was assumed by Great Britain during the Spanish-American War, when that Government prohibited the completion of a cruiser and the departure from its jurisdiction of a nearly completed torpedo boat, which had been purchased by the United States about a month before the commencement of hostilities.3

Submarines and other war vessels sold in parts or even completed and launched or ready for launching may be considered as articles of commerce and as such the traffic in them may be claimed to be not different from nor subject to stricter prohibitions than traffic in other articles of commerce used exclusively for warlike purposes, such as explosives, guns, ordnance, airships, etc., the sale of which is not made illegal by either municipal or international law, but which are subject to seizure as contraband of war outside the territorial jurisdiction by an enemy of the purchasing government. "It is fully recognized," says Hall, "that a vessel completely armed, and in every respect fitted the moment it receives its crew to act as a man of war, is a proper subject of commerce. There is nothing to prevent its neutral possessor from selling it, and undertaking to deliver it to the belligerent either in the neutral port or in that of the purchaser, subject to the right of the other that he submitted to the President's views of the subject, and that I could announce that his firm would not build submarines for any belligerent country for delivery during the war. This closes the submarine incident." (Washington Post, Dec. 8, 1914, p. 3.)

2

Moore, International Law Digest, Vol. VII, p. 960.

Ibid., Vol. VII, p. 861. The sale to Russia during the Russo-Japanese War by the North German Lloyd and German Hamburg-American Steamship Companies of a number of merchant vessels adaptable to warlike purposes is not generally criticized on the ground that Germany allowed the sale by its subjects and delivery to one of the belligerents of vessels which were easily converted into warships, but, owing to its interest in the vessels, which practically formed a part of her auxiliary navy, the objection is made that Germany was a party to the sale, and thereby violated her duty as a neutral nation. Hershey, Essentials of International Public Law, sec. 462, note 6, and citations there given. This author erroneously states that the vessels were sold to Japan.

• International Law, 6th ed., p. 606.

belligerent to seize it as contraband if he meets it on the high seas or within his enemy's waters." For this reason, the Declaration of London characterizes as absolute contraband, "war ships, including boats, and their distinctive component parts, of such a nature that they can only be used on a vessel of war," and these articles are likewise included in the lists of absolute contraband issued by the belligerents on both sides of the present struggle.

On the other hand, it is a fundament of neutrality that a neutral government may not allow its territory to be made a military or naval base for operations against a state with which it is at peace, and the United States Government assumed and for many years maintained a position on this question in advance of other nations. It was forced to declare its attitude early in its history, when the French minister, the notorious citizen Genet, in 1793 persisted in fitting out and arming privateers in American ports to cruise against the British. President Washington's Cabinet, which included Thomas Jefferson and Alexander Hamilton, on August 3, 1793, adopted rules as to the "equipment of vessels in the ports of the United States by belligerent Powers," which made unlawful, among other acts, "the original arming and equipping of vessels in the ports of the United States by any of the belligerent parties for military service, offensive or defensive," and "equipments of vessels in the ports of the United States, which are of a nature solely adapted to war." These rules were embodied in Hamilton's circular to the collectors of customs in the ports of the United States issued on August 4, 1793,5 and the Governors of the several States were requested to be on their watch against such enterprises and to seize such vessels found within their jurisdiction. These Executive orders and subsequent proclamations of neutrality issued by President Washington proved to be inadequate to maintain the high standard of neutral conduct adopted by Washington and his Cabinet, and he appealed to Congress for legislation. His appeal resulted in the passage of the first neutrality law of the United States on June 5, 1794.

6

Section 3 of this statute prohibited the fitting out and arming within the United States of vessels intended to commit hostilities against a state with which the United States is at peace. This inhibition has been carried through the various revisions and amendments of the neutrality laws and now appears, with slight changes of phraseology, as Section 11 'Moore, Digest of International Law, Vol. VII, pp. 890-891. Ibid., p. 889.

of the Penal Code of the United States which went into effect on January 1, 1910. The section reads as follows:

Whoever, within the territory or jurisdiction of the United States, fits out and arms, or attempts to fit out and arm, or procures to be fitted out and armed, or knowingly is concerned in the furnishing, fitting out, or arming of any vessel, with intent that such vessel shall be employed in the service of any foreign prince or state, or of any colony, district, or people, to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace, or whoever issues or delivers a commission within the territory or jurisdiction of the United States for any vessel, to the intent that she may be so employed, shall be fined not more than ten thousand dollars and imprisoned not more than three years. And every such vessel, her tackle, apparel, and furniture, together with all materials, arms, ammunition, and stores which may have been procured for the building and equipment thereof, shall be forfeited; onehalf to the use of the informer and the other half to the use of the United States."

The statute has been the subject of much judicial interpretation, in which the question of intent has been the determining factor. Dana, commenting upon this provision of the law as interpreted by the courts, says, in his notes to Wheaton's "Elements of International Law" (1866):

An American merchant may build and fully arm a vessel, and supply 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 performance 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.

The cases under the statute have therefore been decided accordingly as the evidence showed an intent formed within the limits of the United States to employ the vessel in the prohibited service.9

7 United States Statutes at Large, Vol. 35, Part 1, p. 1090; R. S. 5283. Page 563, note.

The Laurada (1900), 98 Fed. Rep. 983.

The legal requirement of strictly construing penal statutes has apparently in some cases caused the courts on the evidence submitted to place a narrower construction upon the statute than was intended by its framers and considering its history. The Executive branch in interpreting the Government's neutral obligations, has not, however, been hampered by any such requirement. During the Civil War it demanded of Great Britain the full performance of her duty as a neutral, the same as the United States had accorded to her three-fourths of a century before during her contest with France. The famous Alabama case, which was submitted to the arbitration of the Geneva Tribunal under the Treaty of Washington of 1871 was a result of this demand. Due to the insistence of the United States, the first rule of that treaty stated that a neutral government is bound

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. 10

The Alabama was a cruiser constructed in England for the Confederate States, and, although the Federal authorities had furnished the British Government with evidence of the hostile purpose for which the cruiser was intended, she was allowed to escape, but before taking on her equipment and armament, which were afterward supplied to her outside of British territorial waters by other ships from England. The arbitral tribunal, by an award dated September 14, 1872, allowed the United States the sum of $15,500,000 for the damages done to its commerce by the Alabama and sister ships, on the ground 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 No. 290 [the Alabama], 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." 11

10 Moore, International Arbitrations, Vol. I, p. 550.

11 Ibid., p. 655. The words "due diligence" were defined by the Tribunal as being the amount of diligence which "ought to be exercised by neutral governments in exact proportion to the risks to which either of the belligerents may

As to the effect of the first rule of the Treaty of Washington upon the doctrine of intent applied by the United States courts in interpreting the neutrality act, Dr. Freeman Snow,12 a leading authority, says:

In considering this question, it should be remembered that, by the introduction of steam as the motive power of ships, and of iron and steel as the material of their construction, the conditions of maritime warfare have been very radically changed. What might have been a reasonable rule as applied in the time of sailing ships might now, in the age of swift ironclads, be intolerably oppressive. In the cases of the Santissima Trinidad, U. S. v. Quincy, and the Meteor, the courts were dealing with small sailing vessels, which had been converted into privateers, the possession of which by one or the other belligerent made very little difference in the general result of the struggle; whereas, the possession of an ironclad ship might very well turn the scale one way or the other, as indeed it did in the war between Chile and Peru, in 1880-1881. This great power of inflicting injury upon one of the belligerents, it is fair to say, ought not to be permitted to neutral citizens; and the neutral nation is alone in a position to restrain them.

In view of these facts, it is believed that the doctrine set up by the United States Neutrality Act and by the Federal Courts, that the "intent" of the owner or shipbuilder is the criterion by which his guilt or innocence is to be judged, is wholly inadequate; it would not for a moment stand the test of the rule of "due diligence," as applied by the Geneva Tribunal.

The rules of the Treaty of Washington were not generally accepted as a statement of existing law between states, 13 but it was admitted that they showed evidence of a usage which might eventually ripen into law, which would prohibit the construction and fitting out of vessels of war in neutral countries, and the growth of such a usage was approved by leading writers. Thus Hall, in the 4th Edition of his work, says:

That the usage which is in course of growth extends the duties of a neutral state into new ground is plain; but it does not follow that the extension is either unhealthy or unnecessary. Though an armed ship does not differ in its nature from other articles merely contraband of war, it does differ from all in the degree in which it approaches to a completed means of attacking an enemy. The addition of a few trained men to its equipage, and of as much ammunition as can be carried in a small coasting vessel, adapts it for immediate use as part of an organized whole of which it is the most important element. The same cannot be said of any other article of contraband. It is neither to be expected nor wished that belligerent nations should be patient of

be exposed, from a failure to fulfil the obligations of neutrality on their part." Ibid., p. 654.

12 Snow, Cases, note on pp. 437-438. Cf. Scott, Cases, 720.

13 For a collection of views of leading publicists on the rules, see Moore, Arbitrations, Vol. I, pp. 670–678.