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. C 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. Sec. 47. c Sec. 53. d Law of Torts, 353, 372. 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 "substantive 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. For an adverse criticism of the rules, see Wharton, Commentaries on See, also, Twiss, Law of Nations in Time of War (2d ed.), Introduction, VIII. STATE OF BELLIGERENCY. 1. ESSENTIAL, AS AGAINST TITULAR GOVERNMENT § 1331. "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 Haytian 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 should be neutral. The supplies in question are destined for the aid of the legitimate Government in the maintenance of its integrity against insurgents." Mr. Seward, Sec. of State, to Mr. Wheelwright, Sept. 15, 1868, 79 MS. “Valuable assistance was rendered by the Japanese authorities to the United States transport ship Morgan City while stranded at Kobe. Permission has been granted to land and pasture army horses at Japanese ports of call on the way to the Philippine Islands. These kindly evidences of good will are highly appreciated." President McKinley, annual message, Dec. 5, 1899, For. Rel. 1899, xxv. 2. NOT ESSENTIAL, AS AGAINST DISTURBERS OF PEACE. § 1332. July 10, 1810, Peter A. Schenck, surveyor of the port of New York, acting on the written direction of David Gelston, collector of the port, seized the ship American Eagle and certain ballast, provisions, and stores, forming part of her equipment, all the property of Goold Hoyt, for a violation of section 3 of the act of 1794. On the trial, before the United States district court, the ship and other property were acquitted, and the court refused to give a certificate of reasonable cause of seizure. In January, 1813, Hoyt brought an action of trespass against Gelston and Schenck in the supreme court of the State of New York for damages for the seizure. The defendants pleaded, in substance, (1) that the seizure of the ship was justified because she was attempted to be fitted out and armed, with intent to be employed in the service of a foreign state (viz. that part of the island of St. Domingo then under the dominion of Petion) to commit hostilities upon the subjects of another foreign state with whom the United States was at peace (viz, that part of St. Domingo then under the government of Christophe); and (2) that the seizure was made by authority of the President of the United States under section 7 of the act of 1794. On demurrer these pleas were overruled, and on the trial a judgment for damages was entered for the plaintiff. This judgment was affirmed by the New York court of errors and appeals, and the case was then brought before the Supreme Court of the United States. Mr. Justice Story, delivering the opinion of the court, held (1) that the defendants, as officers of the customs, had a right to make the seizure, if there were sufficient grounds for it; (2) that the sentence of acquittal of the United States district court, with a denial of a certificate of reasonable cause, was conclusive evidence that the seizure was tortious, and precluded the litigation of the question in any other forum, e. g., in the courts of the State of New York; (3) that, as no evidence was offered in the State court to prove that Petion or Christophe was recognized by the United States or France as a government, it did not belong to that court to take judicial notice of the matter and decide affirmatively that Petion and Christophe were foreign princes within the purview of section 3 of the act of 1794; (4) that section 7 of the act of 1794 did not confer on the President the power to order a seizure, but only to call out the military and naval forces when necessary to enforce a seizure; (5) that the judgment of the New York court of errors and appeals was affirmed, with damages at 6 per cent from the date of its rendition, with costs. On point "(3)" Mr. Justice Story said: "No doctrine is better established than that it belongs exclusively to governments to recognize new states in the revolutions which may occur in the world; and until such recognition, either by our own. Government, or the government to which the new state belonged, courts of justice are bound to consider the ancient state of things as remaining unaltered. This was expressly held by this court in the case of Rose v. Himely (4 Cranch, 241), and to that decision on this point we adhere. And the same doctrine is clearly sustained by the judgment of foreign tribunals. (The Manilla, 1 Edwards, R. 1; The City of Berne v. The Bank of England, 9 Ves. 347; Dolden v. Bank of England, 10 Ves. 353, 11 Ves. 283.) If, therefore, this were a fact proper for the consideration of a jury, and to be proved in pais, the court below were not bound to admit the other evidence, unless this fact was proved in aid of that evidence, for without it no forfeiture could be incurred. If, on the other hand, this was matter of fact, of which the court were bound judicially to take cognizance, then the court were right in rejecting the evidence, for as far as we have knowledge, neither the government of Petion or Christophe have ever been recognized as a foreign state, by the Government of the United States, or of France." In view of the decision that the United States district court's judgment of acquittal without a certificate of reasonable cause established the tortious character of the seizure, the foregoing expression of opinion upon the question of recognition was more or less obiter. Mr. Justice Johnson, while concurring in the judgment of the court, stated in a brief opinion that he considered that the court had decided only (1) that the State court was incompetent to try the question of forfeiture, and (2) that section 7 of the act of 1794 gave the President power merely to call out the Army and Navy when necessary to enforce a seizure. Gelston r. Hoyt (Feb. 27, 1818), 3 Wheat. 246. In section 3 of the act of 1794, under which this case was tried, the words used were foreign prince or state." The defect disclosed in these |