244 



DIPLOMATIC CORRESPONDENCE AND FOREIGN RELATIONS. 



by this clause refers only to the duty of preventing 

 the original departure of the vessel, and that the fact 

 that the vessel was, after the original departure from 

 the neutral port, commissioned as a ship-of-war, pro- 

 tects it against detention. 



To this point we rejoined, that a commission is no 

 protection against seizure in such case, and does not 

 operate to release the neutral from the obligation to 

 detain the offender. 



The Viscount d'ltajuba seemed to favor the Ameri- 

 can construction. He said : 



According to the latter part of the first rule of Article 

 VI. of the Treaty of Washington, the neutral ia bound also 

 to use due diligence to prevent the departure from its 

 jurisdiction of any vessel intended to cruise or carry on 

 war as above [viz., against a belligerent], such vessel hav- 

 ing been specially adapted, in whole or in part, within 

 its jurisdiction to warlike use. * * * If, then, a vessel 

 built on neutral territory for the use of a belligerent, 

 fraudulently and without the knowledge of the neutral, 

 comes again within the jurisdiction of the sovereign 

 whose neutrality it has violated, it ought to be seized and 

 detained. 



Count Sclopis says, on this point : 



It is on the nature of these special circumstances that 

 the first rule laid down in Article VI. of the Treaty of 

 Washington specifically rests. The operation of that rule 

 would be illusory, if it could not be applied to vessels sub- 

 sequently commissioned. The object in view is to prevent 

 the construction, arming, and equipping of the vessel, and 

 to prevent her departure when there is sufficient reason 

 to believe that she is intended to carry on war on behalf 

 of one of the belligerents; and, when probability has be- 

 come certainty, shall not the rule be applicable to the 

 direct and palpable consequences which it originally was 

 intended to prevent? 



In the award, the tribunal says that 

 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 afterward have granted 

 to that vessel; and the ultimate step by which the offence 

 is completed cannot be admissible as a ground for the 

 absolution of the offender, nor c^n the consummation of 

 his fraud become the means of establishing his innocence. 

 The privilege of exterritoriality, accorded to vessels of 

 war, has been admitted to the law of nations, not as an 

 absolute right, hut solely as a proceeding founded on 

 the principles of courtesy and mutual deference between 

 different nations, and therefore can never be appealed 

 to for the protection of acts done in violation of neu- 

 trality. 



It will be observed that the tribunal, instead of 

 adopting the recognition by the Viscount d'ltajuba 

 of a positive obligation on the part of the neutral to 

 detain the vessel, in the case supposed, limited itself 

 to expressing the opinion that, in such case, the neu- 

 tral would have the right to make such detention. 



4. Supplies of Coal. 



It was maintained in the American case that the 

 proofs showed that the insurgent cruisers were per- 

 mitted to supply themselves with coal in British 

 ports in greater quantities and with greater freedom, 

 and with less restrictions than were imposed upon 

 the United States ; and it was insisted that, in conse- 

 quence of these facts, there was an absence of neu- 

 trality, which made those ports bases of hostile 

 operations against the United States under the sec- 

 ond rule of the treaty. 



On this point the award says that 



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 per- 

 sons, or of place, which may combine to give them such 

 character. 



It does not appear by the terms of the award that 

 Great Britain is held responsible for the acts of any 

 vessel solely in consequence of illegal supplies of 

 coal. The question is, therefore, a speculative one, 

 so far as relates to this controversy. The opinions 



of the four arbitrators who signed the award furnish 

 however, the explanation of what they mean when 

 they speak of " special circumstances of time, of per- 

 sons, or of place." 



Mr. Adams says : 



I perceive no other way to determine the degree of re- 

 sponsibility of a neutral in these cases, than oy an ex- 

 amination of .the evidence to show the intent of the grant 

 in any specific case. Fraud or falsehood in such a case 

 poisons every thing it touches. Even indifference may 

 degenerate into wilful negligence, and that will impose 

 a burden of proof to relieve it before responsibility can 

 be relieved. 



Count Sclopis says: 



I will not say that, the simple fact of having allowed a 

 greater amount of coal than was necessary to enable a 

 vessel to reach the nearest port of its country constitutes 

 in itself a sufficient grievance to call for an indemnity 

 As the Lord-Chancellor of England paid on the 12th of 

 June, 1871, in the House of Lords, England and the United 

 States equally hold the principle that it is no violation of 

 the law of nations to furnish arms to a belligerent. But 

 if an excessive supply of coal is connected with other 

 circumstances which show that it was used as a veritable 

 reshostilis, then there is an infraction of the second arti- 

 cle of the treaty. * * * Thus, for example, when I see 

 the Florida and the Shenandoah choose for tbe,ir fields 

 of action, the one the stretch of sea between the Bahama 

 Archipelago and Bermuda, to cruise there at its i 

 and the other Melbourne and Hobson's Bay, for the 

 pose immediately carried out, of going to the arctic 

 there to attack the whaling-vessels, I cannot but 

 the supplies of coal, in quantities sufficient for such 

 vices, infractions of the second rule of Article VI. 



Mr. Stampfli says of the Sumter: 



The permission given to the Snmterto remain and take 

 in coal at Trinidad does not of itself constitute a sufficient 

 basis for accusing the British authorities of having failed 

 in their duties as neutrals, because the fact cannot be con- 

 sidered by itself, since the Sumter both before and after 

 that time was admitted into the ports of many other 

 states where it stayed and took in coal * * * so that it 

 cannot be held that the port of Trinidad served as a " 

 of operations. 



But of the Shenandoah he says : 



A supply of coal was not a necessary condition of 

 tral asylum, and in supplying her with so large a qua: 

 of coal, the capacity of the ship for making war was 



creased just as much as by the recruitment of her ere 

 which took place. 



The Viscount d'ltajuba, at the thirty-first con 

 ence, while signing the decision, remarked with re- 

 gard to the recital concerning the supply of coals, 

 that he is of the opinion that every government is 

 free to furnish to the belligerents more or less of f 

 article. 



5. TJie Municipal Laws of England. 



It was maintained in the American case that 

 liability of Great Britain should be measured by 

 rules of international law; and that it could not 

 escaped by reason of any alleged deficiencies in 

 internal legislation enacted for the purpose of ena 

 bling the government to fulfil its international duties. 



The pleadings and arguments on the part of Great 

 Britain are filled with denials of this proposition in 

 every possible way, from the opening case to the last 

 supplemental argument of Sir Roundell Palmer. 



The awai-d says : u The Government of her Britan- 

 nic Majesty cannot justify itself for a failure in due 

 diligence on the insufficiency of the legal means of 

 action which it possessed." 



6. The Sumter, the Nashville, etc. 

 It was maintained in the American case that, under 

 the terms of the Treaty of Washington, the parties 

 had agreed to submit to the decision of the tribunal 

 of arbitration, not only the claims growing out of the 

 acts of the Florida, the Alabama, the Georgia, and 

 the Shenandoah, which originally proceeded from 

 ports of Great Britain, but also all claims growing out 

 of the acts of other cruisers, such as the Nashville, 

 the Sumter, etc., which could in any way be shown 

 to have used British ports as bases of supplies. The 



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