*Mr. Justice Story has elaborately discussed the meaning of [154] these terms, and the extent of diligence required to avoid responsibility. He says, as the result of a comparative examination of the authorities of different nations, "What is usually done by pru*dent men in a particular country in respect to things of a like [155] nature, whether it be more or less, in point of diligence, than what is exacted in another country, becomes in fact the general measure of diligence."1

Following the example of Sir William Jones, and other writers [156] on the civil law, Mr. Justice Story favors the idea that there may be three degrees of diligence, and three degrees of negligence, which are capable of being accurately defined and applied to the various circumstances of life. But while asserting, as the authorities supported him in doing, that not only the Roman law, but the jurists of Continental Europe and of Scotland all recognize this division, he candidly concedes the difficulty of applying such a fictitious system, and he is obliged to admit the general and only sound principle, that "diligence is usually proportioned to the degree of danger of loss, and that dan

levissima too. The first denotes a negligence extremely blamable; that is to say, such a negligence as is not tempered with any kind of diligence. The other imports such a kind of negligence, whereby a person does not employ that care in men's affairs which other men are wont to do, though he be not more diligent in his own business. But as often as the word culpa is simply used in the law, it is taken for that which we style oulpa levis, a light fault, because words are ever understood in the more favorable sense. A culpa levissima, or simple negligence, is that which proceeds from an unaffected ignorance and unskillfulness, (say they,) and it is like unto such a fault, which we easily excuse, either on the account of age, sex, rusticity, &c. Or, to set the matter in a clearer light, a lata culpa is a diligence in a man's own affairs, and a negligence in the concerns of other men. And a levis culpa is, when a man employs the same care or diligence in other men's affairs as he does in his own, but yet does not use all care and fidelity which more diligent and circumspect men are wont to make use of; and this may be called an accustomed negligence as well in a man's own affairs as in the business of other men. A lata culpa, I mean a great fault, is equivalent or next unto deceit or malice. And it may be said to be next unto deceit or malice two ways, namely, either because it contains in it a presumptive deceit, as when a man does not use the same diligence in another's concerns as in his own; or else because the fraud is so gross and inexcusable, that, though fraud be not presumed, yet it differs but little from it. As when a person becomes negligent in favor of a friend; for though favor, or too great a facility of temper, excuses a man from malicious or knavish purposes, yet it is next of kin thereunto. And it is a rule laid down in law, that when the law commands any act of deceit to be made good, it is also always understood of a lata culpa, or a gross fault. Wherefore, since a great fault is equivalent or next unto deceit, it follows, that in every disposition of law where it is said that an evil intent or dolus ought only to be repaired, it is to be understood also of a lata culpa; which is true, I think, unless it be in the Cornelian law de Sicariis. For he who commits the crime of murder ex latâ culpâ, shall be punished according to the severity of that law, but in a more gentle manner; and thus herein a lata culpa is distinguished from malice, or an evil design, called dolus malus; for a murderer is liable on the score of his wicked purpose, and not on the account of gross negligence. Some say, that generally speaking, whenever the law or an action is touching a pecuniary penalty, and the law expressly mentions a dolus, a lata culpa is insufficient, and is excluded."

Numerous authorities to the same effect might be cited; but it will suffice at this stage to refer to such as are most familiar to jurists in Great Britain and the United States.

Domat's Civil Law by Strahan, vol. 1, p. 317.

Heineccius, Elementa Juris Civilis, lib. 3, tit. 14, Opera, tom. V.

ger is, in different states of society, compounded of very different elements."1

The highest court of the United States has doubted the philosophy of grading the degrees of diligence and negligence into fixed classes." The Scottish courts have laid down a rule which is perhaps more philosophical-that where an injury has been suffered through the act or omission of another, it must be shown, in order to avoid liability, that the accident was caused without any fault of the party doing or suffering the act or omission, and through some latent cause, which could not be discerned, obviated, controlled, or averted.3

[157] *In the discussion upon the Treaty of Washington in the House of Lords, Lord Granville, the Minister for Foreign Affairs, is represented as saying: "The obligation to use due diligence implies that the Government will do all in its power to prevent certain things, and to detain vessels which it has reasonable ground for believing are designed for warlike purposes."4 Lord Cairns, in the same debate, is represented as saying: "The point turns upon the words 'due diligence.' Now, the moment you introduce those words you give rise to another question, for which I do not find any solution in this rule. What is the standard by which you can measure due diligence? Due diligence by itself means nothing. What is due diligence with one man, with one Power, is not due diligence with another man, with a greater Power." Sir Roundell Palmer, in a subsequent debate in the House of Commons, said that he supposed that due diligence "meant that a neutral should use, within a reasonable sense, all the means legitimately in its power."5

It is needless to say that the United States do not agree in these official definitions by Lord Granville and Sir Roundell Palmer, in the [158] sense in which *they are probably made. The definition to which

Lord Cairns has given the weight of his authority appears to be nearer to the opinions as to these words, entertained by the United States.

The United States understand that the diligence which is called for by the Rules of the Treaty of Washington is a due diligence; that is, a diligence proportioned to the magnitude of the subject and to the dignity and strength of the Power which is to exercise it:-a diligence which shall, by the use of active vigilance, and of all the other means in the power of the neutral, through all stages of the transaction, prevent its soil from being violated:-a diligence that shall in like manner deter designing men from committing acts of war upon the soil of the neutral against its will, and thus possibly dragging it into a war which it would avoid :-a diligence which prompts the neutral to the most energetic measures to discover any purpose of doing the acts forbidden by its good faith as a neutral, and imposes upon it the obligation, when it receives the knowledge of an intention to commit such acts, to use all the means in its power to prevent it.

No diligence short of this would be "due;" that is, commensurate with the emergency, or with the magnitude of the results of negligence. Understanding the words in this sense, the United States finds them identical with the measure of duty which Great Britain had previously admitted.

1 Story on Bailments, § 14.

2 Steamboat New World vs. King, 17 Howard Reports, page 475. See also the author ities there cited.

3 Hay on Liabilities, ch. 8.

4 London Times, June 13, 1871.

5 A speech delivered in the House of Commons, on Friday, August 4, 1871, by Sir Roundell Palmer, M. P. for Richmond. London and New York, Macmillan & Co., 1871, page 28.

*It will also be observed that fitting out, or arming, or equip- [159 ping, each constitutes in itself a complete offense.

Fitting out, arming, or each an offense.

equipping Therefore a vessel which is fitted out within the neutral's jurisdiction, with intent to cruise against one of the belligerents, although not equipped or armed therein, (and vice versa) commits the offense against International Law, provided the neutral government had reasonable ground to believe that she was intended to cruise or carry on war against such belligerent, and did not use due diligence to prevent it.

of the first Rule.

The neutral is required by the second clause of the first Rule of the The second clause Treaty to prevent the departure from its jurisdiction of any vessel intended so to cruise or carry on war, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use.

Reasons for change of language.

The Tribunal of Arbitration probably will not have failed to observe that a new term is employed here. In the first clause of the first Rule the obligation of the neutral is limited to the prevention of the "fitting out, arming, and equipping" the vessel. In the second clause, the language is much broader: a vessel which has been "specially adapted, in whole or in part, to warlike use," may not be permitted to depart. The reasons for this change may probably be found in the different interpretations which have been put by the Exe*cutive and Judicial Departments of the two Governments upon [160] the words "fitting out" and "equipping," and in the desire of the negotiators of the Treaty to avoid the use of any words that could be deemed equivocal. The United States will endeavor to explain to the Tribunal what these differences of interpretation were.

The eighth section of the United States law of 1818 empowers the President to take possession of and detain vessels which have been "fitted out and armed" contrary to the provisions of the act. In the year 1869, while there was a state of recognized war between Spain and Peru, (although there had been no active hostilities for several years,) the Spanish Government made contracts for the construction of thirty steam gun-boats in the port of New York. After some of these boats were launched, but while most of them were on the stocks, and before any had received machinery or had been armed, the Peruvian Minister, on behalf of his Government, represented to the Government of the United States that this was being done in violation of the neutrality of the United States. The President, proceeding under the section of the statute above referred to, took possession of the vessels, and they remained in the custody of the naval forces of the United States until they were released, with *the consent of the Peruvian Minister at [161] Washington. This was done under the assumption that the construction of a vessel in neutral territory during time of war, which there is reasonable ground to belive may be used to carry on war against a power with which the neutral is at peace, is an act which ought to be prevented; and that the constructing or building such a vessel was included in the offense of fitting it out. The same interpretation (in substance) has been given to this language by the judicial authorities of the United States.1 The British tribunals have given a different opinion upon the meaning of these words. In the case of the Alexandra,2 against which proceedings were had in London, in 1863, for an alleged violation of the provisions of the act of 1819, it was held that the proof

1 United States rs. Quincy, 6 Peters's Reports, 445.
2 Vol. V, pages 3-470.

of the construction of a vessel for the purpose of hostile use against the United States did not establish such an equipment, or fitting out, or furnishing, as would bring the vessel within the terms of the Foreign Enlistment Act1 and enable the Government to hold it by proceedings

under that statute. When the Joint High Commissioners met [162] at Washington, *and had to consider what words they would use

in the Treaty, they found the Executive of the United States and the Judiciary of Great Britain differing as to the meaning of these important words.2 The Tribunal of Arbitration may therefore reasonably presume that the framers of that Treaty, after the experience of the American insurrection, sought for language which would, beyond any question, indicate the duty of the neutral to prevent the departure from its ports of any vessel that had been specially adapted 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.

The undoubted duty of the neutral to detain such a vessel, although it had not been formulated by Great Britain in any of the acts prior to 1861 which have been passed in review, is understood to have been included in the obligation to prevent her construction. The United States

regard this duty as one that existed by the law of nations prior [163] to the Treaty of Washington; but as that *Treaty provides that,

for the purpose of the present discussion, the rule is to be taken as having the force of public law during the Southern Rebellion, it is needless to discuss that point.

Continuing force of

The 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 this ride. 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 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.

Duty to detain

The British Government, certainly once, if not oftener, during the rebellion, admitted its duty to detain these cruisers. Mr. Cobden stated it forcibly in a speech in the House of Com- offending vessels admons:3 "The Government admit, through their legal ad- Britain.

mitted by Great

viser, that they have the power, if they choose to exercise it, to [164] prevent these vessels from entering our *harbors; but the honor

able and learned gentleman doubts the expediency of exercising it, and his reason is that he thinks we have not clear proof of guilt. This brings me to a striking piece of inconsistency on the part of the

This opinion was on the Act of 1819. The Act of 1870 provides that "equipping shall include the furnishing a ship with any tackle, apparel, furniture, provisions, arms, munitions, or stores, or any other thing which is used in or about a ship for the purpose of fitting or adapting her for the sea or for naval service."

2"It is perfectly true that Lord Chief Baron Pollock and Baron Bramwell, as well as other great legal authorities, thought that such words as these did not convey the true meaning of our then Foreign Enlistment Act; which, in their opinion, was intended to apply only to those vessels which might be armed within our jurisdiction, either completely or at least so far as to leave our waters in a condition immediately to commence hostilities."-Sir R. Palmer's Speech, August 4, 1871, page 32.

3 Vol. V, page 590.

honorable and learned gentleman. He begins with administering a solemn exhortation, and something like a solemn reproof to English shipbuilders, for infringing our neutrality laws and disregarding the Queen's Proclamation by building these ships. Well, but if they are violating our neutrality and disregarding the Queen's Proclamation, it must have been because they built these vessels for a belligerent to be employed against some Power with which we are at peace. The honorable and learned gentleman assumes that these individuals are guilty of these acts. He knows they have been guilty of these acts; he knows that these three vessels in particular, and the Alabama more especially, have been built for the Confederate Government, and employed solely for that Government, and yet he doubts the expediency of stopping them from entering our ports. He speaks as though we were asking that he should send out ships of war to order away these vessels without trial. He says there must be legal proof; but it does not require legal proof to warrant you in telling a Government, 'You have got these vessels clandestinely; you got them by the infringement of our neutrality *code, or, at least we suspect you upon fair grounds of doing [165] so; and unless you prove that they came legitimately into your hands, we must refuse them the hospitality of our ports.' Why, how do you act in private life? You hear charges and reports compromising the honor of your acquaintance or friend. You may have a moral conviction in your mind that that individual's honor is compromised, but you may not have legal proof of it, and still you may be quite justified in saying to him, 'Until you clear up these charges, which on the face of them criminate you, I must refuse you the hospitality of my house.' I hold that you have the right to say the same thing in regard to these cruisers. But what was the course of the Government in the case of the Alabama? They told Mr. Adams, the American Minister, that they should give orders to stop the Alabama, either at Queenstown or Nassau. Therefore the principle was recognized in the case of that vessel that you had a right to stop her when she reached your jurisdiction. I say, therefore, in the same way, prevent their entering your harbors until they give an account of themselves, to show how they became possessed of that vessel. This has a most important bearing, and one so apparent that it must be plain to the apprehensions of every honorable gentleman who hears it.”

The French Government, during the insurrec*tion, practically [166] Also recognized by asserted the same power in the neutral to protect its

France.

violated sovereignty. The British Government in 1864 sold a screw gun-boat to persons who proved to be agents of the insurgents. This was done at a time when it was a matter of public notoriety that those agents were in England making great efforts to fit out a navy. The purchasers took the vessel to Calais to complete the equipment. On the way from the Thames to Calais the name of the vessel was changed to the "Rappahanock," the insurgent flag was hoisted, an insurgent officer, holding an insurgent commission, took the command, and the crew were mustered into the service of the insurgents. On arrival at Calais, attempts were made to complete the equipment. The French Government stopped this by placing a man-of-war across the bows, and holding the vessel as a prisoner, and the Rappahannock was thus prevented from destroying vessels and commerce, sailing under the flag of a nation with which France was at peace.

The second Rule provides that a neutral government is bound not to The second Rule permit or suffer either belligerent to make use of its ports of the Treaty. or waters as the base of naval operations against the other,