States might content themselves with a reference to the history of the legislation of the two countries, as a complete answer, to such an assertion. While the subjects or citizens of either country have been left by law free to manufacture or sell muskets or gunpowder, or to export them at their own risk, even if known to be for the use of a belligerent, the legislatures, the executives, and the judiciaries of both Great Britain and the United States have joined the civilized world in saying that a vessel of war, intended for the use of a belligerent, is not an article in which the individual subject or citizen of a neutral State may deal, subject to the liability to capture as contraband by the other belligerent. Such a vessel has been and is regarded as organized war-more clearly organized war than was that unarmed expedition which left [195] Plymouth in 1828 for Portugal,' and was arrested *by the British

navy at the same Terceira to which the Alabama fled to receive the arms and ammunition that she failed to take on board at Liverpool, either because the purposes of the Foreign Office were surreptitiously revealed, or because the insurgent agents had reason to believe that they could evade the law by the construction of the vessel on one side of the river Mersey, the collection of the armament on the other side of it, and the putting them together more than three miles out at sea.

It is not, however, necessary for the United States to rely in this respect upon the action of the several branches of the Governments of the two countries. The question has been considered by several of the leading publicists of the Continent. Ortolan, in his "Diplomatie de la mer," says, in addition to what has already been cited:

Opinion of Ortolan.

"A part toute prohibition faite législativement par telle ou telle nation, il faut, en droit international, considérer comme des actes décidément contraires à la neutralité, l'équipement, et l'armement et, à plus forte raison, la construction dans les ports neutres de bâtiments de guerre appartenant aux belligérants, ou destinés, par concert

ostensible ou dissimulé avec les belligérants par à être remis en leur [196] pouvoir. Nous croyons fermement *qu'il est impossible d'assimiler

de pareils actes à la contrebande de guerre proprement dite et que l'obligation pour un état neutre de s'opposer à ce qu'ils aient lieu sur son territoire est indépendante de toute loi intérieure ou particuliére à cet état; que la loi intérieure peut et doit sanctionner cette obligation, mais qu'elle ne saurait ni la créer ni la détruire, parceque c'est une obligation qui résulte uniquement de la loi internationale, laquelle défend d'user, dans un but hostile, du territoire neutre.”

Heffter,3 the distinguished German publicist, says to the And of Heffer.

same effect:

"C'est un devoir général pour les peuples restés spectateurs tranquilles de la lutte, de n'y prendre aucune part active, ni de participer directement aux actes de la guerre. Les gouvernements, les sujets étrangers qui fournissent à l'un des belligérants des secours directs

During the contest in Portugal between Don Miguel and Donna Maria II, an unarmed expedition of the adherents of Donna Maria left Portsmouth, ostensibly for Brazil, but really for the Azores. The British Government of that day pursued it to Terceira, fired into it and broke it up; and they were sustained in the House of Lords by a voté of 126 to 31, and in the House of Commons by a vote of 191 to 78. (Hansard for 1830, Vol. XXIII. See also Annual Register for 1829, and Phillimore's International Law, Vol. I, page 229, et seq.) The Tribunal of Arbitration will not fail to observe how dif ferently the powers and duties of the Government were construed by the British Government when it was a question of the disintegration and disruption of the commerce of the United States.

2 Diplomatie de la mer, Ortolan, tome 2, page 214.

3 Heffter, Droit international, (French translation by Jules Bergson, Paris,) page 296. S. Ex. 31—————6

commettent une violation du devoir de la neutralité, un acte d'immixion dans les hostilités auquel l'adversaire est en droit de s'opposer par tous les moyens. Dans la pratique on regarde comme de tels actes d'hos

tilité :

"1o, le transport volontaire des soldats, matelots et autres hommes de guerre;

6600

20, la construction dans les ports neutres de vaisseaux de guerre on de commerce pour le compte de l'ennemi dès leur sortie; *3°, le transport volontaire de dépêches de l'un des belligé [197]

rants.

"Ces diverses contraventions, lorsqu'elles sont régulièrement constatées, entraînent la saisie et la confiscation du navire employé au transport. La confiscation s'étend également à la cargaison, si il est établi que les propriétaires avaient connaissance du but illicité du voyage. Tontefois cette pénalité n'est pas toujours exécutée à leur égard avec la même sévérité. En réalité elle constitute un acte de légitime défense auquel le neutre qui se rend complice de l'un des belligérants ne saurait échapper du côté de l'adversaire.

"En dehors des cas qui viennent d'être énumérés, il existe encore un certain nombre d'objets dont le commerce est regardé, d'une manière plus ou moins générale dans la pratique des états, comme prohibé. Il constitute la contrabande de guerre proprement dite."

Case of the Santis

Without wearying the patience of the Tribunal in the further discussion of this question, it will be assumed that a vessel of ima Trinidad. war is not to be confounded with ordinary contraband of war. Indeed, the only respectable authority which has been cited even apparently to the contrary, is an observation which Mr. Justice Story thrust into the opinion of the Supreme Court of the United States, upon the case of the Santisima Trinidad.1 *If that eminent jurist [198] had said that a vessel of war was to be regarded in public law as an article which might be legitimately constructed, fitted out, armed, equipped, or dealt in by a person in the territory of a neutral, with the intent that it should enter the service of a belligerent, subject only to a liability to capture as contraband of war by the other belligerent, the United States would have been forced, with great regret, to ask this tribunal to disregard an opinion so at variance with common sense, and with the whole current of the actions of nations. Happily they are under no necessity of casting an imputation on the memory of one of their brightest judicial ornaments.

During the last war between the United States and Great Britain a privateer, called the Monmouth, was constructed at Baltimore, and cruised against the enemy. After the peace she was stripped of her armament, and converted into a brig. She was subsequently loaded with munitions of war, armed with a portion of her original armament, and sent to Buenos Ayres, (which was then a revolted colony of Spain recognized as a belligerent, but not recognized as an independent government,) to find a market for her munitions of war. The supercargo was also authorized "to sell the vessel to the Government of Buenos Ayres if he could obtain a suitable price." He did sell her, and she *went into the service of that Government as a man-of-war. She [199] subsequently put into a port of the United States, and while there enlisted thirty new men, and took with her, when she put to sea, the newly enlisted men, and a tender, which carried some mounted guns and twenty-five men. After this addition to her effective power for in

17 Wheaton's Reports, page 283.

jury, assisted by the tender, she captured the Spanish vessel Santisima Trinidad, and carried her cargo into Norfolk, one of the ports of the United States. On the instigation of the Spanish authorities, proceedings were taken for the restitution of this property, on the ground, first, that the Independencia had been originally illegally fitted out, armed, or equipped in the United States; secondly, that she had, after entering the service of Buenos Ayres, illegally recruited men and augmented her force within the United States. The court decreed a restitution of the property on the second ground. Any remarks, therefore, upon the first point were outside of the requirements of the case, and, under the American practice, would be regarded as without authority; but inasmuch as they were made by one of the most eminent writers on public law, they deserve the consideration which they have received. Taking them in con

nection with the facts as shown in evidence, it is clear that the dis[200] tinguished judge intended to con*fine his statement to the case

of a vessel of war equipped and dispatched as a commercial venture, without previous arrangement or understanding with the belligerent, and at the sole risk of the owner. "It is apparent," he says, "that she was sent to Buenos Ayres on a commercial venture." The whole of his subsequent remarks turned upon the absence of an intent, in Baltimore, in the mind of the owner, before she sailed, that she should, in any and at all events, whether sold or not, go into the service of the belligerent.

The judges who were brought in contact with the witnesses in that case, and had access to all the original papers, and knew personally both the men and the facts, and who, therefore, had opportunities which are denied to us of judging of the merits of the case, seem to have reached the conclusion that this particular transaction was a purely commercial venture; and they placed the decree of restitution of the captured property upon later violations of law. It may, however, be said that the ordinary experiences of human life show that such deeds border upon the debatable ground between good faith. and fraud. The court which decided that case evidently did so on the impressions which

the judges received from the particular evidence before them; [201] for, on the very next *day, the most illustrious of Controlled by the

American judges, John Marshall, then Chief Justice case of the GranPara. of the United States, in the parallel case of the Irresistible, a vessel built at Baltimore, sent to Buenos Ayres, and there commissioned as a privateer, pronouncing the opinion of the same court, declared that the facts as to the Irresistible showed a violation of the laws of the United States in the original construction, equipment, and arming of the vessel; and that, should the court decide otherwise, the laws for the preserration of the neutrality of the country would be completely eluded.1 In instice to the highest court of the United States, these two cases should De read together by all persons wishing to know its views upon the duties of a neutral nation in time of war, since if there be any difference in the principles involved in the two cases, then the true construction of the law is to be found in the carefully considered language of the court in the case of the Gran Para. The cases were both argued in February, 1822: the Gran Para upon the 20th, and the Santisima Trinidad on the 28th. The opinions were delivered in March: that of the Santisima Trinidad on the 12th; that of the Gran Para on the 13th. There can be no doubt that they were considered together in the [202] consultation-room. Therefore any apparently broad or ill *con

1 The Gran Para, 7 Wheaton's Reports, 471.

Effect of a com

sidered expressions in the opinion rendered on the12th of mission of the of March are to be regarded as limited and corrected by the carefully considered expressions of the Chief Justice on the

fender as a vessel of

war.

following day.

Having thus demonstrated that the principles for which the United States contend have been recognized by the statesmen, the jurists, the publicists, and the legislators of Great Britain; that they have the approbation of the most eminent authorities upon the continent of Europe; and that they have been regarded by the other Powers of Europe in their dealing with each other, it only remains to show how the liability of the neutral for the acts of cruisers illegally built, or equipped, or fitted out, or armed within its ports, may be terminated.

It has been intimated, in the course of the discussions upon these questions between the two Governments, that it may be said, on the part of Great Britain, that its power to interfere with, to arrest, or to detain either of the belligerent cruisers whose acts are complained of ceased when it was commissioned as a man-of-war; and that, consequently, its liability for their actions ceased.

The United States might well content themselves with calling the attention of the Tribunal of Arbitration to the utter uselessness discussing these questions, if the liability to make com*pensation [203] for the wrong can be escaped in such a frivolous way. It is well known how the several British-built and British-manned cruisers got into the service of the insurgents. Few of them ever saw the line of the coast of the Southern insurgent States. The Florida, indeed, entered the harbor of Mobile, but she passed the blockading squadron as a British man-of-war. In most cases the commissions went out from England-from a branch office of the insurgent Navy Department, established and maintained in Liverpool at the cost and expense of the insurgent (so-called) Government. From this office the sailing orders of the vessels were issued; here their commanders received their instructions; and hence they departed to assume their commands and to begin the work of destruction. They played the comedy of completing on the high seas what had been carried to the verge of completion in England. The parallel is complete between these commissions and those issued by Genet in 1793, which were disregarded by the United States at the instance of Great Britain. If a piece of paper, emanating through an English office, from men who had no nationality recognized by Great Britain, and who had no open port into which a vessel could go unmolested, was potent not only to legalize the depredations of British built and manned cruisers *upon the commerce of the United [204] States, but also to release the responsibility of Great Britain therefor, then this arbitration is indeed a farce. Such, however, cannot be the case.

Sir Roundell Palmer, the Attorney General of Lord Palmerston's Opinion of Sir Cabinet, as well as of the present Government, well said, in Roundell Palmer. the House of Commons, in 1864, when defending the course of Great Britain as to the Tuscaloosa, a tender of the Alabama, "Can it be said that a neutral Sovereign has not the right to make orders for the preservation of his own neutrality, or that any foreign Power whatever violating these orders, provided it be done willfully or fraudulently, is protected to any extent, by International Law, within the neutral territory, or has the right to complain, on the ground of International Law, of any means which the neutral Sovereign may see fit to adopt for the assertion of his territorial rights?" * "It is a mere ques

*

tion of practical discretion, judgment, and moderation what is the proper way of vindicating the offended dignity of the neutral Sovereign." 1 The United States do not deny the force of the commission of a manof-war issuing from a recognized Power. On the contrary,

2

Opinion of Chief

they point with a pardonable pride to the exhaustive Justice Marshall. [205] language of *Chief Justice Marshall on this subject as evidence of what they understand to be the practice of nations. Nor do they deny that since Great Britain had, however precipitately and unjustly, recognized the existence of a civil war between the United States and the insurgents, and avowed a determination to remain neutral between the parties, she might, without a violation of the law of nations, commit the further injustice of allowing to such vessels of war of the insurgents as had not been built, armed, equipped, furnished, fitted out, supplied, or manned within her territory, in violation of her duty to the United States, the same rights of asylum, hospitality, and intercourse which she conceded to the vessels of war of the United States. They do, however, most confidently deny that the receipt of a commission by a vessel like the Alabama, or the Florida, or the Georgia, or the Shenandoah, exempted Great Britain from the liability growing out of the violation of her neutrality. To this point they are fortunately able to cite two from the many pertinent cases adjudicated in the Supreme Court of the United States, which show directly what the public law in this respect is understood to be, not only by the United States, but also by Spain and by Portugal.

Supreme Court of the

ma Trinidad and the

[206] *The first is the case of the Santisima Trinidad,3 the facts of which have already been given. The property for Decision of the which restitution was claimed in this case was Spanish. United States in the The libel was filed by the Spanish Consul at Norfolk on be- cases of the Santisi half of the owners. The capture was shown to have been Gran Para. made after a commission to the vessel, expressly recognized by the court rendering the decision. Nevertheless, restitution was decreed on the ground of an illegal increase of armament in the neutral territory after the commission.

4

The second case is that of the Gran Para, also already alluded to. The libel was filed by the Consul General of Portugal. The opinion of the court was given by Chief Justice Marshall. The facts are set forth so clearly in the opinion that no other statement is necessary. The Chief Justice, in announcing the judgment of the court, said:

"The principle is now firmly settled that prizes made by vessels which have violated the acts of Congress that have been enacted for the preservation of the neutrality of the United States, if brought within their territory, shall be restored. The only question, therefore, is, Does this case come within the principle?

"That the Irresistible was purchased, and that she sailed out [207] of the port of Baltimore, armed *and manned as a vessel of war, for the purpose of being employed as a cruiser against a nation with whom the United States were at peace, is too clear for controversy. That the arms and ammunition were cleared out as cargo cannot vary the case. Nor is it thought to be material that the men were enlisted in form as for a common mercantile voyage. There is nothing resembling a commercial adventure in any part of the transaction. The vessel was constructed for war and not for commerce. There was no cargo on board but what was adapted to the purposes of war. The crew was

1 Hansard, 3d series, vol. 174, page 1595.

2 The Schooner Exchange against McFadden et al., 7 Cranch's Reports, 116. 37 Wheaton, 283.

47 Wheaton, 471.