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provision for the future, agrees that in deciding the questions between the two countries arising out of those claims, the arbitrators should assume that her Majesty's government had undertaken to act upon the principles set forth in these rules." "And the High Contracting Parties agree to observe these rules as between themselves in future, and to bring them to the knowledge of other maritime powers, and to invite them to accede to them."

Before an award had been rendered, an attempt was made to carry out the provision of the treaty, which requires the communication of the three rules to other powers, asking their adoption of them. It had been proposed to present them in identical notes. A delay arose from the apprehension that the stipulation of the second rule, "not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies, or arms, or the recruitment of men," might be interpreted contrary to the acknowledged practice of the two contracting parties, especially in the Franco-German war, as a general prohibition of the sale of munitions of war by neutrals to belligerents. The two parties were agreed that the rule should not be presented to foreign powers for their acceptance without an explanation which would prevent such a conclusion, and which would restrain their operation to those acts which are done for the service of a vessel cruising or carrying on war, or intending to cruise or carry on war against another belligerent, and that they should not extend to cases where military supplies or arms are exported for the use of a belligerent power from neutral ports or waters in the ordinary course of commerce. To formal

ize a new clause in a manner acceptable to England and America had not been practicable before the interruption of the correspondence in 1872.

It was not resumed till June, 1873, after the difficulties of agreement had been increased by the exaggerated construction given by the arbitrators to the terms of the rules. "The due diligence," they say, "referred to in the first and third of the said 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 fulfil the obligations of neutrality on their part; " and that "the circumstances out of which the facts constituting the subject matter of the present controversy arose were of a nature to call for the exercise, on the part of her Britannic Majesty's government, of all possible solicitude for the observance of the rights and duties involved in the proclamation of neutrality issued by her Majesty on the 31st May, 1861."

A dispatch of Earl Granville, alluding to the proposition of Mr. Fish to submit the three rules to the maritime powers, refers to the embarrassments which resulted from the presentation to the commission of the indirect claims, and to the difficult position in which the representatives of England and of the United States would be placed if they submitted to other States a series of rulings as to the meaning of which they entirely differed. Earl Granville furthermore insisted that, while the English government is not at all disposed, as it appears especially from the debates in parliament, to accept all the decisions of the tribunal at Geneva, the presentation of the three rules to "the great powers" would probably be considered as an acceptance of its interpretation of them, and inevitably induce

the rejection of the three rules by all these powers.

The President, in pursuance of their resolution of June 3, 1878, submitted to the Senate, January 13, 1879, the correspondence between the governments of the United States and Great Britain in regard to inviting other maritime powers to accede to the three rules. The last note, which was from Mr. Fish to Sir Edward Thornton, bears date September 18, 1876. The correspondence clearly establishes that there was no disposition on the part of the two powers, least so on the part of Great Britain, to make the submission; and from the subsequent silence we are to infer that the three rules are to be deemed limited in their operation to the single matter of the Alabama Claims, and as withdrawn from any proposed reform of the law of nations. It may be added that there was a conviction on the part of both governments that they could not receive the assent of a single State. Austria and Germany had early given instructions to that effect. Parliamentary Papers, 1874; Congressional Documents (Senate), Ex. Doc. No. 26; 45th Cong. 3d Session, 1879.

These rules, however, after having been greatly modified by Bluntschli and other continental jurists, received, in 1875, the assent of a majority of the members of the institute of international law, present at the Hague. Montague Bernard, Sir Travers Twiss, and Professor Lorimer, opposed their adoption, the last named declaring that the three rules of Washington, as well as the American and foreign enlistment acts passed under the influence of the same ideas, are bad in theory and inapplicable in practice.

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to differ from their countrymen who are members of the institute. The latter remarks: "The better opinion seems that impressive and impracticable obligations would be imposed on neutral nations, if the principles set forth as the basis of the award and the interpretation placed on the three rules were acceded to in future cases."

The condition of belligerency would be infinitely preferable to that of neutrality as defined by the conference of Geneva; and the due diligence prescribed would compel the United States, whenever they were neutrals, to maintain a naval police competent to cope with any belligerent forces, throughout the whole extent of our coasts, both on the Atlantic and Pacific coasts.

By the repudiation of the three rules by their authors, we are remitted to the laws of neutrality as understood before the attempt to define neutral obligations by municipal or by conventional law. Though it is conceded that munitions of war may be sold in a neutral country to be used against a nation at peace with it, and though a ship fitted out for war may be sent across the ocean to seek a purchaser, it is contended that she cannot be sold at home to a belligerent. There can be no other ground on which to rest the distinction than that which was assumed by President Washington's administration, and which connects itself with the well recognized rule forbidding, in all cases, a neutral to permit his territory to be used as the basis of hostile operations whether by sea or by land. It was against the use of the port, not against the sale of ships, that the proclamation of 1798 was directed. from confounding the right to build and sell a ship of war in a neutral port, with the equipment and dispatch from it of a hostile expedition, that all the difficulty has arisen.

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943, 956

159

Abram, State v. 10 Ala. 928

581

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Ah King v. People, 5 Hun, 297
Ah Loi, State v. 5 Nev. 99
Ah Ping, People v. 27 Cal. 489
Ah Sam, People v. 41 Cal. 645
Ah Woo, People v. 28 Cal. 205
Ah Yek, People v. 29 Cal. 575
Aickles, R. v. 1 Leach, 294; 2 East
P. C. 675
657, 660, 879, 966
Aikens, State v. 32 Iowa, 403
Ailstock, Com. v. 3 Grat. 650
Ainsworth, State v. 11 Vt. 91
Airey, R. v. 2 East, 30 1141, 1210, 1227
Ake v. State, 30 Tex. 466; 31 Tex.

416

Alabama case

1276 536, 537

1508

1685

857

211

720

728, 729

572

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Com. v. 7 Met. 50

733

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380

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1901

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641

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644 766, 770

State v. R. M. Charlton, 518 State v. 72 N. C. 114 State v.1 McCord, 525 v. Hillman, 12 Pick. 101 v. Martin, 10 Wend. 300 v. People, 82 Ill. 610 v. State, 40 Ala. 334 v. State, 52 Ala. 391 v. State, 28 Ga. 395 v. State, 10 Oh. St. 287 v. State, 5 Yerg. 483 v. State, 14 Tex. 633 v. State, 42 Tex. 12

951

U. S. v. Cooke, 143 v. Com. 5 Rand. (Va.) 627 1361, 1720, 1741 v. State, 48 Ala. 665

268

816

1068

1643, 1650

1595

439

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628 182, 605, 619 793, 830

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470

930, 994, 1006

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Allison, R. v. 8 C. & P. 410 v. State, 42 Ind. 354

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Allmond, State v. 2 Houst. 612

Almeida, U. S. v. Whar. Prec. 1061

1530

U. S. v. 2 Story, 203

28

1880

v. People, 60 Ill. 354 89, 783,

Almon, R. v. 5 Burr. 2686

247, 1627

983

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Ambs, State v. 20 Mo. 214

1431

Amedy, U. S. v. 11 Wheat. 392 Am. Life Ins. Co. v. Rosenagle,

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413 84,86

77

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