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States of old: such is their doctrine now, neither more nor less by reason of our negotiation with Great Britain.
SALE OF ARMS NOT AFFECTED BY THE TREATY OR THE
Some persons have supposed that the Treaty affects the question of the sale of arms or munitions of war to a Belligerent. That is an error. Wherever, as between the parties to the Treaty, the sale of arms was lawful before, it is lawful now; wherever it is unlawful now, it was unlawful before. That is a question to which the action of the German Embassador in Great Britain during the late war between France and Germany has drawn the attention of all Europe, and which is certain to acquire importance in any future great war; but it is not touched, in fact, by the Treaty of Washington, and did not come before the Tribunal of Geneva.
QUESTION OF SUPPLIES OF COAL. One specific objection to the Rules of the Treaty, and only one, of any apparent force, has passed under my observation, that of the Austrian statesman, Count von Beust: the suggestion, namely, as to the second Rule, relative to coaling and refitting in neutral ports, which, it is alleged, “ gives to England, through her possession of neutral stations in all parts of the world, a palpable advantage over other States, which have not the same facilities at command."
This objection is one of apprehension, rather than of fact. When the United States and Great Britain shall, in conformity with the Treaty, bring the new Rules to the knowledge of other maritime Powers, such Powers will of course present for consideration all
proper objections or qualifications to those Rules.
Count von Beust goes on to speak of the declaration made by Austria, Prussia, and Italy in 1866, which indicates that he was considering the subject in the relation of contraband rather than of simple refitting in neutral ports.
But the precise question of the supply of coal in neutral ports is not prejudged by the Treaty of Washington, nor by the opinions of the Tribunal of Arbitration. The United States are quite as much interested in having access to supplies of coal “at neutral stations in all parts of the world” as Austria, or Prussia, or Italy; and we may presume that Count Sclopis did not fail to reflect on the interests of Italy in this behalf.
One of the “Considérants” of the Award had for its special object to prevent misconstruction of the second Rule. We quote it as follows:
“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 persons, of place, which may combine to give them such character."
Count Sclopis explains the force of the Decision as follows:
“Quant à la question de l'approvisionnement et du chargement de charbon, je ne saurais la traiter que sous le point de
vue d'un cas connexe avec l'usage d'une base d'opérations navales dirigées contre l'un des Belligérants, ou d'un cas flagrant de contrabande de guerre. Je ne dirai pas que le simple fait d'avoir alloué une quantité de charbon plus forte que celle nécessaire aux vaisseaux pour regagner le port de leur pays le plus voisin, constitue à lui seul un grief suffisant pour donner lieu à une indemnité. Ainsi que le disait le Chancelier d'Angleterre, le 12 Juin, 1871, à la Chambre des Lords, l'Angleterre et les Etats Unis se tiennent également attachés au principe pratique qu'il n'y a pas violation du droit des gens en fournissant des armes aux Belligérants. Mais si cet excédant de proportion dans l'approvisionnement de charbon vient se joindre à d'autres circonstances qui marquent qu'on s'en est servi comme d'une veritable res hostilis, alors il y a infraction à la deuxième Règle de l’Article VI. du Traité. C'est dans ce sens aussi que le même Lord Chancelier expliquait dans le discours précité la portée de la dernière parte de la dite Règle.”
The same point is treated by Mr. Adams as follows:
“The supply of coals to a Belligerent involves no responsibility to the Neutral, when it is made in response to a demand presented in good faith, with a single object of satisfying a legitimate purpose, openly assigned.
“On the other hand, the same supply does involve a responsibility if it shall in any way be made to appear that the concession was made, either tacitly or by agreement, with a view to promote or complete the execution of a hostile act.
“Hence I perceive no other way to determine the degree of the responsibility of a Neutral in these cases, than by an examination 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 willful negligence, and that will impose a burden of proof to excuse it before responsibility can be relieved.”
Mr. Adams, it will be noted, dwells on the question of intent in this matter, as he does, indeed, in
each one of his opinions, to the contrary of the line of reasoning followed by the British Arbitrator.
Finally, in assenting to the Decision, the Viscount of Itajubá remarked that, “ with regard to the supply of coal, he is of opinion that every Government is free to furnish to the Belligerents more or less of that article."
Thus, the tenor of the Decision of the Tribunal, and the commentaries of the Arbitrators thereon, combine to show that the second Rule can not have the effect ascribed to it by Count von Beust.
Besides which, the latter greatly errs in supposing that the numerous naval stations possessed by Great Britain in different parts of the globe give to her so much advantage to the prejudice of other maritime Powers. She pays dearly for such benefits as she herself derives from those establishments, in the cost of maintaining them, whether in peace or in war; and if, while in a state of neutrality herself, she refuses hospitality to others (and she must do it to all, if she does to one], she forces other Powers to acquire similar establishments to be conducted with equal exclusiveness, or she is constrained to incur the risk of the charge of partiality as between several Belligerents. Hence, it is not for the interest of other Powers to overstretch the responsibilities of Great Britain in this respect; and it is for her interest to deal justly and impartially with such other Powers.
Great Britain was not condemned by the Tribunal because of the supply of coals to Confederate cruisers in her Colonial ports, nor merely because those cruisers were permitted to pervert the privilege of hospi. tality into making a base of operations of Nassau or of Melbourne. The recognized fault in the matter of the Shenandoah was mainly the augmentation of her crew at Melbourne, and the addition of equipments, without which she could not have operated as a cruiser in the North Pacific. In the case of the Alabama, and especially that of the Florida, the fault was in allowing them to come and go unmolested, and even favored, in the Colonial ports, when the British Government could no longer pretend to be ignorant of their originally illegal character, nay, when it was now fully aware of what Mr. Adams calls the “continuous, persistent, willful, flagrant falsehood and perjury," and the “malignant fraud,” which attended the equipment of the Confederate cruisers in Great Britain. It was this class of facts, and not any such secondary consideration as the supply of coal, which turned the scale against Great Britain in the opinions of the Arbitrators.
No: neither the Treaty of Washington, with its Rules, nor the Decision of the Tribunal of Geneva, has inaugurated any new policy of neutrality in the United States, nor created for them any rights or any duties not previously possessed by and incumbent on the Government.
WHAT THE UNITED STATES HAVE GAINED BY THE AWARD.
What, then, it may be asked, have the United States gained by the Treaty of Washington, and by the Arbitration ?