§ II. But while the neutral State may, by proclamation or otherwise, prohibit belligerent vessels with prizes or prisoners of war from entering its ports, the absence of any such prohibition implies the right to enter for the purposes indicated, and any vessel so entering neutral waters, retains her right of ex-territoriality, both with respect to her prisoners of war and her prizes. This question was raised in the port of San Francisco, California, in the case of the Russian vessel, the 'Sitka,' a prize of the British navy, during the Crimean war.1

§ 12. The armed cruisers of belligerents, while within the jurisdiction of a neutral State, are bound to abstain from any acts of hostility toward the subjects, vessels, or other property of their enemies; they cannot increase their guns or military stores, or augment their crews, not even by the enrolment of their own countrymen; they can employ neither force nor stratagem to recover prizes, or to rescue prisoners in the possession of the enemy; nor can they use a neutral port, or waters within neutral jurisdiction, either for the purpose of hindering the approach of vessels of any nation whatever, or for the purpose of attacking those which depart from the ports or shores of neutral powers. No proximate acts of war, such as a ship stationing herself within the neutral line, and sending out her boats on hostile enterprises, can, in any manner, be allowed to originate in neutral territory; nor can any measure be taken that will lead to immediate violence.2

§ 13. Publicists make a marked distinction between the duties of neutrals, with respect to the asylum which may be afforded to belligerent ships, and that which may be afforded

so, the ports of the United States are to be deemed open to such ships. (7 Op. Att. Gen., 122.)

In May, 1865, the United States declared that, if after a reasonable time should have elapsed for the proclamation to become known in the ports of nations claiming to be neutral, the insurgent cruisers should continue to receive hospitality in such ports, the Government would deem itself justified in refusing hospitality to the public vessels of such nations in ports of the United States, and in adopting such other measures as might be deemed advisable for vindicating the national sovereignty.

1 Cushing, Opinion U. S. Att'ys Genl., vol. vii. p. 123; Loccenius, de Jure Maritimo, lib. ii. ch. iv. § 7.

2 Martens, Précis du Droit des Gens, § 312; Chitty's Com. Law, vol. i. pp, 441-444; the 'Twee Gebroeders,' 3 Rob. R., p. 163.

to belligerent forces on land. This difference, says Heffter, results from the immunity of the flag, and the principle that ships are considered as a portion of the territory of the nation to which they belong. Hence the allowable custom of asylum in neutral waters, and the want of power in the neutral to interfere with internal organisation of such vessels, when not armed or equipped within its jurisdiction. On the other hand, troops are not a part of the territory of the nation to which they belong, nor has their flag any immunity on neutral soil. While, therefore, individuals, as such, are entitled, by the laws of humanity, to the right of asylum in neutral territory, such asylum cannot be demanded by, nor can it be granted, without a violation of neutral duty, to an army as a body. It is, consequently, the duty of the neutral to order the immediate disarming of all belligerent troops which enter neutral territory as an asylum, to cause them to release all their prisoners, and to restore all booty which they may bring with them. If he neglect to do this, he makes his own territory the theatre of war, and justifies the other belligerent in attacking such refugees within such territory, which is no longer to be regarded as neutral.1

§ 14. At the commencement of the European war, in 1793, the Government of the United States took strong grounds against the arming and equipping of vessels within the ports of the United States, by the respective belligerent powers, to cruise against each other, declaring such acts to be a violation of neutral rights, and positively unlawful; and that any vessel, so armed or equipped in our ports, for military service, was not entitled to the rights of asylum.2 The authority of

1 Heffter, Droit International, § 149; Kluber, Droit des Gens, § 208, note b; Ortolan, Diplomatie de la Mer, liv. iii. ch. viii. ; Pistoye et Duverdy, Des Prises Maritimes, tit. i. ch. i. sec. 3; Hautefeuille, Des Nations Neutres, tit. vi. ch. ii.; Wheaton, Elem. Int. Law, pt. iv. ch. iii. §§ 6, 7; Pando, Derecho Internacional, p. 465; Bello, Derecho Internacional, pt. ii. ch. vii. § 5; Riquelme, Derecho Pub. Int., lib. i. tit. ii. cap. xvii.; De Steck, Versuch, über Handel, etc., p. 173; Putman, de Jure recipiendi hostes, etc., and see ante, paragraph 4.

2 It was decided by the Circuit Court of the Southern District of New York in 1818, that it is no breach of neutrality on the part of a belligerent to equip vessels of war in a neutral port, unless the act be interdicted.— Stoughton v. Taylor, 2 Paine, 655.

It was decided under the 29 Geo. 2, c. 16, s. 2, which prohibited the exportation of arms, &c. from Great Britain during time of war, except by licence, when such arms were destined for Africa, that the act of a neutral ship meeting by agreement a British vessel, in Africa, for the

Wolfius, Vattel, and other writers on the law and usage of nations, was appealed to, in support of these declarations

purpose of receiving gunpowder and arms, was illegal, though the latter had a licence to export them for the purpose of trade.-Gibson v. Mair, 1 Marsh. 39; S.P. Gibson v. Leune, i Stark. 119; S.C., 5 Taunt. 433.

The well-known case of the 'Alabama,' and of other vessels of the Confederate Government, which preyed on the commerce of the Federal States during the late civil war in the United States, occasioned the latter Government to claim satisfaction from Great Britain on the ground of various breaches of neutrality of that country in building, equipping, and otherwise assisting the progress of those vessels. To meet these claims, after various negotiations, on the conclusion of the civil war, the Treaty of Washington (having a retrospective effect) was signed at Washington, May 8, 1871, between Great Britain and the United States, referring the various questions to five arbitrators, one being chosen by each of the following Governments, viz. Great Britain, the United States, Italy, Switzerland, and Brazil. These arbitrators met at Geneva in Switzerland on December 15, 1871.

It would far exceed the limits of this work to enlarge on the many important questions discussed at the Tribunal of Arbitration, or, as it is commonly called, the Conference of Geneva; but the reader may gather a short history of the whole matter and some of the more important subjects discussed, by a perusal of the following extracts.

It was stipulated by Art. 6 of the above Treaty as follows:

'In deciding the matters submitted to the arbitrators, they shall be governed by the following three rules, which are agreed upon by the high contracting parties as rules to be taken as applicable to the case, and by such principles of international law not inconsistent therewith, as the arbitrators shall determine to have been applicable to the

case:

'A neutral Government is bound

'First. To use due diligence to prevent the fitting out, arming, or equipping within its jurisdiction of any vessel which it has reasonable ground to believe is intended to cruise or carry on war against a Power with which it is at peace, and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use.

Secondly. 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.

'Thirdly. To exercise due diligence in its waters, and as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties.'

'Her Britannic Majesty has commanded her High Commissioners and Plenipotentiaries to declare that Her Majesty's Government cannot assent to the foregoing rules as a statement of principles of international law, which were in force at the time when the claims mentioned in Art. i. arose; but that Her Majesty's Government, in order to evince its desire of strengthening the friendly relations between the two countries, and of making satisfactory 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

and rules of neutrality. The ground then assumed by the United States is now generally admitted to be correct. The

between themselves in future, and to bring them to the knowledge of other maritime Powers, and to invite them to accede to them.'

The following award was made on September 14, 1872, by the Tribunal of Arbitration held at Geneva, viz. :—

'The Tribunal having since fully taken into their consideration the Treaty, and also the cases, counter-cases, documents, evidence, and arguments, and likewise all other communications made to them by the two parties during the progress of their sittings, and having impartially and carefully examined the same, has arrived at the decision embodied in the present award.

Whereas, having regard to the 6th and 7th Articles of the said Treaty, the arbitrators are bound under the terms of the said 6th Article, "in deciding the matters submitted to them, to be governed by the three rules therein specified, and by such principles of International Law, not inconsistent therewith, as the arbitrators shall determine to have been applicable to the case;

And whereas the "due diligence" 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 whereas 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 13th day of May, 1861;

'And whereas 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 afterwards 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 can the consummation of his fraud become the means of establishing his innocence;

'And whereas the privilege of exterritoriality accorded to vessels of war has been admitted into the law of nations, not as an absolute right, but solely as a proceeding founded on the principle of courtesy and mutual deference between different nations, and therefore can never be appealed to for the protection of acts done in violation of neutrality;

And whereas the absence of a previous notice cannot be regarded as a failure in any consideration required by the law of nations, in those cases in which a vessel carries with it its own condemnation;

'And whereas, 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, or of place, which may combine to give them such character;

'And whereas, with respect to the vessel called the Alabama, it clearly results from all the facts relative to the construction of the ship at first designated by the Number 290 in the port of Liverpool, and its equip ment and armament in the vicinity of Terceira through the agency of the vessels called the "Agrippina" and the " Bahama," despatched from Great Britain to that end, that the British Government failed to use due

same objection was made by the United States, in the war of 1793, against the enlisting of men by the respective belligerent

diligence in the performance of its neutral obligations; and especially that it omitted, notwithstanding the warnings and official representations made by the diplomatic agents of the United States during the construction of the said Number 290, to take in due time any effective measures of prevention, and that those orders which it did give at last, for the detention of the vessel, were issued so late that their execution was not practicable;

'And whereas, after the escape of that vessel, the measures taken for its pursuit and arrest were so imperfect as to lead to no result, and therefore cannot be considered sufficient to release Great Britain from the responsibility already incurred;

And whereas, in despite of the violations of the neutrality of Great Britain committed by the "290," this same vessel, later known as the Confederate cruiser “Alabama,” was on several occasions freely admitted into the ports of Colonies of Great Britain, instead of being proceeded against as it ought to have been in any and every port within British jurisdiction in which it might have been found ;

'And whereas the Government of Her Britannic Majesty cannot justify itself for a failure in due diligence on the plea of the insufficiency of the legal means of action which it possessed: Four of the arbitrators for the reasons above assigned, and the fifth for reasons separately assigned by him, are of opinion-That Great Britain has in this case failed, by omission, to fulfil the duties prescribed in the first and third of the rules established by the 6th Article of the Treaty of Washington;

'And whereas, with respect to the vessel called the " Florida," it results from all the facts relative to the construction of the "Oreto" in the port of Liverpool, and to its issue therefrom, which facts failed to induce the authorities in Great Britain to resort to measures adequate to prevent the violation of the neutrality of that nation, notwithstanding the warnings and repeated representations of the agents of the United States, that Her Majesty's Government has failed to use due diligence to fulfil the duties of neutrality;

'And whereas it likewise results from all the facts relative to the stay of the "Oreto" at Nassau, to her issue from that port, to her enlistment of men, to her supplies, and to her armament, with the co-operation of the British vessel "Prince Alfred," at Greeneay, that there was negligence on the part of the British Colonial authorities;

'And whereas, notwithstanding the violation of the neutrality of Great Britain committed by the "Oreto," this same vessel, later known as the Confederate cruiser "Florida," was, nevertheless, on several occasions, freely admitted into the ports of British Colonies;

And whereas the judicial acquittal of the “Oreto" at Nassau cannot relieve Great Britain from the responsibility incurred by her under the principles of International Law; nor can the fact of the entry of the "Florida" into the Confederate port of Mobile, and of its stay there during four months, extinguish the responsibility previously to that time incurred by Great Britain: For these reasons:-The Tribunal, by a majority of four voices to one, is of opinion-That Great Britain has in this case failed, by omission, to fulfil the duties prescribed in the first, in the second, and in the third of the rules established by Article 6 of the Treaty of Washington.

And whereas, with respect to the vessel called the Shenandoah, it results from all the facts relative to the departure from London of the merchant vessel the "Sea King," and to the transformation of that ship