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 cominit such acts, to use all the means in its power to prevent it.1 Her Majesty's government has been unable to collect from this definition the information which it is doubtless intended to convey. It may readily be conceded that the care exerted by a government to prevent violations of its neutrality should bear some proportion to the probable consequences of such offenses. It may be conceded also that the responsibility incurred by failing to prevent an offense must materially depend on the power which the government possessed of preventing it. So far as this, the British government concurs with the Government of the United States. But Her Majesty's government cannot admit that the measure of diligence due from neutral powers ought to be proportioned in any way to their relative degrees of dignity; it knows of no distinction between more dignified and less dignified powers; it regards. all sovereign states as enjoying equal rights and equally subject to all ordinary international obligations; and it is firmly persuaded that there is no state in Europe or America which would be willing to claim or accept any immunity in this respect on the ground of its inferiority to others in extent, military force, or population. In truth, the arbitrators will have clearly perceived, from this statement already presented to them on the part of Great Britain, that in a country which, with free institutions, possesses a large commercial marine and a very extensive ship-building trade, the difficulty of preventing enterprises of this nature is, instead of being less, far greater than in countries which are not so populous and where these conditions are not united; and just allowance ought to be made for this difficulty. The assertion that due diligence means a diligence which shall prevent the acts in question, and shall deter men from committing them, if taken literally, can only signify that no government can be held to have done its duty which has not been completely successful. Of all the powers in the world, such a test would most severely condemn the Government of the United States. If not taken literally, it can contribute nothing to a serious discussion. It has been shown, by ample evidence, in the case presented on the part of Great Britain, that the measures adopted by the British government did prevent and deter men from enterprises which would have violated or imperiled her neutrality; all that the United States have to complain of is, that these measures proved ineffectual to prevent or deter, in a very small number of cases, in which the agents contrived [22] to escape observation, or the difficulty of obtaining evidence was great. That due diligence requires a government to use all the means in its power, is a proposition true in one sense, false in another: true, if it means that the government is bound to exert honestly and with reasonable care and activity the means at its disposal; false, impracticable, and absurd, if it means that a liability arises whenever it is possible to show that an hour has been lost which might have been gained, or an accidental delay incurred which might, by the utmost foresight, have been prevented; that an expedient which might have succeeded has not been tried; that means of obtaining information which are deemed unworthy or improper have not been resorted to; or that the exertions of an officer or servant of government have not been taxed to the utmost limit of his physical capacity. Nor can we fail to observe that, in proportion as we extend the duty of prevention incumbent on neutral governments, from hostile enterprises which are open and flagrant to acts of a more doubtful character which Case of the United States, p. 158. border on the line betwixt the lawful and the unlawful, it becomes more and more difficult to exact from the neutral, in the performance of that duty, peculiar and extraordinary vigilance and activity. The duty of preventing the open assembling within neutral territory of an armed hostile expedition against a neighboring country is plain and obvious, and requires only a prompt exercise of adequate force. But it is other wise when we come to acts of a different class, the criminality of which depends on a latent intention; such, for example, as the mere procuring for belligerent purposes from the yards of a neutral ship-builder, whose ordinary business it is to build ships of all kinds for customers of all nations, a vessel with some special adaptation for war. There is nothing in the relation of a neutral to a belligerent to cast on the former the duty of exercising, within his own territory, a constant and minute espionage over ordinary transactions of commerce for the protection of the latter. This relation, always onerous to the neutral, is, at the same time, it must be remembered, purely involuntary on his part. It is forced on him by the quarrels of his neighbors, in which he has no concern, or by their internal discords, when those discords break out into civil war. Her Majesty's government has not attempted a task which has baf fled, as it believes, the ingenuity of jurists of all times and countriesthat of defining with any approach to precision, apart from the circumstances of any particular case, what shall be deemed due diligence or reasonable care. In its Case, already presented to the Tribunal, it has stated some general propositions, which it believes to be consonant with justice, and supported by such analogies as may be fairly drawn from the private law of Europe and America. It leaves it, however, to the arbitrators, who know what are the ordinary powers of governments, what the difficulties they labor under, and what may reasonably and wisely be expected from them, to determine, upon a careful consideration of the facts, and on the same principles by which the States to which they themselves belong would be willing to be judged, whether on the part of Great Britain there has or has not been that want of due care or diligence which makes reparation a duty." On the question, in what cases and within what limits compensation in money may reasonably be deemed due from a neutral nation for injuries occasioned by such a want of care, Her Majesty's government will here only say, that the position of Great Britain appears to be mis apprehended by the United States, and that the two decisions of an American court cited in the case have no bearing upon it.3 Such a question, it is evident, is not within the cognizance of any municipal tribunal, however respectable; and no municipal tribunal has attempted to pronounce judgment on it. The Supreme Court of the United States, in the cases cited, decided only that of two armed vessels one had been unlawfully fitted out, while the other had received an unlawful aug mentation of force, within the jurisdiction of the United States, and that prizes taken by each and brought within the jurisdiction of the United States ought to be restored. The arbitrators will now be in a situation to judge what value to attribute to the assertion, "that the principles for which the United States 1 Case of Great Britain, p. 24, propositions 9, 10, 11; and pp. 166, 167. 3" Du reste," says a distinguished French jurist, treating of this subject in conneetion with private law, "du reste, soit qu'il s'agisse d'une obligation de donner ou de faire, la protestation des fautes est, dans la pratique, à peine une question de droit. Le point de fait y est toujours dominant, quand il n'y est pas tout."-Larombière, Théorie et pratique des obligations, vol. i, p. 417. 3 The Santissima Trinidad and the Gran Para. Case of the United States, p. 206. contend have been recognized by the statesmen, the jurists, the publi cists, 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." The truth is, that the alleged princi[23] ples from which Her Majesty's government has declared its dissent were never before seriously asserted, and never admitted or recognized by any power in Europe or America; that they have the support of no publicist of authority; that they are unknown in Great Britain; and were, up to the time when these claims were brought forward, equally unknown in the United States.2 Case of the United States, p. 202. The following extract from Reddie's "Researches in Maritime and International Law," (vol. ii, p. 210,) is apposite to the general question how far neutral governments are bound to interfere actively for the purpose of restraining their subjects from acts falling within the prohibitions of international law. It is an abstract of the views expressed in the "Considérations sur les Droits Réciproques des Puissances Belligérantes et des Puissances Neutres sur Mer," of Tetens, a work which Mr. Reddie describes as "the most free from national bias, and most impartial exposition of the general principles of maritime international law which has appeared in recent times:' "It is a wise foresight for neutral governments to obviate, during war, as far as possible, all illegal conduct on the part of their subjects, for the double advantage of preserving them from risks, and of preventing the suspicions of belligerents against the traders who sail under neutral flags. The conduct exhibited by several individuals in a neutral nation produces naturally a presumption for or against their fellow-countrymen, which seldom fails to have consequences favorable or unfavorable to the vessels of that nation which the belligerents encounter. There is also a political reason for neutral governments watching their subjects in this respect. They cannot, indeed, manifest more authentically their perfect neutrality than by clear and precise ordinances for their commerce and navigation during war, and by a rigorous police, severely directed against those who contravene them. The more they exert themselves to restrain fraud, the more they are in a state to protect their loyal subjects, and to interpose with success in the cases of just claims made by the latter against the cruisers of the belligerent powers. "What neutrals, however, may do in this respect does not arise from any right which imposes on them the obligation of maintaining a more special surveillance over their subjects during war than they are in the habit of doing during peace; nor to exercise a more extensive inspection over the legality of their conduct toward belligerents than that which is prescribed by law. In even allowing them to act entirely as they choose, they in no manner infringe the rights of the belligerents, provided they do not pretend otherwise to protect their contraventions. But such indifference may inspire belligerents with unfavorable opinions, which it may be as well to prevent, especially if it be preponderating powers who are at war. "From neutral governments not being under an obligation to obviate the abuses of their subjects, it follows that belligerents, whatever condescension they may have to expect from them for that purpose, cannot reasonably require them to extend their measures beyond what is in practice in these same neutral countries for preventing frauds being committed on their own customs, and for checking the other deceitful contrivances for evading payment of the revenues of the state. The maximum of precaution, in this case, is to maintain and enforce the observance of neutrality in vessels and cargoes with the same diligence and exactness as are exercised in inquiries and other proceedings relative to taxes, or imposts and customs. He who does as much to prevent a wrong meditated against another as he does for his own protection, satisfies every just and reasonable expectation on the part of that other. Perhaps, however, more might be done, if it were wished, completely to attain the object. In time of war special instructions might be ordered; tribunals of inquiry might be established against the frauds of merchants and ship-owners, and more rigor might be shown in the punishment of their delinquencies. But this cannot be demanded on the one side, and, on the other, it might be difficult to grant it, because there might result from it consequences inconsistent with the general spirit of the prohibitory laws of the state. At least, this care must be left to the neutral governments, to whom alone it belongs to judge what it may be proper for them to do with reference to the circumstances of the war." [24] *PART III. PRECEDENTS APPEALED TO BY THE UNITED STATES. In aid of its view of neutral duties and liabilities, the government of the United States has appealed to several precedents repealed to by the Corded in history. These are Precedents ap United States. 1. A correspondence which passed between the govern ments of Spain and Sweden, in 1825, relative to a sale of certain Swedish vessels of war, which the Spanish government suspected of having been bought for the service of Mexico. 2. The correspondence between the British minister and the Government of the United States, in 1793, respecting the depredations prac ticed on British commerce by privateers under the French flag, fitted out in American ports; the measures adopted in consequence by the Government of the United States; and the treaty of 19th November, 1794. 3. The complaints and claims urged by Spain and Portugal against the United States, on account of like depredations on the subjects and shipping of those two powers, by privateers fitted out within the United States; and the subsequent treaty with Spain of 22d February, 1819. It will Some of these transactions have been so insufficiently presented in the Case of the United States that it becomes necessary to recall them, so far as may be necessary to set the facts in their true light. then be seen that, far from lending any support to the claims of the United States, they, on the contrary, militate against those claims. It will be necessary, also, since the Government of the United States has invoked against Great Britain the history of American neutrality, to make some additions to a narrative which would otherwise be very imperfect. 1. CASE OF THE SWEDISH SHIPS.1 This affair calls for scarcely any remark on the part of Great Britain. Case of the Swed. It was a sale, by a neutral government, of a ship of the line ish ships, 1825. and two frigates; and there was reason to suspect that the trading firm who had become the nominal purchasers had bought them for the service of the republic of Mexico, then at war with Spain. The contract of sale contained a clause, enabling either party to rescind it on payment of a stipulated sum. The transaction was uncompleted, and still within the power of the Swedish government. The govern ment of Spain remonstrated warmly, and induced the ministers of other powers resident at the Swedish court to support its representations. 1 The narrative introduced into the Case of the United States is taken from Cussy's Phases et Causes Célebres du Droit Maritime, vol. ii, p. 402. There is a better account, containing the official correspondence, (which is wanting in Cussy,) in Martens's Causes Célèbres du Droit des Gens, vol. v, p. 229, ed. 1861. The government of Sweden insisted on its right to complete the sale. At the end of four months, after much correspondence, the contract was rescinded on the request of the purchasers, who alleged that the vessels had been detained till too late in the year by reason of the recall of certain officers and seamen of the Swedish navy, who had previously obtained leave to enter the merchant service, and were to be employed on board of them. The stipulated payment was excused; and the Swedish governmnent undertook to re-imburse the purchasers for money laid out on the repair and equipment of the ships. That the government of Sweden was right in not completing the sale, after circumstances of suspicion had been brought to its knowledge by Spain, there can be no doubt. It has always been conceded that a sale by a neutral government to a belligerent, directly or indirectly, of arms or munitions of war, or ships of war, stands on ground quite different from the mere forbearance or omission to prohibit such transactions on the part of private individuals who are its subjects. In the latter case no duty is violated. But a government which sells or furnishes arms, gives or lends money, to a belligerent, becomes to that extent a participant in the war.1 [25] * In the case of the Anglo Chinese flotilla, which has been already stated to the arbitrators, it will have been seen that, under somewhat similar circumstances, Her Britannic Majesty's government did not hesitate to do far more than the government of Sweden. The differences are that the vessels of the flotilla had not been the property of the British government, and had only been officered and manued by its permission; that no circumstances of suspicion had been suggested to the government, but merely an apprehended possibility; that Great Britain acted immediately, without any correspondence or delay; and that the sacrifice she undertook to make amounted, not, as in the Swedish case, to about 60,000 francs, but to above 2,500,000.2 Great Britain has certainly nothing to fear from this comparison. The purchase by Her Majesty's government, at the price of £220,000, of the two iron-clads seized in 1863, has been mentioned in the British Case, and it has been stated (as the fact is) that in agreeing to this purchase the government was mainly actuated by anxiety to prevent by any means in its power, however costly, vessels of so formidable a character, constructed in a British port, from passing, directly or indirectly, into the hands of a belligerent.3 The case of the old dispatch-boat Victor, sold out of Her Majesty's navy in 1863, will be hereafter referred to. There were in that case no cir cumstances to excite suspicion, and no representation was made by the minister of the United States to Her Majesty's government. When it was discovered, however, that this vessel had passed into the hands of a belligerent, and that endeavors had been made to fit her out as a cruiser, orders were immediately given that no more ships should be sold out of the navy during the continuance of the war. This decision was followed in the case of two vessels, (the Reynard and Alacrity,) for which an advantageous offer was made to the admiralty in December, 1863, and which it was desirable to dispose of. "It would be better," Earl Russell wrote, "at the present time not to sell any vessels to private firms, as it See Heffter, cited below, p. 145. This distinction is recognized by all writers. There is reason to believe, however, from facts which have become notorious, that it was overlooked by the American Government during the late war between France and Germany. Case of Great Britain, p. 47. Ibid., p. 44. Infra, p. 122. 4 |