In fact, the more closely this assumption is examined, the less tenable will it appear to be. There are ample opportunities in this international digest for studying it, and there are also, as we have shown, opinions of Mr. Marcy and others which can hardly be regarded as consistent with it. But that any uncertainty should exist in regard to a point of such considerable international importance is by no means satisfactory, and that such uncertainty does exist seems to be clear.

The questions of international law raised by the treaty of Washington naturally occupy some space in these volumes. It may, we think, without awarding undue praise to the editor, be said that his treatment of the question gives the clearest idea of this branch of the treaty yet published, whether it be regarded from the point of view of an episode in the history of international law, or in regard to the political relations of Great Britain and the United States. The sixth article of the treaty which contains the famous three rules is set out, as well as the award of the arbitrators; and extracts follow from their individual opinions, and from the writings of eminent publicists and statesmen, as well as the views of Dr. Wharton himself. We are thus enabled to obtain a complete bird's eye view of this question, and to consider the subject not only in regard to its relations to the law acted on in this country and in the United States, but also in connexion with the general position of international law. It must be confessed that from a national point of view this portion of the treaty is by no means creditable to English statesmanship. For, in brief, those who had to safeguard English interests agreed to certain propositions which, though they contained some germs of existing international law, did not, as drafted, accurately express the existing rules on the subject. That this was so was admitted in the treaty itself, wherein it is stated 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 Article 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 on the principles set forth in those rules.' (Digest, vol. iii. p. 631.)

This admission it is not easy to reconcile with Mr. Glad

*

stone's statement in the House of Commons on May 26, 1873. Were they,' he asked, as regards us an ex post facto 'law? I say they were not. We deemed that they formed 'part of the international law at the time the claims arose.' The written admission of those who made the treaty, and had closely considered the subject, and who somewhat unnecessarily insert in a solemn treaty a qualification so important as the above, must be held to override the oratorical statements of Mr. Gladstone. Not only, however, did Great Britain consent to be judged by rules which its negotiators expressly declared not to be the existing rules of international law, and to be bound by them in future, but it agreed that the Governments of the United States and of Great Britain would endeavour to convert other nations of the world to the views expressed in the treaty of Washington. 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.' † The result is now common knowledge. The arbitrators interpreted those loosely drawn rules in a sense wholly against the case of Great Britain, and she was condemned to pay an immense sum of money for the infringement of rules made after the supposed offence was committed, and which on her own showing were not the proper test of her conduct in the matter. But another result also followed; for, so far from urging their acceptance by other powers, both parties to the agreement have refused in the future to be bound by them. The editor publishes in these volumes an extract from his own commentaries on American law which is so much to the point that it should be reproduced here.

'It will be at once seen that these rules, though leading immediately to an award superficially favourable to the United States in the large damages it gave, placed limitations on the rights of neutrals greater even than those England had endeavoured to impose during the Napoleonic wars, and far greater than those which the United States had ever previously been willing to concede. If such limitations are to be strictly applied, the position of a neutral, so it may be well argued, will be much more perilous and more onerous in case of war between maritime powers than that of a belligerent. Our Government, to fulfil the obligations cast on it by these rules, would be obliged not only to have a strong police at all its ports to prevent contraband articles from going out to a belligerent, but to have a powerful navy to scour the seas to

* Digest, vol. iii. p. 643.

† Ibid. p. 631.

intercept vessels which might elude the home authorities, and creep out carrying such contraband aid. It must be recollected that not only our Atlantic and Pacific coasts, but our boundary to the north and to the south, contains innumerable points at which belligerents can replenish their contraband stores, and nothing but a standing army or navy greater than those of any European power could prevent such operations. Nor would this be the only difficulty. No foreign war could exist without imposing upon the governments of neutral states functions in the repression of sympathy with either belligerent which no free government can exercise without straining its prerogatives to the utmost. It is not strange, therefore, that in view of the hardness of these rules they should be regarded by European as well as by American publicists as likely to be of only temporary obligation. "When we come to the subject of neutrality," says Professor Lorimer, of Edinburgh, a leading member of the Institute of International Law (Institutes of the Law of Nations,' by James Lorimer, LL.D.: Blackwood & Sons, 1883, p. 52), "we shall see but too much reason to "believe that even the treaty of Washington of 1871, though pro"fessing to determine the relation between belligerents and neutrals "permanently, was in reality a compromise by which neutral rights 66 were sacrificed to the extent which on that occasion was requisite to "avoid a fratricidal war. Before the award of the arbiters who met "at Geneva could be applied as a precedent, a new treaty embodying "the famous three rules' would require to be negotiated; and it is extremely unlikely that either England or any other neutral power "would again agree beforehand to pay damages for the fulfilment of "the impossible engagements which these rules impose." This view is strengthened by the fact that the British members of the commission, by whom the treaty of Washington was negotiated, inserted in the treaty the memorandum [which we have already quoted].

'It was proposed in the treaty of 1871 that the "three rules" should be submitted to the great powers of Europe. It soon became evident that neither Great Britain nor the United States desired to make such a submission. It may be also added that there was a conviction on the part of both Governments that they would not receive the assent of a single state. Austria and Germany had early stated that their assent would not be given. The "three rules,' therefore, were agreed to by the United States only provisionally, and are not only in conflict with the principles for which the United States contended down to the late civil war, but give advantages to belligerents which even Great Britain regards as excessive. These rules, repudiated as they have been by the contracting powers, and rejected by all other powers, are to be regarded not only as not forming part of the law of nations, but as not binding either Great Britain or the United States. That the "three rules were temporary and exceptional, and were to be only effective in case of ratification by the great powers, which ratification was never given, is maintained by Mr. Fish in his letters to Sir E. Thornton, of May 8 and September 18, 1876, communicated by Mr. Hayes in his message to the Senate of January 13, 1879. The same position was taken in the House of Commons in

1873 by Mr. Gladstone, Sir W. Harcourt, Mr. Disraeli, and the Attorney-General.' (Digest, vol. iii. p. 650.)

These are Dr. Wharton's reasons against the continuance of the three rules, and his historical sketch of their abandonment. Such has been the ignominious end of propositions which were to govern the future relations of all neutral and belligerent states. They will remain for a long time to come as an example of American shrewdness and British good nature. To agree to pay for a wrong done when it is clearly apparent is a reasonable course; to agree to abide in the future by certain new and specified rules is equally reasonable, if the rules are themselves desirable; but to agree to pay damages which are to be estimated by rules not in force when the act complained of occurred, and which the party for whose benefit they were formulated repudiates as soon as they have served their purpose, is one of the sorriest exhibitions of statesmanship which this generation has witnessed.

We have said already that the rules contained some portions of existing international law, though in the form in which they are found in the treaty they are not, taken as a whole, accurate statements of the law. It is well, therefore, to examine them a little more closely. They will be found set out in the third volume of Dr. Wharton's Digest.'

'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 own ports and waters, and as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations or duties.' (Vol. iii. p. 630.)

The second of these rules, so far as the first and last parts of it are concerned, express with reasonable accuracy the international law on this point as generally received at the time of the civil war in America. But the term 'military supplies' is too vague to be regarded as strictly accurate.

Provisions for a crew of a ship of war are military supplies in some senses; but unless they are so continually taken on board at a particular port as to make it a base of naval operations, then it has not been usual to regard this purchase by a belligerent ship in a neutral port as illegal. But under this term, provisions, it is obvious, might not be supplied, and so the crew of a belligerent's war ship might be starved in a neutral port. The first and third rules must be read together, though, to some extent, the third has an application also to the second. No international provisions have given rise to greater discussion among jurists in recent years than have these now famous three rules, and more especially the term 'due diligence' has been very keenly criticised, as well as the interpretation put upon it by the arbitrators. That gloss was that due diligence 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.' But however faulty and vague this definition of the proper amount of diligence required from a neutral power may be, it arises from the very vagueness of the term itself. The words 'due diligence' contain no precise definition. They can only be construed according to individual opinion. They resemble, in fact, certain terms well known to lawyers, such as reasonable time, reasonable care, the conduct of a prudent mariner, and so on, any one of which has a different meaning in the minds of different persons. To introduce such a term into a rule of international law is to reduce the conclusion of international disputes to the level of a trial at Nisi Prius. The difference of view which may fairly be taken of such a term as this needs no further illustration than the wide divergence of the American and English contentions on the point. Whilst that already given substantially expresses the American view, that of this country was that it should be of the same nature as the governments of civilised states are accustomed to employ in matters concerning 'their own security or that of their own citizens.' Such a conflict of opinion was sufficient in itself to discredit these rules as permanent international principles in the shape in which they were expressed in the treaty of Washington, and to prevent their acceptance by any European power. Their influence has thus been altogether of an indirect kind, and a valuable opportunity for codifying, on our part at any rate, for all time the floating and uncertain propositions of international law was irretrievably lost. When the great diffi