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there were also other rules of International Law

Rules in the

Treaty of Wash

then in force, not inconsistent with them, defining, ington. with still greater strictness, the duties of a neutral

in time of war.

Article VI of the Treaty of Washington contains the following rules:

"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 to 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 and duties."

Article VII contains the following provision as to compensation: "In case the Tribunal finds

Rules in the that Great Britain has failed to fulfill any duty

Treaty of Wash

ington.

What is "due diligence."

or duties as aforesaid, it may, if it think proper, proceed to award a sum in gross, to be paid by Great Britain to the United States, for all the claims referred to it;" and Article X provides that, "in case the Tribunal find that Great Britain has failed to fulfill any duty or duties as aforesaid, and does not award a sum in gross, the High Contracting Parties agree that a Board of Assessors shall be appointed to ascertain and determine what claims are valid and what amount or amounts shall be paid by Great Britain to the United States on account of the liability arising from such failure."

The obligation to prevent vessels of war from being fitted out, armed, or equipped, within the jurisdiction of a neutral, when such vessels are intended to cruise or to carry on war against a Power with which the neutral is at peace, is recognized almost in the identical terms in which it was stated in the original United States act of 1794, which Mr. Canning said was passed at the request of the British Government, and in the British act of 1819, passed to aid Great Britain in the performance of its duties as a neutral.

The Rules impose upon the neutral the obligation to use due diligence to prevent such fitting out, arming, or equipping. These words are not regarded by the United States as changing in any

respect the obligations of a neutral regarding the matters referred to in the Rules, as those obligations were imposed by the principles of International Law existing before the conclusion of the Treaty.

The phrases "negligence" and "diligence," though opposite, are correlative expressions: the presence of the one implies the absence of the other. It happens that in the ordinary course of judicial proceedings the term "negligence" is the one most frequently employed, and is therefore the one most often commented on and explained by writers on law. "Negligence," which is only the absence of the diligence which the nature and merits of any particular subject and the exigencies of any particular case demand as "due' from the nature of its inherent circumstances, implies blamable fault, called in the Roman law culpa, with responsibility for consequences. The idea of obligation, either legal or moral, and of responsibility for its non-performance, is found in all the forms and applications of the question, either of diligence or of negligence.

Legal writers in England, in America, and on the Continent of Europe, have treated this matter in reference to numerous subjects of controversy, public and private. It has come under the consideration of courts in questions relating to the

What is "due

diligence."

What is "due custody of property, to the performance of con

diligence."

tracts, to the transportation of persons or property, to the collision of ships and railway-trains, to the discharge of private trusts, to the execution of public duties, and in many other ways.

In most of these cases, with the Roman, Continental, and Scottish jurists, and to a certain extent with English and American courts, the question has generally been put as one of negligence or culpa, rather than as an absence of diligence. But, nevertheless, the phrase "due diligence," exacta diligentia, is of received use in the civil law.1

The extent of the diligence required to escape responsibility is, by all authorities, gauged by the character and magnitude of the matter which it may affect, by the relative condition of the parties, by the ability of the party incurring the liability to exercise the diligence required by the exigencies of the case, and by the extent of the injury which may follow negligence.

One of the earliest and one of the best of the English expositors of the Roman law is Ayliffe, (New Pandects of Roman Civil Law as anciently established in that Empire and practiced in most European Nations, London, 1734.) He says: "A fault is blamable through want of taking proper

1 Vinnius, Comment. ad Inst., lib. 3, tit. 15.

care; and it obliges the person who does the injury, because by an application of due diligence it might have been foreseen and prevented."

1

Ayliffe, in his Pandects, (B. 2, tit. 13, pp. 108, 109, 110,) has given an elaborate view of the different sorts of fault or negligence, and fraud and deceit. The passage is long, but as it contains a very ample view of the opinions of the Civilians it may be useful to place a part of it in a note.

"The word fault, in Latin called culpa, is a general term; and according to the definition of it, it denotes an offense or injury done unto another by imprudence, which might otherwise be avoided by human care. For a fault, says Donatus, has a respect unto him who hurts another not knowingly nor willingly. Here we use the word offense or injury by way of a genus, which comprehends deceit, malice, and all other misdemeanors, as well as a fault; for deceit and malice are plainly intended for the injury of another, but a fault is not so designed. And therefore we have added the word imprudence in this definition, to point out and distinguish a fault from deceit, malice, and an evil purpose of mind, which accompanies all trespasses and misdemeanors. A fault arises from simplicity, a dullness of mind, and a barrenness of thought, which is always attended with imprudence; but deceit, called dolus, has its rise from a malicious purpose of mind, which acts in contempt of ali honesty and prudence, with a full intent of doing mischief, or an injury. And by these last words in the definition, namely, which might otherwise be avoided by human care, we distinguish a fault from a fortuitous case. For a fault is blamable through want of taking proper care; and it throws an obligation upon the person that does the injury, because by an application of due diligence it might have been foreseen and prevented. But fortuitous cases often cannot be foreseen, or (at least) prevented by the providence of man; as death, fires, great floods, shipwrecks, tumults, piracies, &c. Those things are superior to the prudence of any man, and rather happen by fate, therefore are not blamable. But if fraud or some previous fault be the occasion of these nocuments, they are not then deemed to be fortuitous cases. A fault is a deviation from that which is good; and, according to Bartolus, erring from the ordinance and disposition of a law. It is sometimes difficult to judge what is the difference betwixt a fault and a dolus, since these words very often stand for one and the same thing. There is no one in this life lives without a fault; but he that would speak distinctly and properly, must impute a dolus to some wickedness or knavery, and a fault to imprudence. The first consists chiefly in acting, and the other in not acting or doing something

What is "due diligence."

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