Fitting out, fense. It will also be observed that fitting out, or arm- arming, or equip ing, or equipping, each constitutes in itself a com- ping, each an of plete offense. Therefore a vessel which is fitted out within the neutral's jurisdiction, with intent to cruise against one of the belligerents, although not equipped or armed therein, (and vice versa,) commits the offense against International Law, provided the neutral government had reasonable ground to believe that she was intended to cruise or carry on war against such belligerent, and did not use due diligence to prevent it. clause of the first Rule. The neutral is required by the second clause of The second the first Rule of the Treaty to prevent the departure from its jurisdiction of any vessel intended so to cruise or carry on war, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use. Reasons for change of lan The Tribunal of Arbitration probably will not have failed to observe that a new term is employed guage. here. In the first clause of the first Rule the obligation of the neutral is limited to the prevention of the " fitting out, arming, and equipping" the vessel. In the second clause, the language is much broader: a vessel which has been "specially adapted, in whole or in part, to warlike use," may not be permitted to depart. The reasons for this change may probably be found in the different interpretations which have been put by the Exe change of language. Reasons for cutive and Judicial Departments of the two Governments upon the words "fitting out" and "equipping," and in the desire of the negotiators of the Treaty to avoid the use of any words that could be deemed equivocal. The United States will endeavor to explain to the Tribunal what these differences of interpretation were. The eighth section of the United States law of 1818 empowers the President to take possession of and detain vessels which have been "fitted out and armed" contrary to the provisions of the act. In the year 1869, while there was a state of recognized war between Spain and Peru, (although there had been no active hostilities for several years,) the Spanish Government made contracts for the construction of thirty steam gun-boats in the port of New York. After some of these boats were launched, but while most of them were on the stocks, and before any had received machinery or had been armed, the Peruvian Minister, on behalf of his Government, represented to the Government of the United States that this was being done in violation of the neutrality of the United States. The President, proceeding under the section of the statute above referred to, took possession of the vessels, and they remained in the custody of the naval forces of the United States until they were released, with Reasons for change of lan the consent of the Peruvian Minister at Washing- 1United States vs. Quincy, 6 Peters's Reports, 445. 2 This opinion was on the Act of 1819. The Act of 1870 provides that "equipping shall include the furnishing a ship with any tackle, apparel, furniture, provisions, arms, munitions, or stores, or any other thing which is used in or about a ship for the purpose of fitting or adapting her for the sea or for naval service." change of lan guage. Reasons for and had to consider what words they would use in the Treaty, they found the Executive of the United States and the Judiciary of Great Britain differing as to the meaning of these important words. The Tribunal of Arbitration may therefore reasonably presume that the framers of that Treaty, after the experience of the American insurrection, sought for language which would, beyond any question, indicate the duty of the neutral to prevent the departure from its ports, of any vessel that had been specially adapted for the hostile use of a belligerent, whether that adaptation began when the keel was laid to a vessel intended for such hostile use, or whether it was made in later stages of construction, or in fitting out, or in furnishing, or in equipping, or in arming, or in any other way. The undoubted duty of the neutral to detain such a vessel, although it had not been formulated by Great Britain in any of the acts prior to 1861 which have been passed in review, is understood to have been included in the obligation to prevent her construction. The United States regard this duty as one that existed by the law of nations prior to the Treaty of Washington; but as that "It is perfectly true that Lord Chief Baron Pollock and Baron Bramwell, as well as other great legal authorities, thought that such words as these did not convey the true meaning of our then Foreign Enlistment Act; which, in their opinion, was intended to apply only to those vessels which might be armed within our jurisdiction, either completely or at least so far as to leave our waters in a condition immediately to commence hostilities."-Sir R. Palmer's Speech, August 4, 1871, page 32. Treaty provides that, for the purpose of the present discussion, the rule is to be taken as having the force of public law during the Southern Rebellion, it is needless to discuss that point. The United States invite the particular attention of the Tribunal to the continuing character of the second clause of this rule. The violation of the first clause takes place once for all when the offending vessel is fitted out, armed, or equipped within the jurisdiction of the neutral; but the offense under the second clause may be committed as often as a vessel, which has at any time been specially adapted, in whole or in part, to warlike use, within the jurisdiction of the neutral, enters and departs unmolested from one of its ports. Every time that. the Alabama, or the Georgia, or the Florida, or the Shenandoah came within British jurisdiction, and was suffered to depart, there was a renewed offense against the sovereignty of Great Britain, and a renewed liability to the United States. The British Government, certainly once, if not oftener, during the rebellion, admitted its duty to detain these cruisers. Mr. Cobden stated it forcibly in a speech in the House of Commons.1 "The Government admit, through their legal adviser, that they have the power, if they choose to exercise it, to prevent these vessels from entering our 1 Vol. V, page 590. Continuing force of this rule. Duty to detain offending vessels admitted by Great Britain. |