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gards sanitary or other port regulations, as protected by the flag under which they sail from all interference on the part of the local authority. Such is the state of things while the world is at peace. But if a war arises between any two countries, a considerable modification, no doubt, of the rights both of sovereigns who remain neutral and of those engaged in the war, immediately arises.

While the neutral sovereign has the undoubted right of imposing any restrictions or conditions he pleases, in respect of any of the foregoing particulars, on the ships of war of either belligerent, yet, if he exercises that right, the equality which is essential to neutrality requires that he shall impose them equally on both, and enforce them equally against both. On the other hand, by the universal accord of nations, the belligerent is bound to respect the inviolability of neutral waters, and therefore cannot attack his enemy within them, or make them the base of hostile operations. He is subject also to restraint in three other important particulars: he cannot recruit his crew from the neutral port; he cannot take advantage of the opportunity afforded him of having repairs done to augment in any respect the warlike force of his vessel; he cannot purchase on the neutral territory arms or munitions of war for the use of it. These restrictions are imposed by the law of nations, independently of any regulations of the local sovereign. Besides this, the belligerent is bound to conform to the regulations made by the latter with reference to the exercise of the liberty accorded to him; but subject to these conditions, a belligerent vessel has the right of asylum, that is, of refuge from storm and hostile pursuit; has liberty of entry and of stay; that of having the repairs done which are necessary to enable it to keep the sea in safety; and that of obtaining whatever is necessary for the purpose of navigation, as well as supplies for the subsistence of the crew.

And, be it remembered—I fear it has not always been borne in mindthe liberty thus afforded is not by the general law subjected to any limitations as regards length of stay, quantity of supply, or condition as to the future proceedings of the vessel.

The case of the United States seeks, indeed, to put further limits on the liberty thus conceded to belligerent ships. It would Law as asserted by prohibit "successive supplies to the same vessel;" would the United States. limit repairs to be done to a belligerent vessel to such as are "absolutely necessary to gain the nearest of its own ports;" would make the permission afforded to a vessel to take what it calls "an excessive supply of coal" a failure in the performance of the duty of the neutral.

Such restrictions, though they may be created by the will of the local sovereign, have, however, no existence by international law. They are unknown to it. No authority is adduced in support of them, nor can any be found. No writer on international law, in speaking of the general liberty of belligerent vessels to have repairs done or to obtain supplies, speaks of any such restriction as existing independently of local regulations. The authorities are conclusive to the contrary.

Two leading authors are express on the point. M. Ortolan writes thus:

Les règles relatives à l'accès et au séjour momentané des bâtiments dans les ports et dans les rades étrangers restent les mêmes en temps de paix qu'en temps de guerre.. M. Hautefeuille says:

L'asile maritime consiste à recevoir dans les rades fermées, même dans les ports, les bâtiments des belligérents, que leur entrée soit volontaire ou nécessité par le tempête,

Diplomatie de la mer, vol. ii, p. 286.

par le manque de vivres ou par toute autre cause, même par la poursuite de l'ennemi. Les vaisseaux admis peuvent acheter les vivres qui leur sont nécessaires, réparer les avaries faites, soit par les accidents de mer, soit par le combat, soigner leurs malades ou leurs blessés, puis sortir librement pour aller livrer de nouveaux combats.1

While restraints may be, and often have been, imposed by neutral sovereigns in respect of the entry of belligerent vessels into their ports and waters, of the length of their stay, and of the supplies to be afforded them, no one has till now ever gone the length of saying that it forms any part of the obligations of the neutral to make such regu lations.

The greater number of the maritime states made none such on the occasion of the civil war, except as regards the reception of privateers, it being the apparent desire of all nations to put down forever this worst and most noxious form of maritime warfare. Some imposed a restraint on ships of war bringing prizes into their ports, though mostly this was confined to privateers. Spain, France, Brazil, and Great Britain adopted the rule contained in Her Majesty's instructions of the 31st January, 1862, of limiting the stay of belligerent vessels to twenty-four hours, except in cases of necessity; Brazil and Great Britain, but these alone, that of limiting the supply of coal to the quantity sufficient to take the ship to the nearest port of her own country.

The government of the Netherlands issued instructions to the Governors of its West India colonies, limiting the stay of belligerent vessels of war to twice twenty-four hours, but afterward did away with such restrictions on the occasion of a complaint made by the United States. By article 4 of the present maritime regulations of the Netherlands it is provided that

The ships of war of the belligerent parties, provided they submit to the international regulations for their admission into neutral ports, may remain for an unlimited time in Dutch harbors and estuaries; they may also provide themselves with an unlimited quantity of coal. The government, however, reserves to itself the right, whenever it is thought necessary for the prevention of neutrality, to limit the duration of such stay to twenty-four hours.

Italy had at the time in question no regulations on the subject. By the present Italian Naval Code, (chap. 7,) while it is provided that "nothing shall be furnished to vessels of war or to belligerent privateers beyond articles of food and commodities, and the actual means of repair necessary to the sustenance of their crews and the safety of their navigation," it is further provided that "vessels of war or belligerent privateers wishing to fill up their stores of coal, cannot be furnished with the same before twenty-four hours after their arrival ;" this regulation being to prevent hostile vessels from leaving together.

Nothing is said as to the "navigation" being to the nearest port, and "stores" of coal are spoken of without limitation. It is evident that this code contemplates no such restriction.

As, then, the general law neither imposes any limit on the stay of a belligerent vessel in a neutral port, nor any restriction as to quantity in respect of the articles of which it sanctions the supply, no question can arise as to the stay of any confederate vessel in a British port, or as to the quantity of coal supplied to it, prior to the Queen's Regulations of January 31, 1862.

After that date, the stay of belligerent vessels in Her Majesty's ports having been limited, save under exceptional circumstances, to twentyfour hours, and the supply of coal to so much as should be necessary to take them to their nearest port, and a second supply within a period of three months having been prohibited, it became the duty of Her Ma

Droits et devoirs des nations neutres, vol. i, p. 347.

jesty's officers not to allow either of these limits to be exceeded; and it became the duty of belligerents, knowing that they were admitted into British ports on the condition of complying with these regulations, honestly and in good faith to conform to them. What if there should have been at any time an instance of deviation from the strict tenor of these regulations? The officer offending would, of course, be responsible to his superior. Would the government be responsible to the other belligerent for any damage done by the vessel ?

In the first place, it being the undoubted right of the local sovereign to impose such conditions as he pleases on the entry of belligerent vessels into his ports, but the regulations being directed to the sovereign's own officers to be carried out by them, and thus forming part of the municipal law of the neutral, what right does a belligerent acquire to insist that the regulations shall be enforced against his enemy? Simply that which arises from the duty, always incumbent on the neutral, as being of the very essence of neutrality, of enforcing against the one. belligerent any rule which he enforces against the other. If both are treated alike there can be no cause of complaint.

Again, to constitute an offense against the law of neutrality, there must be, as to constitute an offense against any law, a malus animus, a mens rea-an intention to contravene the law-here, that of showing undue favor to the one belligerent to the disadvantage of the other.

When, therefore, any departure from the letter of a regulation has arisen from mistake, as where a governor believed that, because a vessel had suffered from vis major, as from storm and tempest, the case formed an exception to the rule; or where he considered that, because he had furnished an extra supply to one belligerent, he might, under similar circumstances, do the same for another; or, where a mistake might be made as to the precise quantity of coal necessary to take the vessel to the nearest port, there would, as it seems to me, be no violation of neutrality for which, on rational grounds, a nation could be held responsible.

In all such cases of alleged infraction of neutrality, the true question should be, not whether a vessel has been permitted to stay in a port a few hours more or less than the precise time prescribed, nor whether a few tons, more or less, of coal have been allowed to be taken, but whether there has been an honest intention to carry out the regulations fairly and impartially. And, in judging of this, credit should be given to persons in authority for honesty of purpose and a desire to discharge their duty faithfully. This tribunal should take a larger and more generous view of official conduct than it may have assumed in the eyes of jealous belligerents, disappointed that exclusive favor was not shown to themselves, and irritated because, notwithstanding their loud demands that their opponents should be treated as pirates and outcasts, civilized nations, with Great Britain at their head, took a more liberal and enlightened view of the relative position of the parties.

Florida.

Undoubtedly, if, after regulations had been made by a neutral sovereign as to the accommodation and hospitality to be accorded to belligerent ships in the neutral ports, the regulations were enforced against the one, while they were not enforced or were relaxed with regard to the other, there would be a breach of neutrality, of which the less favored belligerent, if injury was thereby occasioned to him, would have a right to complain. And, in truth, it is to this point, and this point alone, and not to minute questions of hours of stay or tons of coal supplied, that the inquiry with reference to what has been called the hospitality afforded to belligerent vessels should be directed. Whether

Her Majesty's regulations were carried out by the local governors in the different ports fairly and conscientiously, with an honest desire to discharge their duty in obedience to those regulations, we shall see as we advance; but so far as I am aware, there is no ground for saying that the ships of the United States were not admitted into British ports as freely, or were not supplied with coal and other necessaries as liberally, as the ships of the confederates. One or two complaints made by querulous officials during the war will be noticed by and by. In substance they really come to nothing.

Whether coaling

But a novel and, to my mind, most extraordinary proposition is now put forward, namely, that if a belligerent ship is allowed to makes a port a base take coal, and then to go on its business as a ship of war, of naval operations. this is to make the port from which the coal is procured "a base of naval operations," so as to come within the prohibition of the second rule of the treaty of Washington.

We have here another instance of an attempt to force the words of the treaty to a meaning which they were never-at least so far as one of the contracting parties is concerned-intended to bear. It would be absurd to suppose that the British government, in assenting to the rule as laid down, intended to admit that whenever a ship of war had taken in coal at a British port and then gone to sea again as a war-vessel, a liability for all the mischief done by her should ensue. Nor can I believe the United States Government had any such arrière pensée in framing the rule; as, if such had been the case, it is impossible to suppose that they would not have distinctly inferined the British government of the extended application they proposed to give to the rule.

The rule of international law, that a belligerent shall not make neutral territory the base of hostile operations, is founded on the principle that the neutral territory is inviolable by the belligerent, and that it is the duty of the neutral not to allow his territory to be used by one bellig. erent as a starting-point for operations against the other. This is nowhere better explained, as regards ships of war, than by M. Ortolau, in the following passage:

Le principe général de l'inviolabilité du territoire neutre exige aussi que l'emploi de ce territoire reste franc de toute mesure on moyen de guerre, de l'un des belligérants contre l'autre. C'est une obligation pour chacun des belligérants de s'en abstenir; c'est aussi un devoir pour l'état neutre d'exiger cette abstention; et c'est aussi pour lvi un devoir d'y veiller et d'en maintenir l'observation à l'encontre de qui que ce soit. Ainsi il appartient à l'autorité qui commande dans les lieux neutres, où des navires belligérants, soit de guerre, soit de commerce, ont été reçus, de prendre des mesures néces saires pour que l'asile accordé ne tourne pas en machination hostile contre l'un des belligérants; pour empêcher spécialement qu'il ne devienne un lieu d'où les bâtiments de guerre ou les corsaires surveillent les navires ennemis pour les poursuivre et les combattre, et les capturer lorsqu'ils seront parvenus au-delà de la mer territoriale. Une de ces mesures consiste à empêcher la sortie simultanée des navires appartenant à des puissances ennemies l'une de l'autre.1

It must be, I think, plain that the words "base of operations" must be accepted in their ordinary and accustomed sense, as they have hitherto been understood, both in common parlance and among authors who have written on international law. Now, the term "base of warlike operations" is a military term, and has a well-known sense. signifies a local position which serves as a point of departure and return in military operations, and with which a constant connection and communication can be kept up, and which may be fallen back upon whenever necessary. In naval warfare it would mean something analogous-a port or water from which a fleet or a ship of war might

1 Diplomatie de la mer, vol. i, p. 291.

watch an enemy and sally forth to attack him, with the possibility of falling back upon the port or water in question, for fresh supplies, or shelter, or a renewal of operations.

The meaning to be ascribed to the term in question as applicable to a neutral port is to be gathered, as was so well pointed out by Sir Roun dell Palmer, from the instances given by the various writers on international law. Thus we find the distinguished author before referred to saying, in addition to the passage cited above:

Si des forces navales belligérantes sont stationnées dans une baie, dans un fleuve ou à l'embouchure d'un fleuve, d'un état neutre, à dessein de profiter de cette station pour exercer les droits de la guerre, les captures faites par ces forces navales sont aussi illégales. Ainsi, si un navire belligéraut mouillé ou croisaut dans les eaux neutres capture, au moyen de ses embarcations, un bâtiment qui se trouve en dehors des limites de ses eaux, ce bâtiment n'est pas de bonne prise, bien que l'emploi de la force n'ait pas eu lieu dans ce cas, sur le territoire neutre; néanmoins il est le résultat de l'usage de ce territoire; et un tel usage pour des desseins hostiles n'est pas permis.'

"It is a violation of a neutral territory," says Chancellor Kent, "for a belligerent ship to take her station within it in order to carry on hostile expeditions from thence, or to send her boats to capture vessels beyond it.

So Heffter:

Le neutre ne doit pas permettre que ses rades ou ses mers territoriales servent de stations aux bâtiments des puissances belligérantes.

Le respect du aux mers territoriales neutres ne se borne pas à l'abstention absolue de tout acte d'hostilité; il s'étend également aux faits qui préparent immédiatement ces actes. Ainsi une flotte, un vaisseau de guerre, un armateur ne saurait, sans commettre une violation de territoire, s'établir sur un point quelconque de cette mer, pour épier le passage des bâtiments, soit de guerre, soit marchands, de l'ennemi, ou les navires neutres, encore qu'il sorte de sa retraite pour aller les attaquer hors des limites de la juridiction neutre. Il est de même défendu de croiser dans les eaux réservées pour

arriver au même but.3

So Pistoye and Duverdy:

Les belligérants ne doivent, ni par eux-mêmes ni par leurs corsaires, s'établir dans les mers neutres, pour surveiller l'ennemi et lui courir sus. Ils ne doivent nou plus rester en croisière dans les mers neutres, pour saisir l'ennemi à sa sortie des ports neutres.1

None of the instances thus given have the remotest reference to the case of a vessel which, while cruising against an enemy's ships, puts into a port, and, after obtaining necessary supplies, again pursues her

course.

If a military or naval officer were asked whether a ship merely put ting into a port to coal, and then going to sea again, possibly on a particular warlike expedition, but without any idea of returning to or communicating with such port, for the next three months, can be held to be using it as "a base of operations," he would certainly laugh at the simplicity of the question.

That the United States are putting this construction on the term for the first time is plain from their own conduct throughout the civil war; unless, indeed, they are prepared to acknowledge a perpetual violation of British neutrality on their own part.

It appears from the return sent from the various British ports of the amount of coal supplied to ships of war of the United States," that these vessels received over 5,000 tons during the civil war. It appears from the claims made by the United States in respect of the employment of their vessels of war in the pursuit and capture of confederate ships,"

Diplomatie de la mer, vol. i, p. 302.

Kent's Commentaries on International Law, by Professor Abdy, p. 326.
Droit international, p. 275.

4 Prises maritimes, vol. i, p. 108.

British Appendix, vol. v, pp. 223-234.

6 United States Appendix, vol. vii, p. 120.

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