66

'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 appointed arbitrators met at Geneva in 1871, held thirty-two conferences there, and gave decision on September 14, 1872, according to which England had to pay 15,500,000 dollars damages to the United States.

The arbitrators put a construction upon the term due diligence and asserted other opinions in their decision which are very much contested and to which Great Britain never consented. Thus, Great Britain and the United States, although they agreed upon the three rules, did not at all agree upon the interpretation thereof, and they could, therefore, likewise not agree upon the contents of the communication to other maritime States stipulated by the Treaty of Washington. It ought not, therefore, to be said that the Three Rules of Washington have literally become universal rules of International Law. Nevertheless, they were the starting-point of the movement for the universal recognition of the fact that the duty of impartiality obliges neutrals to prevent their subjects from building and fitting out, to order of belligerents, vessels intended for warlike purposes, and to prevent the departure from their jurisdiction of any vessel, which, by order of a belligerent, has been adapted to warlike use. Particular attention must be paid to the fact that, although article 8 of Convention XIII. in other respects copies almost verbally the first of the Three Rules of Washington, it differs from it in so far as it replaces the words "to use due diligence" by "to employ the means at its disposal." For this reason the construction put by the Geneva arbitrators upon the term due diligence cannot find application to the rule of article 8, the employment of the means at the disposal of a neutral to prevent the acts concerned being a mere question of fact.

Oppenheim, vol. 2, pp. 406-409; Moores Dig., Vol. VII, see. 1330; Moore's Int. Arb., Vol. I, pp. 495-682 and 653-659; Phillimore, III, sec. 151; Annuaire, I (1877), p. 139.

British laws.

8. If any person within Her Majesty's dominions, without the licence of Her Majesty, does any of the following acts; that is to say: (1.) Builds or agrees to build, or causes to be built any ship with intent or knowledge, or having reasonable cause to believe that the same shall or will be employed in the military or naval service of any foreign State at war with any friendly State: or

(2.) Issues or delivers any commission for any ship with intent or knowledge, or having reasonable cause to believe that the same shall or will be employed in the military or naval service of any foreign State at war with any friendly State: or

(3.) Equips any ship with intent or knowledge, or having reasonable cause to believe that the same shall or will be employed in the military or naval service of any foreign State at war with any friendly State: or

(4.) Despatches, or causes or allows to be despatched, any ship with intent or knowledge, or having reasonable cause to believe that the same shall or will be employed in the military or naval service of any foreign State at war with any friendly State; such person shall

be deemed to have committed an offence against this Act, and the following consequences shall ensue:

(1.) The offender shall be punishable by fine and imprisonment, or either of such punishments, at the discretion of the court before which the offender is convicted; and imprisonment, if awarded, may be either with or without hard labour.

(2.) The ship in respect of which any such offence is committed, and her equipment, shall be forfeited to Her Majesty: provided that a person building, causing to be built, or equipping a ship in any of the cases aforesaid, in pursuance of a contract made before the commencement of such war as aforesaid, shall not be liable to any of the penalties imposed by this section in respect of such building or equipping if he satisfies the conditions following (that is to say):

(1.) If forthwith upon a proclamation of neutrality being issued by Her Majesty he gives notice to the Secretary of State that he is so building, causing to be built, or equipping such ship, and furnishes such particulars of the contract and of any matters relating to, or done, or to be done under the contract as may be required by the Secretary of State:

(2.) If he gives such security, and takes and permits to be taken such other measures, if any, as the Secretary of State may prescribe for ensuring that such ship shall not be despatched, delivered, or removed without the licence of Her Majesty until the termination of such war as aforesaid.

9. Where any ship is built by order of or on behalf of any foreign State, when at war with a friendly State, or is delivered to or to the order of such foreign State, or any person who to the knowledge of the person building is an agent of such foreign State, or is paid for by such foreign State or such agent, and is employed in the military or naval service of such foreign State, such ship shall, until the contrary is proved. be deemed to have been built with a view to being so employed, and the burden shall lie on the builder of such ship of proving that he did not know that the ship was intended to be so employed in the military or naval service of such foreign State.

British Foreign Enlistment Act, 1870, secs. 8 and 9.

British laws.

If any person within the limits of Her Majesty's dominions, and without the licence of Her Majesty,

Prepares or fits out any naval or military expedition to proceed against the dominions of any friendly State, the following consequences shall ensue:

(1) Every person engaged in such preparation or fitting out, or assisting therein, or employed in any capacity in such expedition, shall be guilty of an offence against this Act, and shall be punishable by fine and imprisonment, or either of such punishments, at the discretion of the court before which the offender is convicted; and imprisonment, if awarded, may be either with or without hard labour. (2) All ships, and their equipments, and all arms and munitions of war, used in or forming part of such expedition, shall be forfeited to Her Majesty.

British Foreign Enlistment Act, 1870, sec. 11.

Laws of the United States.

Every person who, within the limits of the United States, fits out and arms, or attempts to fit out and arm, or procures to be fitted out and armed, or knowingly is concerned in the furnishing, fitting out, or arming, of any vessel, with intent that such vessel shall be employed in the service of any foreign prince or state, or of any colony, district, or people, to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people with whom the United States are at peace, or who issues or delivers a commission within the territory or jurisdiction of the United States, for any vessel, to the intent that she may be so employed, shall be deemed guilty of a high misdemeanor, and shall be fined not more than ten thousand dollars, and imprisoned not more than three years. And every such vessel, her tackle, apparel, and furniture, together with all materials, arms, ammunition, and stores, which may have been procured for the building and equipment thereof, shall be forfeited; one-half to the use of the informer, and the other half to the use of the United States.

Sec. 5283, Revised Statutes.

Laws of the United States.

[The district courts shall take cognizance of all complaints, by whomsoever instituted, in cases of captures made within the waters of the United States, or within a marine league of the coasts or shores thereof.] In every case in which a vessel is fitted out and armed, or attempted to be fitted out and armed, or in which the force of any vessel of war, cruiser or other armed vessel is increased or augmented, or in which any military expedition or enterprise is begun or set on foot, contrary to the provisions and prohibitions of this Title: and in every case of the capture of a vessel within the jurisdiction or protection of the United States as before defined; and in every case in which any process issuing out of any court of the United States is disobeyed or resisted by any person having the custody of any vessel of war, cruiser, or other armed vessel of any foreign prince or state or of any colony, district, or people, or of any subjects or citizens of any foreign prince or state, or of any colony, district, or people, it shall be lawful for the President, or such other person as he shall have empowered for that purpose, to employ such part of the land or naval forces of the United States, or of the militia thereof, for the purpose of taking possession of and detaining any such vessel, with her prizes, if any, in order to the execution of the prohibitions and penalties of this Title, and to the restoring of such prizes in the cases in which restoration shall be adjudged and also for the purpose of preventing the carrying on of any such expedition or enterprise from the territories or jurisdiction of the United States against the territories or dominions of any foreign prince or state or of any colony, district, or people with whom the United States are at peace.

Sec. 5287, Revised Statutes.

Laws of the United States.

The owners or consignees of every armed vessel sailing out of the ports of the United States, belonging wholly or in part to citizens

thereof, shall, before clearing out the same, give bond to the United States, with sufficient sureties, in double the amount of the value of the vessel and cargo on board, including her armament, conditioned that the vessel shall not be employed by such owners to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace.

Revised Statutes, Sec. 5289.

Laws of the United States.

The several collectors of the customs shall detain any vessel manifestly built for warlike purposes, and about to depart the United States, the cargo of which principally consists of arms and munitions of war, when the number of men shipped on board, or other circumstances, render it probable that such vessel is intended to be employed by the owners to cruise or commit hostilities upon the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people with whom the United States are at peace until the decision of the President is had thereon, or until the owner gives such bond and security as is required of the owners of armed vessels by the preceding section.

Revised Statutes, sec. 5290.

Effect of armistice.

Shortly after I had entered upon the discharge of the executive duties I was apprized that a war steamer belonging to the German Empire was being fitted out in the harbor of New York with the aid of some of our naval officers rendered under the permission of the late Secretary of the Navy. This permission was granted during an armistice between that Empire and the Kingdom of Denmark, which had been engaged in the Schleswig-Holstein war. Apprehensive that this act of intervention on our part might be viewed as a violation of our neutral obligations incurred by the treaty with Denmark and of the provisions of the act of Congress of the 20th of April, 1818, I directed that no further aid should be rendered by any agent or officer of the Navy; and I instructed the Secretary of State to apprize the minister of the German Empire accredited to this Government of my determination to execute the law of the United States and to maintain the faith of treaties with all nations. The correspondence which ensued between the Department of State and the minister of the German Empire is herewith laid before you. The execution of the law and the observance of the treaty were deemed by me to be due to the honor of the country, as well as to the sacred obligations of the Constitution. I shall not fail to pursue the same course should a similar case arise with any other nation. Having avowed the opinion on taking the oath of office that in disputes between conflicting foreign governments it is our interest not less than our duty to remain strictly neutral. I shall not abandon it. You will perceive from the correspondence submitted to you in connection with this subject that the course adopted in this case has been properly regarded by the belligerent powers interested in the matter.

Annual message of Fresident Taylor, December 4, 1849, Richardson's Messages of the Presidents, p. 10.

In 1848, the opinion of the Attorney General was asked upon the question of whether a violation of the neutrality laws of the United States would be committed by the purchasing and fitting out in the port of New York, of a war vessel for the Prussian government, there being then an armistice in the warfare between Prussia and Denmark. It had been contended on behalf of the Prussian government that there was no violation of law inasmuch as the proximate intent of the vessel was not to commit hostilities against Denmark but to proceed to Bremerhaven and there await orders.

The Attorney General said that: "any intent, direct or contingent, * * * is within the act."

5 Op. Atty. Gen., 92.

Prohibition extends to vessels intended for insurgents.

In 1869, the Attorney General of the United States held that the neutrality act of 1818 would extend to the fitting out and arming of vessels for a revolted colony, whose belligerency had not been recognized.

13 Op. Atty. Gen., 177.

Article 8. Hague Convention XIII, 1907, is substantially identical with section 128, Austro-Hungarian Manual, 1913.

Genet [the French Minister] claimed the right of remaining in our ports, under the 17th and 26th articles of the Treaty of Commerce. But the government held that the privilege did not extend to vessels fitted out in our ports to cruise against friendly commerce.

The British Minister claimed that the prizes captured by such cruisers, and coming within American jurisdiction, should be restored. This claim was embarrassing to Washington, under the treaty with France. The result was, a despatch of 5th June, 1793, to the British and French ministers, which became an epoch in American neutrality. It declared that the fitting-out and commissioning of cruisers would be prohibited hereafter, and demanded the departure of such vessels from our ports; but, as to the surrender of prizes already taken by French privateers so fitted out, the government declined to enforce it, on the ground that these acts were done in remote ports, at the beginning of the war, before the proclamation, when parties did not know their rights under the treaty, and the laws of nations were not ascertained, and the difliculty of communication was great; and that, if the United States did its duty in suppressing such acts in the future, it ought to be accepted as a reasonable measure of justice between the belligerent powers, under the peculiar situation of the country. It was suggested also, that, if the captures were invalid, the Courts of Admiralty in the United States would deliver up the prizes, on private application and suit.

Note 215, Dana's Wheaton.

* * *

[In 1793], the Minister of France asserted the right of arming and equipping vessels for war, within the neutral territory of the United States. Examining this question under the law of nations and the general usage of mankind, the American government produced proofs, from the most enlightened and approved writers on the subject, that a neutral nation must, in respect to the war, observe an exact impartiality towards the belligerent parties; that