The Third Rule.

The Rules and International Law.

The third rule merely bound the neutral, said the Case of the United States, to use "due diligence" to prevent any violation of the obligations and duties prescribed by the first and second rules. It was maintained by the Case of the United States that the doctrines above set forth were in harmony with the views of the best publicists. Lord Westbury, who was lord high chancellor of England during the civil war in the United States, said in a debate in the House of Lords: "It was not a question whether armed ships had actually left our shores; but it was a question whether the ships with a view to war had been built in our ports by one of two belligerents. They need not have been armed; but if they had been laid down and built with a view to warlike operations by one of two belligerents, and this was knowingly permitted to be done by a neutral power, it was unquestionably a breach of neutrality." If, said the Case of the United States, it should be asserted that the construction, or the fitting out, or the arming, or the equipment of a vessel of war was to be regarded as falling within the category of dealings in articles ordinarily esteemed contraband of war, the United States might content themselves with a reference to the history of the legislation of both countries. Such a vessel was regarded as organized war, both by the practice of nations and by the publicists.3 The only respectable authority that had been cited even apparently to the contrary was an observation which Mr. Justice Story thrust into an opinion of the Supreme Court of the United States in the case of the Santissima Trinidad. It was clear, however, that he intended to confine his statement to the case of a vessel of war equipped and dispatched as a commercial venture, without previous arrangement or understanding with the belligerent and at the sole risk of the

1 Citing Hautefeuille, Des droits et des devoirs des nations neutres (Paris, 1849), II. 79–80; Bluntschli, Opinion impartiale sur la question de l'Alabama et sur la manière de la résoudre (reprinted at Berlin, 1870, from the Revue de Droit International); M. Rolin-Jacquemyn's review of Bernard's Neutrality of Great Britain, Revue de Droit International, 1871; Ortolan, Diplomatie de la mer, II. 208; Pierantoni, La Question Anglo-Americana dell' Alabama (Florence, 1870); Martens's Causes Célèbres, II. 229; De Cussy, Droit Maritime, II. 402.

2 March 7, 1868, Hansard, 3d series, CXCI. 346, 347.

3 Hansard, 1830, XXIII; Phillimore's Int. Law, I. 229; Ortolan, Diplomatie de la mer, II. 214; Heffter, Droit Int. (Bergson's ed.), 296.

47 Wheaton, 283.

owner.

On the very day after the case of the Santissima Trinidad was decided, Chief Justice Marshall, in a similar case of a vessel built in Baltimore, pronounced the opinion of the Supreme Court to the effect that the facts as to the vessel showed a violation of the laws of the United States in her original construction, equipment, and arming, and that, should the court decide otherwise, the laws for the preservation of the neutrality of the country would be completely eluded.'

Commissions.

It had, said the Case of the United States, Effect of Belligerent been intimated in the course of the discussions upon the questions at issue, that the power of the British Government to interfere with, to arrest, or to detain either of the belligerent cruisers whose acts were complained of ceased when it was commissioned as a man of war, and that at the same time the liability of that government for their actions then ceased. The liability to make compensation could not, however, be escaped in such a "frivolous way." Few of the cruisers built and armed in Great Britain ever saw the line of the coast of the insurgent States. The Florida, indeed, entered the harbor of Mobile, but she passed the blockading squadron as a British man-of-war. In most cases the commissions went out from the branch office of the Confederate navy department established at Liverpool, from which the sailing orders of the vessels and the instructions to their commanders were issued. The comedy was played of completing on the high seas what had been carried to the verge of completion in England. The parallel was complete between the commissions in question and those issued by Genet in 1793, which were disregarded by the United States at the instance of Great Britain. The United States did not deny the force of the commission of a man-of-war issuing from a recognized power. But they confidently denied that the receipt of a commission by a vessel like the Alabama, the Florida, the Georgia, or the Shenandoah exempted Great Britain from the liability growing out of the violation of her neutrality.

The "Santissima
Trinidad."

In this relation the Case of the United States discussed to the cases of the Santissima Trinidad and the Gran Para.3 During the war between the United States and Great Britain of 1812 a privateer called the Monmouth was constructed at Baltimore and

The Gran Para, 7 Wheaton, 471.

27 Wheaton, 283.

3 Id. 471.

cruised against the enemy. After the peace she was stripped of her armament and converted into a brig. She was subsequently loaded with munitions of war, armed with a portion of her original armament, and sent to Buenos Ayres (which was then a revolted colony of Spain recognized as a belligerent, but not recognized as an independent government) to find a market for her cargo. The supercargo was also authorized "to sell the vessel to the Government of Buenos Ayres if he could obtain a suitable price." He did sell her, and she subsequently entered the service of that government as a man-ofwar. After she was thus commissioned she put into a port of the United States, where she enlisted thirty new men; and she took with her when she put to sea the newly enlisted men, and a tender which carried some mounted guns and twenty-five men. After this addition to her power, assisted by the tender, she captured the Spanish vessel Santissima Trinidad, and carried her cargo into Norfolk, a port of the United States, where the Spanish consul, acting on behalf of the owners of the property, claimed restitution of it. The court decreed restitution on the ground of an illegal increase of armament in the neutral territory after the commission.

The case of the Gran Para was similar. The The "Gran Para." Gran Para was a Portuguese vessel which was captured by a Buenos Ayrean man-of-war called the Irresistible. In this case Chief Justice Marshall said:

"That the Irresistible was purchased, and that she sailed out of the port of Baltimore, armed and manned as a vessel of war, for the purpose of being employed as a cruiser against a nation with whom the United States were at peace, is too clear for controversy. That the arms and ammunition were cleared out as cargo can not vary the case. Nor is it thought to be material that the men were enlisted in form as for a common mercantile voyage. There is nothing resembling a commercial adventure in any part of the transaction. The vessel was constructed for war, and not for commerce. There was no cargo on board but what was adapted to the purposes of war. The crew was too numerous for a merchantman, and was sufficient for a privateer. These circumstances demonstrate the intent with which the Irresistible sailed out of the port of Baltimore. But she was not commissioned as a privateer, nor did she attempt to act as one, until she reached the River La Plata, when a commission was obtained, and the crew reenlisted. This court has never decided that the offense adheres to the vessel, whatever changes may have taken place, and can not be deposited at the termination of the cruise in preparing for which it 5627-37

was committed; and as the Irresistible made no prize on her passage from Baltimore to the River La Plata, it is contended that her offense was deposited there, and that the court can not connect her subsequent cruise with the transactions at Baltimore. If this were to be admitted in such a case as this, the laws for the preservation of our neutrality would be completely eluded, so far as this enforcement depends on the restitution of prizes made in violation of them. Vessels completely fitted in our ports for military operations need only sail to a belligerent port, and there, after obtaining a commission, go through the ceremony of discharging and reenlisting their crew, to become perfectly legitimate cruisers, purified from every taint contracted at the place where all their real force and capacity for annoyance was acquired. This would, indeed, be.a fraudulent neutrality, disgraceful to our own government, and of which no nation would be the dupe. It is impossible for a moment to disguise the facts that the arms and ammunition taken on board the Irresistible at Baltimore were taken for the purpose of being used on a cruise, and that the men there enlisted, though engaged in form as for a commercial voyage, were not so engaged in fact. There was no commercial voyage, and no individual of the crew could believe there was one. Although there might be no express stipulation to serve on board the Irresistible after her reaching the La Plata and obtaining a commission, it must be completely understood that such was to be the fact. For what other purpose could they have undertaken this voyage? Everything they saw, everything that was done, spoke a language too plain to be misunderstood. It is therefore very clear that the Irresistible was armed and manned in Baltimore in violation of the laws and of the neutral obligations of the United States. We do not think that any circumstances took place in the River La Plata by force of which this taint was removed."

The "Rappahannock."

*

The Case of the United States also referred to the case of the Rappahannock, which was the name given to a gunboat purchased of the British Government in 1864 by persons who proved to be agents of the insurgents. On the way from the Thames to Calais, where the equipment was to be completed, "the name of the vessel was changed to the Rappahannock, the insurgent flag was hoisted, an insurgent officer, holding an insurgent commission, took the command, and the crew were mustered into the service of the insurgents. On arrival at Calais attempts were made to complete the equipment. The French Government stopped this by placing a man-of-war across the bows, and holding the vessel as a prisoner, and the Kappahannock was thus prevented from destroying vessels and commerce sailing under the flag of a nation with which France

was at peace." The British Government "itself recognized the principle when it ordered the Alabama to be seized at Nassau, and when it found fault with the governor of the Cape of Good Hope for not detaining the Tuscaloosa at Cape Town." "The principle for which the United States contend has therefore," said the Case, "been recognized by Great Britain, Spain, Portugal, France, and the United States."

Enumeration of Neutral Duties.

In closing this branch of the subject the Case of the United States laid down the following rules as having been established:

1. That it is the duty of a neutral to preserve strict and impartial neutrality as to both belligerents during hostilities.

2. That this obligation is independent of municipal law. 3. That a neutral is bound to enforce its municipal laws and its executive proclamations; and that a belligerent has the right to ask it to do so; and also the right to ask to have the powers conferred upon the neutral by law increased if found insufficient.

4. That a neutral is bound 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.

5. That a neutral is bound to use like diligence to prevent the construction of such a vessel.

6. That a neutral is bound to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war against any power with which it is at peace, such vessel having been specially adapted, in whole or in part, within its jurisdiction to warlike use.

7. That a neutral may not permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other.

8. That a neutral is bound to use due diligence in its ports or waters to prevent either belligerent from obtaining there a renewal or augmentation of military supplies, or arms for belligerent vessels, or the recruitment of men.

9. That when a neutral fails to use all the means in its power to prevent a breach of the neutrality of its soil or waters, in any of the foregoing respects, the neutral should make compensation for the injury resulting therefrom.

10. That this obligation is not discharged or arrested by the change of the offending vessel into a public man-of-war.