M. Rolin-Jaequemyns, after an able analysis of the subject, came to the conclusion that the rules did not constitute an innovation. He commented on Lorimer's idea that a peace must be regarded as delusive if concluded before the total ruin of the combatants.1

William Beach Lawrence thought that the interpretation given by the Geneva tribunal to the words "due diligence" rendered the rules unacceptable. He thought that the declaration that the diligence of the neutral government must be in exact proportion to the risk to which the belligerents were exposed would make neutrals guarantors of every injury which might be inflicted on one of the belligerents by the use of the property of the other belligerent which should be found in the neutral jurisdiction.2

Prof. Mountague Bernard adhered to the view of his government, as expressed in the treaty, of which he was one of the signers, that the rules constituted an innovation.3

Bluntschli, as reporter of the commission, summed up its conclusions. He pronounced the paper of Calvo "very learned and very judicious," and declared that it "demonstrated" that the rules did not constitute an innovation, but on the contrary embodied long recognized principles by which neutral states had regulated their conduct. He dissented from Lorimer's suggestion that it was good policy to prolong wars. He concurred with President Woolsey in the view that the rules might be more definitely expressed and that "due diligence" should be defined. He expressed general concurrence in the views of Rolin-Jaequemyns, and dissented from the argument of William Beach Lawrence.1

The institute voted that the rules were only declaratory of the law of nations; but, with a view to prevent controversies as to their interpretation, referred them for revision to the commission which had previously had them under examination, at the same time adding to the commission four new members, one of whom was Professor Westlake."

Rev. de Droit Int. VI. 561.

2 Id. 574.

3 Id. 575.

1 Id. VII. 127.

5 * Id. VI. 606. The commission as thus constituted was composed of Bluntschli, reporter, and MM. Asser, Carlos Calvo, Lorimer, Mancini, Neumann, Rolin-Jaequemyns, Westlake, and Woolsey.

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At the session of the institute at The Hague in 1875 Bluntschli submitted a project of rules, with certain observations and proposed amendments presented by various members of the commission.' The report was discussed on the 30th of August, there being present M. Asser, counselor to the ministry of foreign affairs, Amsterdam; Prof. Mountague Bernard; M. Besobrasoff, of St. Petersburg; Dr. Bluntschli, of Heidelberg; M. Brocher, of the University of Geneva; Dr. Bulmerincq, counselor of state, of Wiesbaden; David Dudley Field; Professor Lorimer; Dr. Marquardsen, member of the Reichstag; Professor de Martens, of St. Petersburg; M. Moynier, of Geneva; Dr. Neumann, member of the Austrian House of Peers; M. de Parieu, member of the French Senate and of the Institute of France; M. Pierantoni, member of the Italian Parliament; M. Rolin-Jaequemyns, of Ghent; Sir Travers Twiss; Professor Westlake; and MM. Den Beer Portugael, Hall, Holland, Rivier, and Albéric Rolin. The institute, Messrs. Bernard, Lorimer, and Twiss opposing, adopted the following rules:2

"I. L'État neutre désireux de demeurer en paix et amitié avec les belligérants et de jouir des droits de la neutralité, a le devoir de s'abstenir de prendre à la guerre une part quelconque, par la prestation de secours militaires à l'un des belligérants ou à tous les deux, et de veiller à ce que son territoire ne serve de centre d'organisation ou de point de départ à des expéditions hostiles contre l'un d'eux ou contre tous les deux.

"II. En conséquence l'État neutre ne peut mettre, d'une manière quelconque, à la disposition d'aucun des États belligé rants, ni leur vendre ses vaisseaux de guerre ou vaisseaux de transport militaire, non plus que le matériel de ses arsenaux ou de ses magasins militaires, en vue de l'aider à poursuivre la guerre. En outre l'État neutre est tenu de veiller à ce que d'autres personnes ne mettent des vaisseaux de guerre à la disposition d'aucun des États belligérants dans ses ports ou dans les parties de mer qui dépendent de sa juridiction.

"III. Lorsque l'État neutre a connaissance d'entreprises ou d'actes de ce genre, incompatibles avec la neutralité, il est tenu de pendre les mesures nécessaires pour les empêcher, et de

Rev. de Droit Int. VII. 427.

2 Annuaire, I. 139. Rivier, in his recent work on the law of nations, intimates that these rules are not less liable to misinterpretation than the three rules themselves. He observes that the communication of the three rules to maritime powers with an invitation to accede to them would now be superfluous, since no state would dream of contesting the principle they contain, even though the manner in which it is expressed might be criticised. (Principes du Droit des Gens, par Alphonse Rivier, II. 408; Paris, 1896.)

poursuivre comme responsables les individus qui violent les devoirs de la neutralité.

"IV. De même l'État neutre ne doit ni permettre ni souffrir que l'un des belligérants fasse de ses ports ou de ses eaux, la base d'opérations navales contre l'autre, ou que les vaisseaux de transport militaire se servent de ses ports ou de ses eaux, pour renouveler ou augmenter leurs approvisionnements mili taires ou leurs armes, ou pour recruter des hommes.

"V. Le seul fait matériel d'un acte hostile commis sur le territoire neutre, ne suffit pas pour rendre responsable l'État neutre. Pour qu'on puisse admettre qu'il a violé son devoir, il faut la preuve soit d'ane intention hostile (Dolus), soit d'une négligence manifeste (Culpa).

VI. La puissance lésée par une violation des devoirs de neutralité n'a le droit de considérer la neutralité comme éteinte, et de recourir aux armes pour se défendre contre l'État qui l'a violée, que dans les cas graves et urgents, et seulement pendant la durée de la guerre.

"Dans les cas peu graves ou non urgents, ou lorsque la guerre est terminée, des contestations de ce genre appartiennent exclusivement à la procédure arbitrale.

“VII. Le tribunal arbitral prononce ex bono et æquo sur les dommages-intérêts que l'État neutre doit, par suite de sa responsabilité, payer à l'État lésé, soit pour lui-même, soit pour ses ressortissants."1

I. The neutral state, desirous of maintaining peace and friendship with the belligerents and of enjoying the rights of neutrality, ought to abstain from taking any part whatever in the war by furnishing military aids to either or both of the belligerents, and to see to it that its territory does not serve as a center of organization or point of departure for hostile expedi tions against one or both of the belligerents.

II. Consequently the neutral state can not in any manner put at the disposition of any belligerent or sell to it ships of war or military transports or material from its arsenals or military stores with a view to aid it in the prosecution of the war. Moreover, the neutral state is bound to see to it that other persons do not within its ports or waters put vessels of war at the disposition of any of the belligerents.

III. When the neutral state has knowledge of the enterprises or acts of this character, which are incompatible with neutrality, it is bound to take the necessary measures to prevent them, and to hold responsible the individuals who violate the duties of neutrality.

IV. The neutral state ought not to permit or suffer the belligerents to make its ports or waters the base of naval operations against each other, or their military transports to use its ports or waters for renewing or augmenting their military supplies or their arms, or for recruiting men.

V. The mere fact that a hostile act has been committed on the neutral territory does not suffice to make the neutral state responsible. In order to show that such state has violated its duty it is necessary to show either a hostile intention (dolus) or a manifest neglect (culpa).

VI. The power injured by the violation of the duties of neutrality has

Wharton, who had once gone so far as to declare that the "three rules" "placed limitations on the rights of neutrals greater even than those England had endeavored to impose during the Napoleonic wars," afterward stated that "while the weight of authority" was that "the rules themselves contain propositions which are generally unobjectionable," such was "not the case with the decisions of the majority of the arbitrators, who interpret the 'rules' so as to impose on neutrals duties not only on their face unreasonable, but so oppressive as to make neutrality a burden which no prudent nation, in cases of great maritime wars abroad, would accept." As to what was meant by "the decisions of the majority of the arbitrators" we are left to conjecture; but it would be unfair to assume that the phrase was intended to apply to the result at which the tribunal arrived with respect to the Alabama, the Florida, and the Shenandoah after she left Melbourne. It seems rather to have been intended to apply to the "rationes decidendi" of the arbitrators; and in this assumption we are warranted by the fact that the passage in which the phrase in question is found is preceded by various extracts in which those reasons, especially on the question of diligence, are criticised. For example, a passage from Creasy is quoted, in which four of the arbitrators are represented as having "virtually" announced the "dogma" that in determining whether a state is chargeable with negligence, "no regard whatever is to be paid to the system of criminal process which,

3

a right to consider neutrality as broken, and to resort to arms to defend itself against the state which has violated neutrality, only in grave and urgent cases and only while the war is going on. In cases not grave or urgent, or when the war has come to an end, disputes of this kind appertain exclusively to arbitral procedure.

VII. The arbitral tribunal pronounces ex bono et æquo on the amount of damages which the neutral state ought, in view of its responsibility, to pay to the injured state either for itself or its citizens.

1 Commentaries on American Law, sec. 244. In the same section it was also asserted that the rules had been "repudiated" by Great Britain and the United States and "rejected by all other powers."

2 Int. Law Digest, III. 649.

3 A recent English writer, whose pages bear evidence of a personal examination of the records, expresses a clear opinion, for which he sets forth his reasons, that Great Britain was responsible for these vessels on any reasonable theory of due diligence. (Walker, Science of International Law, 485, 490, 496.)

International Law, 335.

and which alone, is recognized and permitted by the fundamental institutions of that state." Certain passages on the subject of due diligence are also quoted from Sir Alexander Cockburn's dissent, with comments from which it might be implied that a majority of the arbitrators held that the neutral must employ "perfect diligence."

Doubtless it is true that if we take particular expressions in the individual opinions of the arbitrators and in the award, and construe them without reference either to the context or to the results at which the tribunal arrived, it may not be difficult to find matter for criticism. For example, the representation that four of the arbitrators "virtually" announced a "dogma" subversive of the legislative independence of states evidently is based on their declaration in the case of the Alabama that "the government of Her Britannic Majesty cannot justify itself for a failure of due diligence on the plea of insufficiency of the legal means of action which it possessed." It is not asserted that this declaration actually contains the dogma in question, but it is alleged that it "virtually" does so. On the other hand, it may be said that the declaration was merely intended to express the sound general principle, peculiarly applicable to the case of the Alabama, which Earl Russell had admitted to be a "scandal and reproach" to British laws, that a government can not be allowed to say, when called upon to perform its international duties: "The laws do not permit me to do so." It is a self-evident proposition that if a government may by legislation fix the measure of what it owes to other states, there is no such thing as international law or international obligation. To say that a government can not "justify" a failure in duty by pleading the "insufficiency" of its laws by no means warrants the inference that, in determining whether it has been negligent, "no regard whatever" is to be paid to its system of criminal process.

We have referred to certain passages from Sir Alexander Cockburn on the subject of due diligence. The rule laid down in these passages and approvingly commented upon by Wharton is that which the "diligens paterfamilias suis rebus adhibere solet; or in the form in which Wharton expresses it, "such diligence as under the circumstances of the particular case good business men of the particular class are accustomed to show." To what extent does this differ from the rule laid down by the four arbitrators? The award declares that the