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next to impossible to frame words which, while assuming that the international duty of prevention did not exist, should attach, and at the same time limit, liability to the neglect to use due diligence to insure it.
There can be no doubt that these were the views on which the Award proceeded. Count Sclopis professes to be unable to comprehend what Sir Roundell Palmer meant by saying that the Rules did not imply that a neutral Government in all cases was bound to prevent the acts against which they were directed. In like manner M. Staempfli very plainly says that the neutral is bound to an initiative in the fulfilment of the duty. He says: 'Les dues diligences à exercer comprennent • implicitement la propre vigilance et la propre initiative dans le • but de découvrir et d'empêcher toute violation de la propre • neutralité. Un État belligérant n'a ni le devoir ni le droit
d'exercer la surveillance, ni de faire la police dans un État neutre à la place des autorités du pays.'
We cannot wonder that under these Rules, so interpreted, we were found in the wrong. Our surprise rather is that we escaped so easily. But before we recommend these Rules to other nations, it would be desirable that it should be made quite clear whether our recommendation is to apply to our own construction of them, or to that of the Arbitrators. These interpretations widely differ, and impose very different burdens on neutrals. Nor is the ambiguity to which we have now referred the only one which must be cleared up before these Rules can enter the European code.
The Arbitrators seem to have given no weight to the protest on the part of the British Government, which is embodied in the Treaty, that at the time when the matters complained of took place, Great Britain was under no international obligation to use due diligence for the object in question. Count Sclopis says: Ces règles, de la façon dont elles sont établies, con• stituent une obligation fondée sur le droit des gens général; et ce serait en changer la nature, en détruire complètement l'effet, que d'admettre, ainsi que le voudrait l'argument du conseil de ósa Majesté Britannique, que la mesure des dues diligences à
employer, il faut la dériver des règles et des principes de la • législation de chacune des parties contractantes : c'est-à-dire • que la généralité et la grandeur de la règle pourront être • soumises à des limitations par la loi municipale.'' He can give no weight to the argument drawn from impossibilité politique, which he represents as being : Oui, j'ai consenti à passer la
règle, mais les moyens d'y satisfaire me manquent: tant pis * pour la règle' (p: 4446). In their award the Arbitrators
lay it down, not only as a corollary from the Convention, but also as matter of public law, that 'the due diligence referred • to in the first and third of these Rules ought to be exercised by neutral Governments in exact proportion to the risks to ' which either of the belligerents may be exposed from a failure * to fulfil the obligations of neutrality on their part.'
The fact that the award proceeds on this rescript is very important. It embraces principles very material to the position of neutrals, and which would rather seem to be essential to the special results at which the Arbitrators arrived. Count Sc!opis more than once reverts to this view in his remarks. He says that the performance of the duty doit • être en raison directe des dangers réels que le belligérant
peut courir par le fait ou la tolérance du neutre. And again : * Le fait, en effet, de la construction des vaisseaux,
de leur armement et équipement, de l'exportation des armes • de guerre, prend un aspect différent selon les circonstances • des temps, des personnes, et des lieux où il s'accomplit.' The application of this rule to the dispute in hand was plain enough. The South were blockaded. They had no ports, and no fleet. If they were permitted to supply the defect by purchasing in a foreign market, the North of course would suffer injury to an unusual extent, or be compelled to forego a great advantage. Therefore, conclude the Arbitrators, there was a greater duty of vigilance imposed on Great Britain than would have rested on her if the antagonist had been a maritime Power the ports of which were not blockaded.
There may be, in the performance of ordinary civil obligations, reason, and perhaps soundness, in the principle. Nor can it be doubted that the stake which the two belligerents played for, in obtaining or preventing the acquisition of these vessels, was a very critical one. Probably the whole fate of the contest rested on the maintenance of the blockade. But viewed as the future basis of international obligation, the principle seems to involve results which might be very anomalous and inconvenient. According to it, the diligence Great Britain was bound to use to prevent the Confederates from obtaining British-built ships was entirely different from that which she was bound to use to prevent similar acquisitions by the Federals; for the Federals were not blockaded, and had ships of their own.' Consequently, Count Sclopis would bold, that the loss to the Confederates in the case supposed would be much less than that suffered by the Federals in the actual case; and therefore the amount of diligence required would be less.
The significance of this proposition, which goes deeper than
is at first sight apparent, may be illustrated by an extract from Mr. Evarts' reply to Sir Roundell Palmer's pleading: Speaking in regard to the second of the three Rules, which lays down the duty of the neutral State to prevent the neutral territory from being made a base of belligerent operations, he says :
• What are really commercial transactions in contraband of war, are allowed by the practice of the United States and of England equally, and are not understood to be proscribed, as hostile acts, by the law of nations, and it is agreed between the two countries that the second Rule is not to be extended to embrace, by any largeness of construction, Riere commercial transactions in contraband of war.
Sir Alexander Cockburn.- Then I understand you to concede that the private subject may deal commercially in what is contraband of war?
• Jr. Evarts.-I will even go further than that, and say mercial dealings or transactions are not proscribed by the law of nations, as violations of neutral territory, because they are in contraband of war.
Therefore I do not need to seek any aid in my present purpose of exhibiting the transactions under the second Rule by these cruisers, as using Great Britain as the base for these naval operations, from any construction of that Rule which would proscribe a mere commercial dealing in what is understood to be contraband of war. Such is not the true sense of the Article, nor does the law of nations proscribe this commercial dealing as a liostile act. But whenever the neutral ports, places, and markets are really used as the bases of naval operations, when the circumstances show that resort and that relation, and that direct and efficient contribution, and that complicity and that origin and authorship, which exhibit the belligerent himself, drawing military supplies for the purpose of his naval operations from neutral ports, that is a use by a belligerent of neutral ports and waters as a base of his naval operations, and is prohibited by the second Rule of the Treaty. Undoubtedly the inculpation of a neutral for permitting this use turns upon the question whether due diligence has been used to prevent it.' (P. 4651.)
He proceeds to maintain that acts which would have been mere commercial speculations, had the other belligerent been a maritime Power, with open ports, became hostile acts in respect of the subsistence of the blockade, because the ports of the neutral were the only bases of departure which the belligerents had for naval operations.
In this view, the international law, as expressed in the Treaty, ought to have been limited to the case of blockade ; and indeed Mr. Adams, in a letter quoted by Sir Alexander Cockburn, does so limit it. Mr. Adams says (p. 4133): The
• • sale and transfer by a neutral of arms, munitions of war, • and even of vessels of war, to a belligerent country not subject to blockade at the time, as a purely commercial transaction, is VOL. CXXXVII. NO. CCLXXIX.
• decided by these authorities not to be unlawful. They go not a step farther; and precisely to that extent I have myself taken no exception to the doctrine.'*
It well becomes us to ponder on the distinction here so earnestly developed. It is not without cogency. But its effect, if carried out to its legitimate results, would be to limit the law of the Treaty substantially to the · Alabama' claims. It seldom happens that a belligerent is in the exceptional position in which the Confederates found themselves. Thus, that which would have been a mere commercial speculation if France, or Prussia, or Russia, or Spain had been the belligerent customer, and the United States the neutral merchant, became hostile only by reason of the existing blockade of the Southern ports. If this rule were adopted, an entirely different scale of due diligence would prevail, and the whole principle on which neutral ports are held to become a base for hostile operations, would fluctuate, according as the belligerent for whom the ships were built was, or was not, blockaded.
If any part of the consideration given for our concessions in the Treaty was the hope or expectation that the principle there recognised might operate to our advantage in future wars, we fear these prospects are doomed to disappointment. It would rather seem as if the scale of due dili
gence, and the hostile character of the acts in question, had been fixed for the special cases—we had almost said the solitary cases, of the Alabama' and the Florida.' It by no means follows that American statesmen would at all admit the analogy in any other circumstances. Such isolation as occurred in the case of the Confederate States is, as we have said, rare; and if the belligerent Power had possessed the means of receiving the vessel in a port of her own, according to the American view, the neutral port from which she originally sailed could not be considered to have been a base of operations. We only remember one other war -if war it could be called--in which the command of a base in a neutral State was essential to the belligerent: we mean the Fenian invasion of Canada. If the obligation of due diligence to prevent the departure of a hostile force from neutral soil was ever imposed on a neutral Government, it lay on the United States on that occasion ; and if she so utterly repudiated liability in that instance as to refuse even to negotiate on the subject, the prospects are not encouraging that she will ever admit it to her own prejudice in any other.
* Mr. Adams to Earl Russell, 6th April, 1863.
These are the views on which this award proceeds. They seem to establish, as international law, two propositions, which we suppose are to rule this country and the United States for the future; and the adoption of which we are to recommend to Europe generally. First, that the responsibility of taking effective measures to prevent the departure of vessels adapted for hostile purposes from neutral territory, for the service of a belligerent, rests entirely with the neutral State, whatever may be the nature of its internal or municipal legislation; and secondly, that the amount of vigilance required of a neutral State to this end varies exactly with the amount of injury which one of the belligerents is likely to suffer from the neglect to fulfil it; and of course decreases in the same ratio as the interest involved decreases.
We had hoped that from this American nettle we might have plucked the flower certainty; and that this country might have been able, in conjunction with the other great Powers, to establish the international obligations of neutrals on something like a clear and consistent foundation. It is far more important for a great commercial community like this to know what the law is, and how far mercantile operations are affected by foreign war, than to reduce the received rules to any scientific standard. But this award leaves us entirely in a maze, as to what law is to rule us for the future. We can hardly endorse Mr. Forster's declaration to his constituents at Bradford, that in exchange for our three millions we have obtained . a new maritime code. For there seems to us to be an irreconcilable difference between the principles we thought we had sanctioned, and those which the majority of the Arbitrators decided that we had sanctioned; and the duty imposed by these principles seems to vary so incessantly with the position of belligerents, and the fortune of war, as to make it exceedingly difficult either to define or to discharge it. We turn with some hope to Sir Alexander Cockburn for a clue to guide us through this labyrinth.
If the arbitration at Geneva had produced no other result than to have been the occasion of giving to this country and Europe the masterly dissertation of Sir Alexander Cockburn, it would have been a memorable event for which we should have been grateful. It forms, no doubt, a portentous supplement to the ‘London Gazette,' occupying as it does 350 closely, and not too-well printed folio pages of that usually dry periodical. For any immediate purpose incident to the result of the arbitration, it might be criticised as too voluminous and elaborate; and probably few general readers