any evidence, though it is denied by Great Britain, and though the ship actually proved to be unsuitable for such use. Still less could the Rule apply to the Shenandoah, a merchant-ship, transferred to the Confederates, without receiving, within British jurisdiction, any new equip ment or outfit whatever, of any kind, in order to enable her to cruise or to be employed in the Confederate service. It is clear, beyond controversy, that when the Shenandoah entered the port of Melbourne as a public ship of war of the Confederates, nothing had been done to her, in any part of the British dominions, which could be so much as pretended to be an infringement of the first Rule of the Treaty, or of the law of nations, or of any British law whatever. And yet, in the Argument of the United States (pp. 120, 121) a statement by the United States Consul at Melbourne, in a letter to Mr. Seward, to the effect, that, in some conversation with him, the Colonial Law-Officers had “seemed to admit that she was liable to seizure and condemnation if found in British waters," is gravely brought forward and seriously commented on, as a reason why she ought to have been seized at Melbourne. The Argument of the United States suggests, however, a distinction between "public ships of recognized nations and Sover- 8. The distinction eigns" and "public ships belonging to a belligerent Power suggested by the which is not a recognized State." For such a distinction there tween ships of war of is neither principle nor authority. The passage cited in and ships of a nonthe British Summary (p. 31) from the judgment of Mr. Justice Story, in the case of the Santissima Trinidad, states the true principles applicable to this part of the subject. The ship Independencia del Sud, whose character was there in controversy, had been commissioned by the revolutionary Government of Buenos Ayres : United States be. recognized nations recognized State. "There is another objection," said the learned Judge," urged against the admission of this vessel to the privileges and immunities of a public ship, which may well be disposed of in connection with the question already considered. It is, that Buenos Ayres has not yet been acknowledged as a sovereign independent Government by the Executive or Legislature of the United States, and, therefore, is not entitled to have her ships of war recognized by our Courts as national ships. We have, in former cases, had occasion to express our opinion on this point. The Government of the United States has recognized the existence of a civil war between Spain and her colonies, and has avowed a determination to remain neutral between the parties, and to allow to each the same right of asylum and hospitality and intercourse. Each party is, therefore, deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war, and entitled to be respected in the exercise of those rights. We cannot interfere, to the prejudice of either belligerent, without making ourselves a party to the contest, and departing from the posture of neutrality. All captures made by each must be considered as having the same validity; and all the immunities which may be claimed by public ships in our ports under the law of nations must be considered as equally the right of each." In like manner, in the recent case of the Hiawatha, (a British prize, taken by the United States at the commencement of the late civil war,) when the question arose, whether the civil contest in America had the proper legal character of war, justum bellum, or that of a mere domestic revolt, and was decided by the majority of the Supreme Court of the United States in accordance with the former view, Mr. Justice Grier, delivering the opinion of the majority, said: It is not the less a civil war with belligerent parties in hostile array because it may be called an "insurrection" by one side, and the insurgents be considered as rebels or traitors. It is not necessary that the independence of the revolted province or State be acknowledged, in order to constitute it a party belligerent in a war, according to the law of nations. Foreign nations acknowledge it as war by a declaration of neutrality. The condition of neutrality cannot exist unless there be two belligerent parties. In the case of the Santissima Trinidad (7 Wheaton, 337) this court says: The Government of the United States has recognized the existence of a civil war be. tween Spain and her colonies, and has avowed her determination to remain neutral between the parties. Each party is therefore deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war." Professor Bluntschli, in a contribution to the "Revue de droit international" for 1870. (pp. 452-470,) in which, upon the assumptions of fact contained in a speech of Mr. Summer in the Senate of the United States, (and on those assumptions only,) he favors some part of the claims of the United States against Great Britain so far as relates to the particular ship Alabama, distinctly lays down the same doctrine: Du reste, le parti révolté, qui opère avec des corps d'armée militairement organisés, et entreprend de faire triompher par la guerre un programme politique, agit, alors même qu'il ne forme point un état, tout au moins comme s'il en constituait un, an lien et place d'un état ("an Staates statt"). Il affirme la justice de sa cause, et la légitimité de sa mission, arec une bonne foi égale à celle qui se présume de droit chez tout état belligérant. (Pages 455-456.) Again: Pendant la guerre on admet, dans l'intérêt de l'humanité, que les deux parties agissent de bonne foi pour la défense de leurs prétendus droits. (Page 458.) And, at pages 461, 462: Si l'on tient compte de toutes ces considérations, on arrive à la conclusion suivante: états éuropéens, en présence de la situation que créaient les faits, la lutte engagé C'est que, à considérer d'un point de vue impartial, tel qu'il s'offrait et s'imposait aux entre l'union et la confédération, c'est-à-dire, entre le ford et le sud, il était absolument impossible de ne pas admettre que les états-Unis fussent alors engagés dans une grande guerre civile, ou les deux partis avaient le caractère de puissances politiquement et militairement organisées, se faisant l'uue à l'autre la guerre, suivant le mode que le droit des gens reconnaît comme régulier, et animés d'une égale confiance dans le bon droit. Tout le monde était d'accord qu'il y avait guerre, et que, dans cette guerre, il y avait deux parties belligérantes. commissioned ships of war. * That all the vessels of which there is any question before the Arbi9. All the ships in trators, and especially those which are alleged to have been question, were dus equipped or adapted for warlike uses within British territory. were, in fact, commissioned and employed as public ships of war by the authorities then exercising the powers of public Government in the Confederate States, is not seriously (if it be at all) disputed by the United States. The proofs of it abound both elsewhere and in those intercepted letters from Confederate authorities, and other Confederate documents, (such as the Journal of Captain Semmes, &c.,) which the United States have made part of their evidence; and to which, for this purpose at all events, they cannot ask the Arbitrators to refuse credit. All these vessels were always received as public ships of war in the ports of France, Spain, the Netherlands, Brazil, and other countries. "As to the Florida," said the Marquis d'Abrantes, the Foreign Minster of Brazil. writing to Mr. Webb on the 22d June, 1863, “the undersigned must begin by asking Mr. Webb's consent to observe that if the President of Pernambuco knew that that steamer was the consort of the Alabama, as was also the Georgia, it does not follow. as Mr. Webb otherwise argues, that the said President should consider the Florida as a pirate. According to the principles of the neutrality of the Empire, to which the undersigned has already alluded, all these vessels of the Confederate States are vessels of war, exhibiting the flag and bearing the commission of the said States, by which the Imperial Government recognized theur in the character of belligerents." 2 Upon the same footing the Shenandoah was delivered up to the United States, as public property, when she arrived at Liverpool after See Appendix to Case of the United States, vol. ii, pp. 486, 487, (Sumter ;) ibid., pp. 550, 551, (Nashville;) ibid., pp. 614, 633, and vol. i, p. 543, (Florida ;) vol. vi, p. 486, (Alàbama;) vol. ii, pp. 673, 680, 713, (Georgia ;) vol. iii, p. 332, &c., (Shenandoah;) also Mr. Benjamin's instructions, vol. i, pp. 621, 624. the conclusion of the war. And though the terms "pirates" and "privateers" have been freely applied to these vessels in many of the public and other documents of the United States, the former term was only used as a vituperative or argumentative expression, in aid of the objections of the United States to the recognition, by foreign Powers, of the belligerent character of the Confederates. Neither Captain Semmes, of the Alabama, nor any other officer or seaman engaged in the naval service of the Confederates, was ever, during the war or after its conclusion, actually treated as a pirate by any political or other author ity of the United States. And with respect to the denomination of "privateer," a privateer is a vessel employed by private persons, under letters of marque from a belligerent Power, to make captures at sea for their private benefit. None of the vessels in question, at any moment of their history, can be pretended to have had that character. CHAPTER III.-ON THE SPECIAL QUESTION OF SUPPLIES OF COAL TO CONFEDERATE VESSELS IN BRITISH PORTS. The next point which remains is that as to the supplies of coal in British ports to Confederate cruisers. ceived such supplies. That such supplies were afforded equally and impartially, so far as the regulations of the British Government and the inten- 1. Both parties in tions and voluntary acts of the British colonial authorities the war equally re are concerned, to both the contending parties in the war, and were obtained, upon the whole, very much more largely by the ships of war of the United States than by the Confederate cruisers, are facts which ought surely to be held conclusive against any argument of the United States against Great Britain founded on these supplies. That such arguments should be used at all can hardly be explained, unless by the circumstance that they are found in documents maintaining the propositions that the belligerent character of the Confederates ought never to have been recognized, and that impartial neutrality was itself, in this case, wrongful. Let those propositions be rejected, and their own repeated acts in taking advantage of such supplies (sometimes largely in excess of the limited quantities allowed by the British regulations) are conclusive proof that the United States never, during the war, held or acted upon the opinion that a neutral State, allowing coal to be obtained by the war-vessels of a belligerent in its ports, whether with or without any limitation of quantity, was guilty of a breach of neutrality or of any obligation of international law. That such supplies might be given, consistently with every hitherto recognized rule or principle of international law is abundantly clear.. Chancellor Kent, in his commentaries, first lays down the rule against using neutral territory as a base of warlike operations, as that rule had been understood and acted neutral territory as upon, both in Great Britain and in America: 2. Such supplies are not within the rule as to not using a base of operations. It is a violation of neutral territory 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 being beyond it. No use of neutral territory, for the purpose of war, can be permitted. This is the doctrine of the Government of the United States. It was declared judicially in England, in the case of the Twee Gebroeders; and, though it was not understood that the prohibitions extended to remote objects and uses, such as procuring provisions and other innocent articles, which the law of nations tolerated, yet it was explicitly declared that no proximate acts of war were in any manner to be allowed to originate on neutral ground. No act of hostility is to be commenced on neutral ground. No measure is to be taken that will lead to immediate violence. (Vol. i, page 115.) At page 120 he says: There is no exception to the rule, that every voluntary entrance into neutral territory, with hostile purposes, is absolutely unlawful. The neutral border must not be used as a shelter for making preparations to renew the attack; and, though the neutral is not obliged to refuse a passage and safety to the pursuing party, he ought to cause him to depart as soon as possible, and not permit him to lie by and watch his opportunity for further contest. This would be making the neutral country directly auxiliary to the war, and to the comfort and support of one party.” 1 Ortolan (Diplomatie de la Mer, vol. ii, p. 291) says: Le principe général de l'inviolabilité du territoire neutre exige aussi que l'emplo de ce territoire reste franc de toute mesure ou 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 lui 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 les mesures nécessaires 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. Again, at page 302: Si des forces navales belligérantes sont stationnées dans une baie, dans un fleuve, on à l'embouchure d'un fleuve, d'un État neutre, a 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 belligérant mouillé ou croisant dans les eaux neutres capture, au moyen de ses embarcations, un bâtiment qui se trouve en dehors des limites de ces 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 usoge pour des desseins hostiles n'est pas permis. 3. What is meant The above passages supply the obvious and sufficient explanation of the words "base of naval operations." Neutral territory is by the words "A base not to be used "in order to carry on hostile operations from of naval operations." thence," or "as a shelter for making preparations for attack:" (Kent.) No act of hostility is to commence or originate there. "Captures made by armed vessels stationed in a river of a neutral Power, or in the mouth of his rivers, or in harbors, for the purpose of exercising the rights of war from that river or harbor, are invalid;" (Phillimore.) It is not to be made a place "d'où les bâtiments de guerre surveillent les navires ennemis pour les poursuivre et les combattre et les capturer, lorsqu'ils sont parvenus au delà de la mer territoriale;" (Ortolan.) It is not to "servir de station aux bâtiments des Puissances belligé rantes;" (Heffter.) It is not to "servir à tendre des embûches à l'un des belligérants;" (Hautefeuille.) Belligerent vessels are not to station themselves or to cruise within it, in order to look out for enemies' ships, "encore qu'ils sortent de leur retraite pour aller les attaquer hors les limites de la juridiction neutre." (Ibid., and Pistoye et Duverdy.) The phrase now in question is a short expression of the principle that neutral territory is not to be used as a place from which operations of naval warfare are to be carried into effect; whether by single ships, or by ships combined in expeditions. It expresses an accepted rule of international law. Any jurist who might have been asked whether neutral ports or waters might be used as a base for naval operations, would have 1 See also Wheaton's "Elements," (Lawrence's edition,) p. 720; Phillimore, vol. ii, p. 452. 2 See also Heffter, (Bergson,) pp. 275, 276, 279; and Hautefeuille, vol. ii, p. 82; Calvo, "Derecho Internacional," ii; Pistoye et Duverdy, vol. i, p. 108. replied that they might not; and he would have understood the words. in the sense stated above. The above citations and references furnish at the same time the nec essary limitations under which the phrase is to be under- 4. What is not words. by those stood. None of these writers question-no writer of author- meant ity has ever questioned-that a belligerent cruiser might lawfully enter a neutral port, remain there, supply herself with provisions and other necessaries, repair damages sustained from wear and tear, or in battle, replace (if a sailing-ship) her sails and rigging, renew (if a steamer) her stock of fuel, or repair her engines, repair both her steaming and her sailing power, if capable (as almost all ships of war now are) of navigating under sail and under steam, and then issue forth to continue her cruise, or (like the Alabama at Cherbourg) to attack an enemy. "Ils y sont admis à s'y procurer les vivres nécessaires et à y faire les réparations indispensables pour reprendre la mer et se livrer de nouveau aur opérations de la guerre ;" (Ortolan; Heffter.) "Puis sortir librement pour aller livrer de nouveaux combats;" (Hautefeuille.) The connection be. tween the act done within the neutral territory and the hostile operation which is actually performed out of it, must (to be within the prohibition) be "proximate;" that is, they must be connected directly and immedi ately with one another. In a case where a cruiser uses a neutral port to lie in wait for an enemy, or as a station from whence she may seize upon passing ships, the connection is proximate. But where a cruiser has obtained provisions, sail-cloth, fuel, a new mast, or a new boilerplate in the neutral port, the connection between this and any subsequent capture she may make, is not "proximate," but (in the words of Lord Stowell, quoted by Kent, Wheaton, and other writers) "remote." The latter transaction is "universally tolerated;" the other universally forbidden. 5. Consequences of phrase base of ope It is evident that if this phrase, "base of operations," were to be taken in the wide and loose sense now contended for by the United States, it might be made to comprehend almost a lax use of the every possible case in which a belligerent cruiser had taken rations." advantage of the ordinary hospitalities of a neutral port. It would be in the power of any belligerent to extend it almost indefinitely, so as to fasten unexpected liabilities on the neutral. 6. Effect of the ad "renewal or augmen of military supplies or arms " Does it, then, make any difference that, in the second Rule of the Treaty of Washington, the prohibition of the use of neutral ports or waters as "the base of naval operations," by one dition of the words belligerent against the other, is combined with the further tation prohibition of "the renewal or augmentation of military supplies or arms?" So far from this, the context only makes the meaning of the former part of the Rule more clear. There can be no reasonable doubt as to what is meant by the words "renewal or augmentation of military supplies or arms.” At page 122 of his Commentaries, (vol. i,) Chancellor Kent says: 7. Doctrine of Chancellor Kent. The Government of the United States was warranted by the law and practice of nations, in the declarations made in 1793 of the rules of neutrality, which were particularly recognized as necessary to be observed by the belligerent Powers in their intercourse with this country. These rules were, that the original arming or equipping of vessels in our ports by any of the Powers at war for military service was unlawful, and no such vessel was entitled to an asylum in our ports. The equipment by them of Government vessels of war in matters which, if done to other vessels, would be applicable equally to commerce or war, was lawful. The equipment by them of vessels fitted for merchandise and war, and applicable to either, was lawful; but, if it were of a nature solely applicable to war, was unlawful. |