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The Rules of President Washington (August 4, 1793) speak for themselves. Some of them (as the 6th) clearly exceeded any Washington's Rules. obligation previously incumbent upon the United States by international law.
of 1793. and other
They were as follows:
1. The original arming and equipping of vessels in the ports of the United States by any of the belligerent parties for military service, offensive or defensive, is deemed unlawful.
2. Equipments of merchant-vessels by either of the belligerent parties in the ports of the United States, purely for the accommodation of them as such, is deemed lawful.
3. Equipments in the ports of the United States of vessels of war in the immediate service of the Government of any of the belligerent parties, which, if done to other vessels, would be of a doubtful nature, as being applicable either to commerce or war, are deemed lawful : except those which shall have made prize of the subjects, people, or property of France, coming with their prizes into the ports of the United States, pursuant to the seventeenth Article of our Treaty of Commerce with France.
4. Equipments in the ports of the United States, by any of the parties at war with France, of vessels fitted for merchandise and war, whether with or without commissions, which are doubtful in their nature as being applicable either to commerce or war, are deemed lawful, except those which shall have made prize, &c., (as before.)
5. Equipments of any of the vessels of France, in the ports of the United States, which are doubtful in their nature, as being applicable to commerce or war, are deemed lawful.
6. Equipments of every kind in the ports of the United States of privateers of the Powers at war with France are deemed unlawful.
7. Equipments of ressels in the ports of the United States which are of a nature solely adapted to war, are deemed unlawful, except those stranded or wrecked, as mentioned in the eighteenth Article of our Treaty with France, the sixteenth of our Treaty with the United Netherlands, the eighteenth of our Treaty with Prussia.
8. Vessels of either of the parties not armed, or armed previous to their coming into the ports of the United States, which shall not have infringed any of the foregoing rules, may lawfully engage or enlist their own subjects or citizens, not being inhabitants of the United States, except privateers of the Powers at war with France, and except those vessels which have made prizes, &c.
(Appendix to Report of Neutrality Laws Commission, page 23; British Appendix, vol. iii.)
There can be no question that under these principles and Rules, any amount whatever of coaling by a war-steamer of a belligerent Power in a neutral port was perfectly lawful.
Similar principles will be found in all the best authorities of interna tional law, applicable to the asylum and hospitality which the ships of war of a belligerent may receive in neutral ports without a violation of neutrality. Some of those authorities are referred to in the note at foot of this page.1
9. Acts of Con
In accordance with these principles, the Acts of Congress of 1794 and 1818 prohibited, in section 4 of the former, and section 5 of 1794 and the latter Act, the "increase or augmentation of the force of any ship of war, cruiser, or other armed vessel which, at the time of her arrival within the United States, was a ship of war, cruiser, or armed vessel in the service of any foreign Prince, &c., by adding to the number of the guns of such vessel, or by changing those on board of her for guns of larger caliber, or by the addition thereto of any equipment solely applicable to war."
In like manner the British Foreign-Enlistment Act of 1819, by section 8, prohibited the "increase or augmentation of the warlike Elistment Act of force of any ship or vessel of war, or cruiser, or other armed vessel, which, at the time of her arrival in any part of the
1 Ortolan, "Règles Internationales et Diplomatie de la Mer," (4th edition,) vol. ii, p. 286; Heffter, "Droit International," (Bergson's translation,) § 149, and note (2) on p. 276; Pando," Elem. del Derecho Internacional," § 192; Kent, "Commentaries,” vol. i, p. 118; Wheaton's "Elements," (Lawrence,) p. 720; Hautefeuille, "Droits et Devoirs des Nations neutres," vol. i, p. 347; Calvo, " Derecho Internacional," § 634; Twiss, "Law of Nations," vol. ii, p. 452.
United Kingdom or any of Her Majesty's dominions, was a ship of war, cruiser, or armed vessel in the service of any foreign Prince," &c., "by adding to the number of the guns of such vessel, or by changing those on board for other guns, or by the addition of any equipment for war."
11. Universal 'un
No person in either country ever imagined that these prohibitions would be infringed by allowing foreign belligerent steamvessels to coal ad libitum in ports of Great Britain or of the derstanding and United States. It is no more true that such vessels are specially enabled to continue their cruises and warlike operations, by means of supplies of coal so received, (however great in quantity,) than that sailing-ships of war are enabled to continue their cruises and warlike operations by substantial and extensive repairs in neutral ports to their hulls, masts, sails, and rigging, when damaged or disabled, or by unlimited supplies of water and other necessary provisions for their crews. It was not by Great Britain only, but equally by France, Brazil, and other countries, that this view as to supplies of coal to Confederate vessels in neutral ports was acted upon throughout the war. In the letter already quoted of the Brazilian Minister, Señor Taques, to Mr. Webb, on the subject of the Sumter, (9th December, 1861,) he wrote:
The hospitality, then, extended to the steamer Sumter at Maranham, in the terms in which it was presently afterwards given to the frigate Powhatan, involves no irregularity, reveals no dispositions offensive to the United States. It remains to know whether, in the exercise of this hospitality, the rights which restrict the commerce of neutrals with either belligerent were transgressed. This point involves the whole question, because Mr. Webb bases his argumentation and his complaints on the construction which he gives of contraband of war as to pit-coal. He insists strongly, as did his Consul, at Maranham, and Commodore Porter, on the idea that without coal the Sumter could not have continued her cruise. If this were a reason for forbidding the purchase of coal in the market, the States called Confederate would have the right to make the same complaint against the like permission presently afterwards given to the Powhatan; and if this reason could be brought forward in respect of coal, it could also be urged in respect of drinking-water and provisions, because without these none of these vessels could pursue their service. (British Appendix, vol. vi, p. 14.)
And he proceeded to show that coal was not, jure gentium, contraband of war.
Treaty on this
When, therefore, the second Rule of the Treaty of Washington speaks of a neutral Government being bound "not to permit or suffer either belligerent to make use of its ports or waters the recon Bu as the base of naval operations against the other, or for the point. purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men," it is no more intended to take away or limit the right of a neutral State to permit the coaling of steamers belonging to the war service of a belligerent within neutral waters, than to take away the right to permit them to receive provisions, or any other ordinary supplies, previously allowable under the known rules of international law.
13. British regula
With respect to the regulations made by the Queen of Great Britain on the 31st January, 1862, it is enough to say, that those regulations were voluntarily made by Her Majesty, in the tions of January 31, exercise of her own undoubted right and discretion, as au independent neutral Sovereign, and not by virtue of any antecedent international obligation; that no belligerent Power could claim, under those rules, any greater benefit against the other belligerent, than that the rules themselves should be acted upon without partiality towards either of the contending parties; that the limitation of the quantity of coal to be supplied to the ships of war of the belligerents, in British ports, by these rules, was not absolute and unqualified, but was subject.
to the exercise of a power given to the Executive Authorities of the various British possessions to enlarge that limit by special permission, when they should, in the exercise of a bona fide discretion, see cause to do so; and that these rules were, in fact, honestly and impartially acted upon by the British Government throughout the war, without any con nivance or sanction whatever, with or to any violation or evasion of them, even if such violation or evasion could have been shown (which it clearly could not) to be the direct or proximate cause of any belligerent operation, resulting in loss to the Government or citizens of the United States.
CHAPTER IV.-PRINCIPLES OF CONSTRUCTION APPLICABLE TO THE RULES OF THE TREATY.
1. Importance of
questions, as to the
struction applicable to the three Rules.
The two questions last considered (that of the supposed obligation of Great Britain, under the First Rule, to seize or detain such the second and third vessels as the Alabama or the Florida, when they came into principles of con. British ports as duly commissioned public ships of war of the Confederate States, and as to her supposed obligation, under the Second Rule, either not to permit at all, or by an exact supervision to limit, the coaling of Confederate steam-vessels of war in British ports) involve points of such grave importance as to the principles of construction to be applied to those Rules for the purpose of the present controversy, that some further general observations on that subject seem to be imperatively called for.
Among the rules for the interpretation of Treaties, laid down by Vat2. Rules for the tel, (Articles 262-310,) are found the following:
public conventions (1.) Since the lawful interpretation of a contract ought to tend only to the discovery of the thoughts of the author or authors of that contract, as soon as we meet with any obscurity we should seek for what was probably in the thoughts of those who drew it up and interpret it accordingly. This is the general rule of all interpretations. It particularly serves to fix the sense of certain expressions the signification of which is not sufficiently determined. In virtue of this rule we should take those expressions in the most extensive sense, when it is probable that he who speaks has had in his view everything pointed out in this extensive sense; and, on the contrary, we ought to confine the signification, if it appears that the author has bounded his thoughts by what is comprehended in the more limited sense. (Art. 270.)
(2.) In the interpretation of treaties, pacts, and promises, we ought not to deviate from the common use of the language; at least if we have not very strong reasons for it. In all human affairs, where there is a want of certainty, we ought to follow probability. It is commonly very probable that they have spoken according to custom; this always forms a very strong presumption, which cannot be surmounted but by a contrary presumption that is still stronger. (Art. 271.)
(3.) Words are only designed to express the thoughts; thus the true signification of an expression in common use is the idea which custom has affixed to that expression. It is, then, a gross quibble to affix a particular sense to a word in order to elude the true sense of the entire expression.
(4.) When we manifestly see what is the sense that agrees with the intention of the Contracting Powers it is not permitted to turn their words to a contrary meaning. The intention, sufficiently known, furnishes the true matter of the Convention, of what is perceived and accepted, demanded and granted. To violate the Treaty is to go contrary to the intention, sufficiently manifested, rather than against the terms in which it is conceived; for the terms are nothing without the intention that ought to dictate them. (Art. 274.)
(5.) We ought always to give to expressions the sense most suitable to the subject or to the matter to which they relate. For we endeavor, by a true interpretation, to discover the thoughts of those who speak or of the Contracting Powers in a Treaty. Now, it ought to be presumed that he who has employed a word capable of many different significations has taken it in that which agrees with the subject. In proportion as he employs himself on the matter in question the terms proper to express his thoughts present themselves to his mind. This equivocal word could, then, only offer
itself in the sense proper to express the thought of him who makes use of it; that is, in the sense agreeable to the subject. (Art. 280.)
(6.) Every interpretation that leads to an absurdity ought to be rejected; or, in other words, we should not give to any piece a sense from which follows anything absurd, but interpret it in such a manner as to avoid absurdity. As it cannot be presumed that any one desires what is absurd, it cannot be supposed that he who speaks has intended that his words should be understood in a sense from which that absurdity follows. Neither is it allowable to presume that he sports with a serious act; for what is shameful and unlawful is not to be presumed. We call absurd not only that which is physically impossible, but what is morally so; that is, what is so contrary to right reason that it cannot be attributed to a man in his right senses.
The rule we have just mentioned is absolutely necessary, and ought to be followed, even when there is neither obscurity nor anything equivocal in the text of the law or the Treaty itself. For it must be observed that the uncertainty of the sense that ought to be given to a law or a Treaty does not merely proceed from the obscurity or any other fault in the expression, but also from the narrow limits of the human mind, which cannot foresee all cases and circumstances, nor include all consequences of what is appointed or promised; in short, from the impossibility of entering into this immense detail. We can only make laws or Treaties in a general manner; and the interpretation ought to apply them to particular cases, conformably to the intention of the legislature or of the Contracting Powers. Now, it cannot be presumed that in any case they would lead to anything absurd. When, therefore, their expressions, if taken in their proper and ordinary sense, lead to it, it is necessary to turn them from that sense just so far as is sufficient to avoid absurdity. (Art. 282.)
(7.) If he who has expressed himself in an obscure or equivocal manner has spoken elsewhere more clearly on the same subject, he is the best interpreter of himself. We ought to interpret his obscure or vague expressions in such a manner that they may agree with those terms that are clear and without ambiguity which he has used elsewhere, either in the same Treaty or in some other of the like kind. In fact, while we have no proof that a man has changed his mind or manner of thinking, it is presumed that his thoughts have been the same on the same occasions; so that if he has anywhere clearly shown his intention with respect to anything, we ought to give the same sense to what he has elsewhere said obscurely on the same affair. (Art. 284.) (8.) Frequently, in order to abridge, people express imperfectly, and with some obscurity, what they suppose is sufficiently elucidated by the things which preceded it, or even what they propose to explain afterward; and besides, the expressions have a force, and sometimes even an entirely different signification, according to the occasion, their connection, and their relation to other words. The connection and train of the discourse is also another source of interpretation. We ought to consider the whole discourse together, in order perfectly to conceive the sense of it, and to give to each expression, not so much the signification it may receive in itself, as that it ought to have from the thread and spirit of the discourse. (Art. 285.)
(9.) The reason of the law or the Treaty, that is, the motive which led to the making of it, and the view there proposed, is one of the most certain means of establishing the true sense; and great attention ought to be paid it, whenever it is required to explain an obscure, equivocal, and undetermined point, either of law or of a Treaty, or to make an application of them to a particular case. (Art. 287.)
(10.) We use the restrictive interpretation to avoid falling into an absurdity. * The same method of interpretation takes place, when a case is presented, in which the law or Treaty, according to the rigor of the terms, leads to something unlawful. This exception must then be made; since nobody can promise to ordain what is unlawful. (Art. 293.)
(11.) When a case arises, in which it would be too prejudicial to any one to take a law or promise according to the rigor of the terms, a restrictive interpretation is also then used; and we except the case, agreeably to the intention of the legislature, or of him who made the promise. For the legislature requires only what is just and equitable; and in contracts no one can engage in favor of another, in such a manner as to be essentially wanting to himself. It is then presumed, with reason, that neither the legislature, nor the Contracting Powers, have intended to extend their regulation to cases of this nature; and that they themselves would have excepted them, had these cases presented themselves. (Art. 294.)
3. Applications of these principles to
to the points in con
Let us apply these principles to the interpretation of the Rules of the present Treaty. The British interpretation of the latter part of the first Rule, which makes it applicable only to the pre- the interpretation of vention of the departure from British jurisdiction of vessels the three Rules, as over which British jurisdiction had never ceased or been troversy. displaced, and whose warlike character rests only in an (as yet) unexecuted intention or purpose, is agreeable to the fifth, sixth, eighth, ninth, and tenth of the foregoing principles. The American interpretation,
which would extend it to vessels coming, as public ships of war of the Confederates, into British waters, without any notice beforehand that they would be either excluded or detained, is opposed to the same principles in the most marked manner, and especially it is opposed to those numbered 6 and 10, which are, perhaps, the most cogent and undeniable of them all.
The British interpretation of the first part of the second Rule, which applies the phrase "base of naval operations" in the same sense iu which it has always been used by the leading authorities on international law, and particularly by those of Great Britain and the United States, (e. g., by Lord Stowell and Chancellor Kent,) is in accordance with the second, third, and seventh of these principles; while the American interpretation, which would extend it to every combination of circumstances which those words, in their most lax, popular, and unscientific acceptation could possibly be made to embrace, offends against the same, and also against the tenth principle.
The British interpretation of the words "the renewal or augmentation of military supplies or arms," in the latter part of the second Rule. which applies them to augmentations of the warlike force of belligerent vessels, the same, or ejusdem generis, with those which were forbidden by President Washington's Rules, and by the British and American Foreign-Enlistment Acts, is in harmony with the second, third, fifth, seventh, eighth, and ninth of the foregoing principles. The American interpretation, which would extend them to supplies of articles, such as coals, which, according to the doctrine and practice of asylum and hospitality hitherto recognized and acted upon by all civilized nations, (notably by Great Britain and the United States,) were never yet deemed unlawful, and from the supply of which, in neutral ports, it would be highly prejudicial to two great maritime Powers, such as the two Contracting Parties, to debar themselves in case of their being engaged in war, in the present days of steam navigation, offends against the same principles, and also against that numbered 11.
4. Influence on the construction of the retrospective terms
The force of these objections to the American interpretation of the three Rules is greatly increased when it is borne in mind. first, that Great Britain agreed to their being retrospectof the agreement. ively applied to the decision of "the questions between the two countries arising out of the claims mentioned in Article I" of the Treaty, those being the claims "growing out of acts committed by the several vessels which had given rise to the claims generically known as the Alabama Claims."
Down to the date of the Treaty no claim had ever been made against Great Britain, on the specific ground of supplies of coal to Confederate vessels; every claim for captures, of which any intelligible notice had been given, was in respect of captures by ships, said to have been equipped and fitted out in British ports, or to have received their armaments by means directly supplied from Great Britain. The British Government, therefore, was warranted in believing, as it did believe, that the controversy between itself and the Government of the United States was confined to claims growing out of acts committed by ships of this description only; and, in agreeing to the terms of the Rule, it could not be supposed to have had any claims in view which were grounded only on supplies of coal to Confederate vessels. A retrospective engagement of this sort cannot, without a complete departure. from all the principles of justice, be enlarged by any uncertain or unnecessary implication.
The United States have expressly declared, in their Case, that they consider all the Rules-of course, therefore, the second-to be coinci