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impose aussi à ce même état neutre une étroite obligation, celle de ne pas permettre, celle d'empêcher, activement au besoin, l'emploi de ce territoire par une des parties ou au profit de l'une des parties belligérantes dans un but hostile à l'autre partie.
And this very question, the distinction between an armed vessel and an unarmed vessel, was met by Lord Westbury, in observations made by him, and which are quoted in the American Case at page 185. said:
There was one rule of conduct which undoubtedly civilized nations had agreed to observe, and it was that the territory of a neutral should not be the base of military operations by one of two belligerents against the other. In speaking of the base of operations, he must, to a certain degree, differ from the noble earl, (Earl Russell.) It was not a question whether armed ships had actually left our shores; but it was a question whether 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 neutraltiy.
Chancellor Kent, in a passage cited by the learned Counsel with approval, speaking of the action of the United States as shown in the rules of President Washington's administration, (which rules are also subsequently quoted with approval in this Argument,) says, (vol. i, page 122 :)
The Government of the United States was warranted by the law and practice of nations, in the declaration 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 ressels in our ports by any of the powers at war, for military service, was unlawful; and no such ressel was entitled to an asylum in our ports.
No vessel thus equipped was entitled to an asylum in the ports of the nation whose neutrality had been violated. The Tribunal will not fail to observe that these principles were applied by President Washington to cruisers even of an independent nation, recognized as a sovereign. It was the cruisers of France that were under consideration. But the propositions of this special argument, and the course actually pursued by Great Britain in according its homage to their flag, placed these insurgent cruisers on a much higher and more inviolable position than it is possible to concede to cruisers of a recognized sovereign. In truth, such treatment accorded to such cruisers all the irresponsibility of pirates, and all the sanctity of public ships of a recognized sovereignty. It accorded the irresponsibility of pirates, because they were exempted from all control, and there was no Government behind them to be made responsible for them, to be resorted to for their correction or restraint, and to meet the resentments of the offended neutrals in the shape of non-intercourse, of reprisals, or of war.
The action of Great Britain, under this doctrine of comity and notice, as applied to the cruisers of this belligerency, really exempted them, from the beginning to the end of their careers on the ocean, from all responsibility whatever. How long could such conduct toward Great Britain, in violation of her neutrality, as was practiced by this belligerent, how long could such violations of the neutrality of Great Britain have been exercised by belligerent France without remonstrance, and if that remonstrance were unheeded, without reprisals, followed finally by war? Why was not such recourse taken in respect to these cruisers, to the power behind them? There was no power behind them.
I ask, also, in this connection, attention to 1 Phillimore, pp. 399 to 404, and, especially, to a passage extracted from the case of the Santissima Trinidad, commenting upon the case of the Exchange, which last case is cited at considerable length in the argument of the eminent Counsel.
Now the Exchange settles nothing, except that when the political authority of a Government has recognized belligerency, the courts will not exercise jurisdiction over the vessels although sovereignty has not been conceded as well.
The only case in the history of our country in which the political authority was called upon to deal with a cruiser that had derived its origin in violation of our neutrality was the case of a public ship of France, the Cassius, originally Les Jumeaux. The legal report of this case is copied in full in the Appendix of the British Case. It never came to any other determination than that France, the recognized Government of France, was the sponsor for the Cassius, and it was on the respect shown to a sovereign as well as a public belligerent that the disposition of the case, exempting the vessel from judicial process, was made.
Sir ROUNDELL PALMER. "The vessel was restored."
Mr. EVARTS. But it was only after her character as a war-vessel had ceased.
Sir ROUNDELL PALMER. "It was the Government of the United States, by its executive power, that directed the ship to be restored."
Mr. EVARTS. A detailed history of this case, legal and political, will be found in vol. vii of the American Appendix, pp. 18 to 23, in Mr. Dana's valuable note.
It will there be seen that the occasion for our Government to determine its political or executive action never arose until after the determination of the judicial proceedings and until after the vessel had been thrown up by the French Minister, who abandoned her to the United States Government, nor until after she was a worthless hulk.
Sir ROUNDELL PALMER. "Am I not right in saying that the President of the Executive Government of the United States gave notice to the French Minister that the ship was at his disposal?"
Mr. EVARTS. After it had been abandoned, after it had ceased to be a cruiser capable of hostilities, and after the opportunity for its further hostilities had ceased.
Lord TENTERDEN. "But the war still continued."
Mr. EVARTS. But, I mean, after the hostilities of that vessel came to an end.
And permit me to say that this condition of things between the United States and France, during the administration of the first President Adams, came substantially to a war between the two countries.1
1A passage from Mr. Dana's note, already referred to, puts this matter in a very clear light.
As the Cassius was taken into judicial custody, within twenty-four hours of her arrival, and remained in that custody until after she had been disarmed and dismantled by the French Minister, and formally abandoned by him to the United States Government with a reclamation for damages, the political department of the United States Government never had practically before it the question, what it would do with an armed foreign vessel of war within its control, which had, on a previous voyage, before it became a vessel of war, and while it was a private vessel of French citizens, added warlike equipments to itself within our ports, in violation of our statutes for the preservation of our neutrality. When it came out of judicial custody, it was a stripped, deteriorated, and abandoned hulk, and was sold as such by public auction, The only political action of our Government consisted in this: It refused to interfere to take the vessel from the custody of the judiciary, but instructed its attorney to see that the fact of its being a bona fide vessel of war be proved and brought to the attention of the court, with a motion for its discharge from arrest on the ground of its exemption as a public ship, if it turned out to be so. What course the Executive would have taken as to the vessel, if it had passed out of judicial custody before it was abandoned and dismantled, does not, of course, appear. And that is the only question of interest to international law.-VII American Appendix, p. 23; Choix de Pieces, etc., t. ii, p. 726,
The applicability of
gia and the Shenan
Now, it is said that the application of this second clause of the first Rule of the Treaty, and this demand that detention or exthe rule to the Geor-clusion shall be exercised in respect to cruisers on their subsequent visits to ports, do not apply either to the Georgia or Shenandoah, because neither the Georgia nor the Shenandoah received their original outfit by violation of the territory of Great Britain, not even in the view of what would be such a violation taken by the United States. I understand that to be the position. I will not discuss the facts of the Georgia and Shenandoah any more than of any other vessel in this regard. If the Shenandoah and Georgia, in the conclusions that you shall arrive at upon the facts concerning their outfit, shall be pronounced in their original evasion not to involve culpability on the part of Great Britain, and not to involve violation of Great Britain's territory on the part of either of these cruisers
Sir ALEXANDER COCKBURN. "Suppose, Mr. Evarts, that the departure was of such a nature as not to involve Great Britain in any culpability, for want of due diligence, still there certainly is a violation of territory.” Mr. EVARTS. That is the point I was coming to, and of that I entertain no doubt.
You must find upon the facts that there was no evasion from the ports of Great Britain by either of those vessels under circumstances amounting to a violation of the neutrality of Great Britain (on the part of the vessels and on the part of those who set them forth) before you bring them into the situation where the resentment for a violation of neutrality, which I have insisted upon, was not required to be exhibited.
I am not, however, here to discuss the questions of fact.
I will take up what is made the subject of the third chapter of the special argument, which has reference to coaling and "the base of naval operations" and "military supplies," as prohibited. by the second Rule of the Treaty.
The question of "coaling" is one question considered simply under the law of hospitality or asylum to belligerent vessels in coaling is a branch of neutral ports, and quite another considered, under given
The question of
the greater question
of the use of British facts and circumstances, as an element in the prescribed
ports as bases of operations.
use of neutral ports as "a base of naval operations."
At the outset of the discussion of this subject it is said that the British Government dealt fairly and impartially in this matter of coaling with the vessels of the two belligerents, and that the real complaint on the part of the United States is of the neutrality which Great Britain had chosen to assume for such impartial dealing between the two bel ligerents. If that were our complaint it is, certainly, out of place in this controversy, for we are dealing with the conduct of Great Britain in the situation produced by the Queen's Proclamation, and there is here no room for discussion of any grievance on the part of the United States from the public act of Great Britain in issuing that Proclamation. But nothing in the conduct of the argument on our part justifies this suggestion of the eminent Counsel.
On the subject of "coaling," it is said that it is not, of itself, a supply of contraband of war or of military aid. Not of itself. The grounds and occasions on which we complain of coaling, and the question of fact, whether it has been fairly dealt out as between the belligerents, connect themselves with the larger subject, (which is so fully discussed under this head by the eminent Counsel,) a topic of discussion of which coaling is merely a branch, that is to say, the use of neutral ports and waters for coaling, victualing, repairs, supplies of sails, recruitment of men for navigation, et cet. These may or may not be obnoxious to censure under
the law of nations according as they have relation or not with facts and acts which, collectively, make up the use of the neutral ports and waters as "the bases of naval operations" by belligerents. Accordingly, the argument of the eminent Counsel does not stop with so easy a disposi tion of the subject of coaling, but proceeds to discuss the whole question of base of operations-what it means, what it does not mean, the inconvenience of a loose extension of its meaning; the habit of the United States in dealing with the question both in acts of Government and the practice of its cruisers; the understanding of other nations, giving the instances arising on the correspondence with Brazil on the subject of the Sumter; and produces as a result of this inquiry the conclusion, that it was not the intention of the second Rule of the Treaty to limit the right of asylum.
In regard to the special treatment of this subject of coaling provided by the Regulations established by the British Government in 1862, it is urged that they were voluntary regulations, that the essence of them was that they should be fairly administered between the parties, and that the rights of asylum or hospitality in this regard should not be exceeded. Now, this brings up the whole question, the use of neutral ports or waters as a "base of naval operations" which is proscribed by the second Rule of the Treaty.
Yon will observe that while the first Rule applies itself wholly to the particular subject of the illegal outfit of a vessel which the neutral had reasonable ground to believe was to be employed to cruise, et cet., or to the detention in port of a vessel that was in whole or in part adapted for war-while the injunction and duty of the first Rule are thus limited, and the violation of it, and the responsibility consequent upon such violation, are restricted to those narrow subjects, the proscription of the second Rule is as extensive as the general subject, under the law of nations, of the use of ports and waters of the neutral as the basis of naval operations, or for the renewal or augmentation of military supplies, or the recruitment of men.
What, then, is the doctrine of hospitality or asylum, and what is the doctrine which prohibits the use (under cover of asylum, The doctrine of under cover of hospitality, or otherwise) of neutral ports and asylum considered. waters as bases of naval operations? It all rests upon the principle that, while a certain degree of protection or refuge, and a certain peaceful and innocent aid, under the stress to which maritime voyages are exposed, are not to be denied, and are not to be impeached as unlawful, yet anything that under its circumstances and in its character is the use of a port or of waters for naval operations is proscribed although it may take the guise, much more if it be an abuse, of the privilege of asylum or hospitality.
There is no difference in principle, in morality, or in duty, between neutrality on land and neutrality at sea. What, then, are the familiar rules of neutrality within the territory of a neutral, in respect to land warfare?
tral on land and his
Whenever stress of the enemy, or misfortune, or cowardice, or seeking an advantage of refreshment, carries or drives one of Analogy between the belligerents or any part of his forces over the frontier the duties of a neuinto the neutral territory, what is the duty of the neutral? duties at sea. It is to disarm the forces and send them into the interior till the war is over. There is to be no practicing with this question of neutral territory. The refugees are not compelled by the neutral to face their enemy; they are not delivered up as prisoners of war; they are not surrendered to the immediate stress of war from which they sought
refuge. But from the moment that they come within neutral territory they are to become non-combatants, and they are to end their relations to the war. There are familiar examples of this in the recent history of Europe.
What is the doctrine of the law of nations in regard to asylum, or refuge, or hospitality, in reference to belligerents at sea during war? The words themselves sufficiently indicate it. The French equivalent of "relâche forcée" equally describes the only situation in which a neutral recognizes the right of asylum and refuge; not in the sense of shipwreck, I agree, but in the sense in which the circumstances of ordinary navigable capacity to keep the seas, for the purposes of the voyage and the maintenance of the cruise, render the resort of a vessel to a port or ports suitable to, and convenient for, their navigation, under actual and bona fide circumstances requiring refuge and asylum.
There is another topic which needs to be adverted to before I apply the argument. I mean the distinction between commercial dealing in the uncombined materials of war and the contribution of such uncombined materials of war, in the service of a belligerent, in making up military and naval operations, by the use of neutral territory as the base of those contributions. 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, mere commercial transactions in contraband of war.
Limitation of the right of cominercial dealings 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?"
Mr. EVARTS. I will even go further than that and say that commercial 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 hostile act. But whenever the neutral
Use of a neutral port of
tile operations: 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.
The argument upon the other side is that the meaning of "the base of operations," as it has been understood in authorities relied upon by both nations, does not permit the resort to such neutral ports and waters for the purpose of specific hostile acts, but proceeds no further. The illustrative instances given by Lord Stowell or by Chancellor Kent in support of the rule are adduced as being the measure of the rule. These examples are of this nature: A vessel cannot make an ambush