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for itself in neutral waters, cannot lie at the mouth of a neutral river to sally out to seize its prey, cannot lie within neutral waters and send its boats to make captures outside their limits. All these things are proscribed. But they are given as instances, not of flagrant, but of incidental and limited use. They are the cases that the commentators cite to show that even casual, temporary, and limited experiments of this kind are not allowed, and that they are followed by all the definite consequences of an offense to neutrality and of displeasure to a neutral, to wit, the resort by such neutral power to the necessary methods to punish and redress these violations of neutral territory.
Now let us see how we may, by examples, contrast the asylum or hospitality in matter of coal or similar contributions in aid of navigable capacity, with the use of neutral ports as a base of naval operations.
In the case of the
I will not trespass upon a discussion of questions of fact. The facts are wholly within your judgment, and are not embraced in the present argument. But take the coaling of the Nash- Nashville. ville. The Nashville left Charleston under circumstances not in dispute, and I am not now considering whether Great Britain is or is not responsible in reference to that ship in any other matter than that of coaling, which I will immediately introduce to your attention.
The Nashville having a project of a voyage from Charleston, her home port, to Great Britain, in the course of which she proposed to make such captures as might be, intended originally to carry out Mason and Slidell, but abandoned this last intention before sailing, as exposing these Commissioners to unfavorable hazard from the blockading squadron. This was the project of her voyage, those the naval operations which she proposed to herself. How did she prepare within her own territory, to execute that project of naval warfare? She relied substantially upon steam, and in order to be sure of going over the bar, under circumstances which might give the best chance of eluding the vigilance of the blockaders, she took only two days' supply of coal, which would carry her to Bermuda. The coal was exhausted when she got there; she there took in six hundred tons.
Sir ALEXANDER COCKBURN. "I believe, Mr. Evarts, that the figuresix afterward came down to five."
Mr. EVARTS. For the purpose of my present argument, it is quite immaterial.
Mr. WAITE. "It was subsequently proved to be four hundred and fifty tons."
Mr. EVARTS. Very well. She had no coal, and she took four hundred and fifty tons or more on board to execute the naval operation which she projected when she left Charleston and did not take the means to accomplish, but relied upon getting them in a neutrel port to enable her to pursue her cruise. Now, the doctrine of relâche forcée, or of refuge, or of asylum, or of hospitality, has nothing to do with a transaction of that kind. The vessel comes out of a port of safety at home, with a supply from the resources of the belligerent that will only carry it to a neutral port, to take in there the means of accomplishing its projected naval operations. And no system of relief in distress, or of allowing supply of the means of taking the seas for a voyage interrupted by the exhaustion of the resources originally provided, have anything to do with a case of this kind. It was a deliberate plan, when the naval operation was meditated and concluded upon, to use the neutral port as a base of naval operations, which plan was carried out by the actual use of neutral territory as proposed.
Now we say, that if this Tribunal, upon the facts of that case, shall
find that this neutral port of Bermuda was planned and used as the base of the naval operations, projected at the start of the vessel from Charleston, that that is the use of a neutral port as a base for naval operations. On what principle is it not? It is true that the distance of the projected naval operation, or its continuance, makes a difference in prin ciple as to the resort to establish a base in neutral territory or to obtain supplies from such a base? Why, certainly not. Why, that would be to proscribe the slight and comparatively harmless abuses of neutral territory, and to permit the bold, impudent, and permanent application of neutral territory to belligerent operations. I will not delay any further upon this illustration.
Let us take next the case of the Shenandoah, separating it from any In the case of the inquiries as to culpable escape or evasion from the original Shenandoah. port of Liverpool. The project of the Shenandoah's voyage is known. It was formed within the Confederate territory. It was that the vessel should be armed and supplied, that she should make a circuit, passing round Cape Horn or the Cape of Good Hope, that she should put herself on reaching the proper longitude in a position to pursue her cruise to the Arctic Ocean, there to make a prey of the whaling fleet of the United States. To break up these whaling operations and destroy the fleet was planned under motives and for advantages which seemed to that belligerent to justify the expense, and risk, and perils of the undertaking. That is the naval operation, and all that was done inside the belligerent territory was to form the project of the naval operation and to communicate authority to execute it to the officers who were outside of that territory.
Now, either the Shenandoah, if she was to be obtained, prepared, armed, furnished, and coaled for that extensive naval operation, was to have no base for it at all, or it was to find a base for it in neutral ports.
It is not a phantom ship, and it must have a base. Accordingly, as matter of fact, all that went to make up the execution of that operation of maritime war was derived from the neutral ports of Great Britain. The ship was thence delivered and sallied forth
Sir ALEXANDER COCKBURN. "But that was not known to the Government."
Mr. EVARTS. I am now only showing that this occurred as matter of fact. The question whether it was known to or permitted by the Government of Great Britain, as the Chief Justice suggests, is of an entirely rent aspect, involving the considerations of due diligence to prevent. The ship, then, was furnished from neutral ports and waters. It resorted to Madeira to await the arrival of the Laurel, which, by concert and employment in advance of the sailing of the Shenandoah, was to take the armament, munitions of war, officers, and a part of the crew to complete the Shenandoah's fitness to take the seas as a ship of war to execute the naval project on which she originally sailed, and which were transferred from ship to ship at sea. The island of Madeira served only as rendezvous for the two vessels, and if there had been occasion, as in fact there was not, might have furnished shelter from storms. Thus made a fighting-ship from these neutral ports, as a base, and furnished from the same base with the complete material for the naval operation projected, the Shenandoah made captures, as without interruption of her main project she might, rounded the Cape of Good Hope and came to Melbourne, another British port, whence she was to take her last departure for her distant field of operations, the waters of the whaling fleet of the United States in the Arctic Ocean.
Sir ROUNDELL PALMER. "I did not, Mr. Evarts, enter upon a treatment of each of the vessels."
Mr. EVARTS. I am only showing that this ship did use your ports for the purposes of its operations.
Sir ROUNDELL PALMER. "But, Mr. Evarts, I only mentioned these vessels."
Mr. EVARTS. You discussed the question of base of naval operations. There she obtained as matter of fact four hundred and fifty tons of coal, or something of that kind, and forty men, and without both of these, as well as important repairs of her machinery, she could not have carried out the naval project on which she had started. The coal taken at Melbourne was sent by appointment from Liverpool, and was there to complete her refitment. The naval operation would have failed if the vessel had not received the replenishment of power and resources at Melbourne as a base. Now, this Shenandoah was able to sail sixteen knots an hour.
ALEXANDER COCKBURN. "Do you mean to say sixteen knots an hour? That is faster than any vessel I have ever heard of."
Mr. EVARTS. Well, we will not dispute about the facts. There is no doubt, however, that it is so-she sailed on one occasion over three hundred and twenty miles in twenty-four hours.
Lord TENTERDEN. "But that is not sixteen knots an hour."
Mr. EVARTS. I have not said that she had sailed twenty-four consecutive hours at the rate of sixteen knots. But she could sail sixteen knots an hour, and she could only steam ten knots an hour. I have not invented this. Her remarkable qualities are stated in the proofs. Her steam-power was not necessary to her navigation or her speed, however, except to provide against calms, and give assurance of constancy of progress in adverse weather. Her great advantage, however, was in being one of the fastest sailing ships ever built. The great importance of her having abundance of coal at the contemplated scene of her naval operations was, that she might capture these poor whalers, who understood those perilous seas, and if they could only get up steerage way, would be able to elude her.
Sir ALEXANDER COCKBURN. "What! if she sailed sixteen knots an hour!"
Mr. EVARTS. If the Chief Justice will mark the circumstances of Arctic navigation, he will understand that, by means of their knowledge of the ice and the region generally, they could seek shelter by interposing barriers between themselves and their pursuer. They did, however, become her prey; but it was only when she found them becalmed. Now, this case of the Shenandoah illustrates by its career, on a large scale, the project of a belligerent in maritime war, which sets forth a vessel and furnishes it complete for war, plans its naval operations and executes them, and all this from neutral ports and waters as the only base, and as a sufficient base. Melbourne was the only port from which the Shenandoah received anything after its first supply from the home ports of Great Britain, and it finally accomplished the main operation of its naval warfare by means of the coaling and other refitment at Melbourne. Whether it could rely for the origin of its naval power, and for the means of accomplishing its naval warfare, upon the use of neutral ports and waters, under the cover of commercial dealings in contraband of war, and under the cover of the privilege of asylum, was the question which it proposed to itself, and which it answered for itself. It is under the application of these principles that the case of the Shenandoah is supposed to be protected from being a violation of the law of nations,
which prohibits the use of ports and waters of a neutral as a base of naval operations. I do not propose to argue upon the facts of the case of the Shenandoah, but only to submit the principles on which they are to be considered.
Sir ALEXANDER COCKBURN. "I would like to ask you, Mr. Evarts, whether your proposition involves this: That every time a belligerent steam-vessel puts into a neutral port for the purpose of getting coal, and then goes forward upon her further object of war, that there is a violation of neutral territory. I just want to draw your attention to this point. What I want to understand is, what difference there is between the ships of one nation and the ships of another nation, as regards this matter of coal. Would the principle of your argument apply to the vessels of other belligerents?"
Mr. EVARTS. Of course it is to be applied to all belligerents; and when the case arises for complaint, it is to be judged in view of all the facts and circumstances, whether it falls within the license of hospitality, or whether it is a resort as to a base of operations—that is to say, whether the whole transaction, in all its features, amounts to a concerted and planned use.
Sir ALEXANDER COCKBURN. "Planned by whom?"
Sir ALEXANDER COCKBURN. "A ship goes into a neutral port without intimating its purpose or disclosing whether it belongs to one bellig erent or another."
Mr. EVARTS. Take the case of the Nashville.
Lord TENTERDEN. "Take the Vanderbilt."
Sir ALEXANDER COCKBURN. "Well, let us take that case. She goes into a neutral port, and wants coal for the purpose of going forth again on her mission of war; no question is asked. The ship, I grant you, comes with the object of getting coal for the purpose of going out on her errand of war, and, in one sense, uses neutral territory as a base. But the neutral knows nothing about the course of the vessel or its destination, except he takes it for granted it is a ship of war. How can he be said to allow the territory to be made a base of operations, except so far as it applies to the ships of a belligerent?”
Mr. EVARTS. It does apply, but I have not said that this alone rendered the neutral responsible; I have merely laid down the
The of the
use of the neutral facts. The magnitude of the operations, and the complete
port as a base of op
erations being estab-ness of their relations to the base of supplies, do not alter
lished, there rematas
the inquiry whether the application of principles. After all there is left, of
the neutral did or did
gence to prevent it.
not exercise due dili- course, the question of whether you have suffered or allowed these things, or have used due diligence to prevent them, and upon the discussion of that subject I shall not trespass.
Sir ALEXANDER COCKBURN. "But that is the very question." Mr. EVARTS. But that question could not arise until it was determined whether the belligerent had, as matter of fact, made the neutral port a base of operations. All that I have said has been intended to show that what was done by these cruisers did make the neutral ports a base, just as much as if a shallop was stationed at the mouth of a neutral river, and sent out a boat to commit hostilities. In either case, the neutral is not responsible, unless it has failed to exercise due diligence. But there is this further consequence carrying responsibility, that when the neutral does not know of such an act until after it has been committed, it is its duty to resent it and to prevent its repetition, and to deny hospitality to the vessels that have consummated it. Now, these questions can certainly be kept distinct. If the fact is not known, and if there is no
want of due diligence, then the neutral is not in fault; if the facts are afterward known, then the cruiser that has committed the violation of neutrality is to be proscribed, to be denied hospitality, to be detained in port, or excluded from port, after notice, or without notice, as the case may be.
The question then arises whether a nation thus dealt with by a belligerent, and having the power to stop the course of naval operations thus based, if it purposely omits so to do, does not make itself responsible for their continuance. I do not desire to be drawn into a discussion upon the facts which are not included in the range of the present argument. I now am simply endeavoring to show that the illustrations of Kent and Stowell, taken from navigation and maritime war then prevailing, do not furnish the rule or the limit of the responsibility of neutrals in respect of allowing such use of naval bases, nor of the circumstances which make up the prohibited uses of neutral ports for such bases.
I proceed to another branch of the subject.'
It is said that the concerted setting forth of the Laurel from the neutral port, to carry the armament and the munitions of war and the officers and the crew to be combined outside the neutral jurisdiction with the Shenandoah, already issued from another port of the same neutral, is only a dealing in contraband of war. I deny that such a transaction has any connection with dealing in contraband of war. It is a direct obtaining by a projected cruiser of its supply of armament, munitions, and men and officers from a neutral port.
Such proceedings are not mere dealing in contraband of war.
There may be no fault on the part of the neutral in not preventing it. That will depend on the question of "due diligence to prevent," "reasonable ground to believe," &c., &c. But the principle of contraband of war does not protect such a transaction, and that is the only principle that has been appealed to by the British Government in the discussions of this matter to justify it. The facts of this vessel going out were known
Sir ALEXANDER COCKBURN. "Not until afterwards."
Mr. EVARTS. The law of nations was violated, your territory had been used, as matter of fact, we claim, as the base of naval operations, and it was not a dealing in contraband of war. It was not a commercial transaction. It was a direct furnishing of a cruiser with armament from your port. It might as well have been accomplished within three miles of your coast. Yet, it is said this is no offense against your law.
Sir ALEXANDER COCKBURN. "I do not say that."
Mr. EVARTS. Unfortunately for the United States, through the whole war, we had quite other doctrine from those who laid down the law for Great Britain in these matters. Fortunately, we have better doctrine here and now. But according to the law as administered in England such combinations of the materials of naval war could be made outside of her ports, by the direct action of the belligerent Government, deriv
In connection with this discussion, I ask attention to the course taken by the Government of Brazil in resentment and punishment for the incidental violation of its neutrality by the Florida, (within the neutral waters,) and by the Shenandoah, by her commander violating the Consular seal of Brazil on board one of the Shenandoah's prizes. In both instances, the offending cruisers were perpetually excluded from the ports of the empire; and the exclusion embraced any other cruiser that should be commanded by the captain of the Shenandoah.
The treatment of the Rappahannock by the French Government, which detained her in port till the close of the war, is well worthy of attention. The transaction is detailed in the App. Am. Counter Case, pp. 917-946.