of ordinary navigable capacity to keep the seas, for the purposes of the voyage and the maintenance of the cruise, render the resort of vessels to a port or ports suitable to, and convenient for, their navigation, under actual and bonâ 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.

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Sir Alexander Cockburn." Then I understand 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 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 for itself in neutral waters, cannot lie at the mouth of a neu.

tral 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 offence 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.

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 "Nashville." The "Nashville " left Charleston under circumstances not in dispute, and I am not now considering whether Great Britain is or is not reponsible 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 unfavourable 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 figure six afterwards 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 neutral 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 śafety, 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? Is it true that the distance of the projected naval operation, or its continuance, makes a difference in principle, 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 inquiries as to culpable escape or evasion from the original 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

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