sels is before the Tribunal, Great Britain will proceed to state the principles which, in her view, ought to be applied to these facts. force when the 15. In view of the arguments which have been employed in the Case of the United States, the British Government will refer, in General principles the first place, to the general principles of international of international law law which were in force at the time when the facts occurred, facts occurred. setting aside for the moment the three Rules which have been adopted by Great Britain and the United States, and inserted in the sixth article of the Treaty of Washington. 16. The general principles of international law are such only as have been settled by the general consent of nations. For evidence of this general consent, it is customary to refer to the works of text-writers of acknowledged merit, who have made it their business to examine the sources from which such evidence may be legitimately drawn. Opinions, however, of individual publicists, judicial decisions of the tribunals of a particular country, acts of any one State or Government, cannot by themselves establish a rule of international law; they can only contribute toward the formation of such a rule, or to the proof of its existence. It is to be added that acts of a State or Government, when used for this latter purpose, ought to be shown to have proceeded from a sense of international obligation, and not from motives of policy or international comity.1 17. Under the general principles of international law, a broad distinction is drawn, in reference to the question of national responsibility, between the acts of a sovereign State or Government and those of individual citizens or subjects of the State or Government. And a further distinction is drawn between acts of individuals which the Government is under an obligation to prevent so far as it is able, and acts as to which the Government owes only a negative duty, the duty of not protecting the persons by whom they are done from penal consequences, which the law of nations attaches to them.2 18. These distinctions rest on the principle that, while a Government has complete control over its own acts, and may therefore with justicebe held completely responsible for them, the control which it can exercise over the acts of its subjects is of necessity very limited and imperfect. This control is limited on all sides by the very nature of civil government, and by the principle of individual liberty; by considerations both of what is generally practicable and of what is generally expedient. 19. By the general principles of international law in force when the facts now in question occurred, a neutral Government was not under an obligation to prevent or restrain the sale within its territory, to a belligerent, of articles contraband of war, or the manufacture within its territory of such articles to the order of a belligerent, or the delivery thereof within its territory to a belligerent purchaser, or the exportation of such articles from its territory for sale to, or for the use of, a belligerent.3 20. A ship, specially adapted for warlike use, had been held by publicists in general to belong to the class of articles which are contraband of war. The citations given in Annex A to the British Counter Case from Hübner, Tetens, Galiani, Lampredi, Azuni, Rutherforth, Martens, 1 For argument on this point, see British Counter Case, pp. 6-11. 2 See Heffter and other writers, quoted in Annex (A) to the British Counter Case, (pp. 143, et seq.) 3 See British Case, p. 23; and precedents quoted in British Counter Case, pp. 49, 50,. (note.) Piantanida, Story, Wheaton, and Heffter, abundantly prove this position. Neither the sending of such a vessel from a neutral to a bellig. erent country for sale to the belligerent Government, nor the sale of it within the neutral territory to a belligerent Government or its agents, was regarded as an act which, by the general principles of international law, the neutral Government was under any obligation to prevent. (Lampredi, Azuni, Story, Wheaton.) By one well-known writer, (M. Hautefeuille,) it had even been contended that such a vessel, if not actually armed, was not to be regarded as contraband of war, but was an object of legitimate commerce, whatever might be her force and whatever the character of her construction. 21. It was immaterial, in the view of international law, whether the vessel were sold in the market, when completed, to the belligerent purchaser, without any contract prior to her completion, or were built to the order of the purchaser. In each case the belligerent purchaser acquired an implement of war by means of a commercial transaction with a private person in the neutral country, and the adverse belligerent sustained in the one case no injury which he did not sustain in the other. 22. If, therefore, the facts brought to the knowledge of a neutral Government consisted only in this, that a vessel specially adapted for warlike use had been, or was about to be, acquired within the neutral territory by a belligerent Government or its agents, or that such adaptation was in progress in order to the delivery of the vessel to the bellig erent purchaser, the neutral Government was not bound to interfere. 23. The general principles of international law did, on the other hand, require that a neutral Government, having reasonable ground to believe that any port or place within its territory was being used, or was about to be used, by either belligerent as a base or point of departure for a military or naval expedition against the other, should exert reasonable diligence to prevent this abuse of neutral soil. Publicists had not attempted to define the meaning of the expressions employed above; they had commonly had recourse to simple and obvious illustrations, such as the assembling of an armed force ("rassemblement militaire") or the fitting out of privateers to cruise from a neutral port, (“ ausrüstung von Kapern,") as was done in France in and after 1776, and in the United States in and after 1793. The circumstance that the several constituent parts of a military or naval expedition (such as men, arms, a ship or ships) had been separately procured from a neutral country, has never been held sufficient to convert the neutral country into a base or point of departure for the expedition. In the celebrated case of the Independencia, which came (under the forensic title of the Santissima Trinidad) before the great American Judge Story, the ship, which had been originally built and equipped at Baltimore as a privateer, during the war with Great Britain, was sold after the peace to new owners, who dispatched her from that port, loaded with a cargo of munitions of war, and armed with twelve guns, (constituting a part of her original arma ment,) under the command of Captain Chaytor, an American citizen, on a voyage ostensibly to the northwest coast, but in reality to Buenos Ayres; the supercargo being instructed to sell the vessel to the Government of Buenos Ayres, (then in revolt and at war with Spain,) if he could obtain a suitable price. At Buenos Ayres the vessel was sold to Captain Chaytor himself and two other persons; and soon afterwards she assumed the flag and character of a public ship, and was understood by the crew to have been sold to the Government of Buenos Ayres. Captain Chaytor made known these facts to the crew, and asserted that he had become a citizen of Buenos Ayres, and had received a commis sion to command the vessel as a national ship; he invited the crew to enlist in the service, and the greater part of them accordingly enlisted; and the ship afterwards cruised, made prizes, and was recognized in the United States as a public ship of war of Buenos Ayres. This whole transaction was held lawful in the Courts of the United States; while certain augmentations of the force of this vessel, subsequently made in a port of the United States, were, by the same Courts, held unlawful.1 No publicist, again, had undertaken to determine what ought to be held a reasonable measure of care or diligence, nor to resolve the question what grounds of belief-or, in other words, what evidence-ought to be deemed sufficient for a Government to act upon. All equipments, which by their nature were applicable indifferently to purposes of war or commerce, were by the instructions issued by the Government of the United States in 1793 declared to be lawful, whatever might be the character of the vessel, or her actual or intended employment.2 The three Rules of ington. 24. In the first of the three Rules laid down in the Treaty of Washington the duties of a neutral Government are defined, with some increase of strictness as well as of precision. Accord- the Treaty of Wash ing to this rule, a neutral Government is bound to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable grounds to believe is intended to cruise or to carry on war against a power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been especially adapted, in whole or in part, within such jurisdiction, to warlike use. 25. The reasonable construction of this rule appears to require that the intention as to the future employment of the vessel should be an actual, present, fixed intention, not contingent on the happening of some uncertain event; that the contemplated employment should be proximate, not remote; and that the intention should exist at the time when the alleged obligation to interfere arises-either when the vessel is being fitted out, armed, or equipped in the neutral port, or when, after receiving there her special adaptation for war, she is about to depart from the neutral territory. The equipment, the departure, which the neutral Government ought to use due diligence to prevent, is an equipment, a departure, with an intention that the vessel shall be employed in operations of war, and with a view to her employment in such operations. 26. As to the character of the belligerent intention which, coupled with the act of equipment or special adaptation for war, makes it, according to the rule, the duty of the neutral Government to interfereas to the nature or the grounds of the belief on which the neutral Government ought to act-as to the measure of diligence or care which it is bound to exercise-as to these, the rules introduce no new principle, nor do they augment the breadth or stringency of any principle previously recognized. It was never supposed that a neutral Government was or could be bound, under any circumstances, to prevent the fitting out of a vessel, unless it had reasonable grounds to believe that she was intended to cruise or carry on war against a power with which the neutral was at peace. The words "due diligence," in the three Rules, exact from the neutral, in the discharge of the duties therein stated, that measure of care, and no other, which is required by the ordinary 1 Appendix to British Case, vol. iii, pp. 85-90. 2 British Counter Case, p. 27. Appendix to British Case, vol. v, pp. 269, 270. principles of international jurisprudence, and the absence of which constitutes negligence.1 Meaning of the words 27. When it is said that a Government has reasonable grounds to believe that an act is intended, which act the Government, if reasonable it possess such reasonable grounds, is bound to endeavor to ground to believe." prevent, and can prevent only by the enforcement of a law, more is meant than that the Government has grounds for suspicion, founded on rumor or mere circumstances of probability. Such grounds as these may indeed determine a Government to undertake voluntarily the responsibility and risk of trying to enforce the law; but they cannot create an obligation. This can only arise when the Government has adequate grounds, not for suspicion only, but for belief, that is, for such a belief as is sufficient to justify it in setting the machinery of the law in motion. 28. Due diligence on the part of a Government signifies that measure of care which the Government is under an obligation to use "Due diligence." for a given purpose. This measure, where it has not been defined by international usage or agreement, must be deduced from the nature of the obligation itself, and from those considerations of justice, equity, and general expediency on which the law of nations is founded.2 29. Where the substance of the obligation consists in the prevention of certain acts within the territory of a neutral power, from the consequences of which loss might arise to foreign States or their citizens, it would not be reasonable to exact, as of right, from the Government, a measure of care exceeding that which Governments are accustomed to exert in matters affecting their own security or that of their own citizens. No duty which nation owes to nation can possibly be higher or more imperative than that which every State owes to its own members, for whose welfare it exists, and to whom the Government, however constituted, is morally and primarily responsible for the right exercise of its powers. An extract from the able Danish jurist, Tetens, bearing on manifestly just and reasonable principle, has been given in a note at page 23 of the British Counter Case. 30. An observation to the same effect as the foregoing in the Case of Great Britain has been excepted to in the Counter Case of the United States, on the ground that "it sets up as the measure of care a standard which fluctuates with each succeeding Government in the circuit of the globe. This is an error. Where individuals are in question, the only general standards of due care which it has been found possible to frame, are framed with reference either to the care which the particular individual, against whom negligence is alleged, is accustomed to exert in his own concerns, or to the care which men in general, or particular classes of men, are accustomed to exert in their own concerns. To standards of this kind, with various modifications and under different forms of expression, jurists and judicial tribunals in all countries have commonly had recourse, to assist them to a decision in cases of alleged negligence. Where the acts or omissions of a Government are in question, it is certainly not unreasonable that the general standard of care, so far as any general standard is possible, should be drawn from the ordinary conduct of Governments in matters affecting those interests which they are primarily bound to protect. The objection suggested by the United States, that the standard is a fluctuating one, is therefore not only 1 British Counter Case, p. 21. 2 British Case, p. 24, proposition 9. 3 British Case, p. 167. Counter Case of the United States, sec. ii, par. 3. * British Case, p. 24, proposition 10. British Counter Case, pp. 21, 22. erroneous in itself, but might with equal reason be urged against the principles of decision commonly applied to analogous cases in the administration of private law. Its tendency, if admitted, would be to introduce a universal hypothesis of absolute and arbitrary power, as the rule of judgment for all such international controversies. 31. Great Britain has, however, submitted to the arbitrators that the question, what measure of care is in a given case sufficient to constitute due diligence, cannot be defined with precision in the form of a general rule, but must be determined on a careful consideration of all the circumstances of the given case. In the British Counter Case the history and experience of the United States themselves, during the war between Great Britain and France at the close of the last century, during the wars between Spain and Portugal and their revolted colonies, and still more recently in the cases of expeditions and hostile movements organized within the United States against Mexico, Cuba, and Great Britain, has been largely referred to, for the purpose of showing what has heretofore been deemed sufficient by the Government of the United States to satisfy the obligations incumbent upon them in this respect toward other nations, and how imperfect a measure of success has attended their efforts to restrain their citizens from lawless acts, inconsistent with those obligations.2 The statements in the British Counter Case on this subject will be found to be corroborated by the papers appended to the Counter Case of the United States. Those papers show the various instructions and proclamations issued with the object of preventing violations of the American law. The British Counter Case shows how, for a long series of years, and also very recently, those instructions and proclamations have been successfully evaded. Mr. Seward, in his dispatch to Mr. Adams, dated the 2d March, 1863, thought it sufficient to express the desire and expectation of the President that Her Majesty's Government would "take the necessary measures to enforce the execution of the law as faithfully as his own Government had executed the corresponding statutes of the United States.": This is a test of due diligence, by which Her Majesty's Government might safely be content to have its conduct tried. It does not believe that upon any candid mind the comparison would leave an impression to the disadvantage of Great Britain. tive in Great Britain. 32. It is absolutely necessary, in considering charges such as are made against Great Britain by the United States, to take British law, and into account, for some purposes, the laws and institutions powers of the Execu of the nation charged, the powers with which its Government is invested, and its ordinary modes of administrative and judicial procedure. These are among the circumstances which bear on the question of negligence, and they have a most material bearing on it. In all civilized countries, the Government possesses such powers only as are conferred on it expressly or tacitly by law; the modes of ascertaining disputed facts are regulated by law; through these powers the Executive acts, and to these methods of inquiry it is bound to have regard. To exclude these from consideration in questions relating to the performance of international duties, would at once render such duties intolerable and their performance impossible. 33. These considerations in no way affect the principle that the duties of neutrality are in themselves independent of municipal law. Those duties are not created by municipal law; they cannot be abolished or altered by it. But since, in the discharge of international 1 British Counter Case, pp. 22, 125. 2 Ibid., pp. 25-47. 3 Appendix to Case of the United States, vol. i, p. 669. |