question has generally been put as one of negligence or culpa, rather than as an absence of diligence. But, nevertheless, the phrase "due diligence," exacta diligentia, is of received use in the civil law.1

The extent of the diligence required to escape responsibility is, by all authorities, gauged by the character and magnitude of the matter which it may affect, by the relative condition of the parties, by the ability of the party incurring the liability to exercise the diligence required by the exigencies of the case, and by the extent of the injury which may follow negligence.

One of the earliest and one of the best of the English expositors of the Roman law is Ayliffe, (New Pandects of Roman Civil Law as anciently established in that Empire and practiced in most European Nations, London, 1734.) He says: "A fault is blamable through [153] want of taking proper *care; and it obliges the person who does the injury, because by an application of due diligence it might have been foreseen and prevented."2

2

Vinnius, Comment. ad Inst., lib. 3, tit. 15.

* Ayliffe, in his Pandects, (B. 2, tit. 13, pp. 108, 109, 110,) has given an elaborate view of the different sorts of fault or negligence, and fraud and deceit. The passage is long, but as it contains a very ample view of the opinions of the Civilians it may be useful to place a part of it in a note:

"The word fault, in Latin called culpa, is a general term; and according to the definition of it, it denotes an offense or injury done unto another by imprudence, which might otherwise be avoided by human care. For a fault, says Donatus, has a respect unto him who hurts another not knowingly nor willingly. Here we use the word offense or injury by way of a genus, which comprehends deceit, malice, and all other misdemeanors, as well as a fault; for deceit and malice are plainly intended for the injury of another, but a fault is not so designed. And therefore we have added the word imprudence in this definition, to point out and distinguish a fault from deceit, malice, and an evil purpose of mind, which accompanies all trespasses and misdemeanors. A fault arises from simplicity, a dullness of mind, and a barrenness of thought, which is always attended with imprudence; but deceit, called dolus, has its rise from a malicious purpose of mind, which acts in contempt of all honesty and prudence, with a full intent of doing mischief, or an injury. And by these last words in the definition, namely, which might otherwise be avoided by human care, we distinguish a fault from a fortuitous case. For a fault is blamable through want of taking proper care; and it throws an obligation upon the person that does the injury, because by an application of due diligence it might have been foreseen and prevented. But fortuitous cases often cannot be foreseen, or (at least) prevented by the providence of man; as death, fires, great floods, shipwrecks, tumults, piracies, &c. Those things are superior to the prudence of any man, and rather happen by fate, therefore are not blamable. But if fraud or some previous fault be the occasion of these documents, they are not then deemed to be fortuitous cases. A fault is a deviation from that which is good; and, according to Bartolus, erring from the ordinance and disposition of a law. It is sometimes difficult to judge what is the difference betwixt a fault and a dolus, since these words very often stand for one and the same thing. There is no one in this life lives without a fault; but he that would speak distinctly and properly, must impute a dolus to some wickedness or knavery, and a fault to imprudence. The first consists chiefly in acting, and the other in not acting or doing something which a man ought to do. According to Bartolus, a fault is divided into five species, viz, culpa latissima, latior, lata, leris, and lerissima. The first he makes to be equal to manifest deceit, and the second to be equivalent unto presumptive malice or deceit. The first and second of these distinctions (he says) approach unto fraud, and are sometimes called by the name of fraud. But a lata culpa, which is occasioned by gross sloth, rashness, improvidence, and want of advice, is never compared unto deceit or malice. For he that understands not that which all other men know and understand may be styled (says Bortolus) a supine and unthinking man, but not a malicious and deceitful person. But, I think, none of those distinctions of his have any foundation in law; for such things as admit of any degree of comparison, in respect of being more or less so, do not admit of any specific difference; as majus et minus diversas species non constituunt. For that which the law says de latiore culpâ sometimes is to be understood de lata culpâ, after the manner that a word of the comparative degree is sometimes put for a word of the positive, as in Virgil: Tristior et lacrymis oculos suffusa nitentes. Wherefore I shall hore distinguish a fault into two species only, to wit, into lata and leris, though others mention a culpa S. Ex. 31-5

*Mr. Justice Story has elaborately discussed the meaning of [154] these terms, and the extent of diligence required to avoid responsibility. He says, as the result of a comparative examination of the authorities of different nations, "What is usually done by pru*dent men in a particular country in respect to things of a like [155] nature, whether it be more or less, in point of diligence, than what is exacted in another country, becomes in fact the general measure of diligence."1

Following the example of Sir William Jones, *and other writers [156] on the civil law, Mr. Justice Story favors the idea that there may be three degrees of diligence, and three degrees of negligence, which are capable of being accurately defined and applied to the various circumstances of life. But while asserting, as the authorities supported him in doing, that not only the Roman law, but the jurists of Continental Europe and of Scotland all recognize this division, he candidly concedes the difficulty of applying such a fictitious system, and he is obliged to admit the general and only sound principle, that "diligence is usually proportioned to the degree of danger of loss, and that danlerissima too. The first denotes a negligence extremely blamable; that is to say, such a negligence as is not tempered with any kind of diligence. The other imports such a kind of negligence, whereby a person does not employ that care in men's affairs which other men are wont to do, though he be not more diligent in his own business. But as often as the word culpa is simply used in the law, it is taken for that which we style culpa leris, a light fault, because words are ever understood in the more favorable sense. A culpa lerissima, or simple negligence, is that which proceeds from an unaffected iguorance and unskillfulness, (say they,) and it is like unto such a fault, which we easily excuse, either on the account of age, sex, rusticity, &c. Or, to set the matter in a clearer light, a lata culpa is a diligence in a man's own affairs, and a negligence in the concerns of other men. And a levis culpa is, when a man employs the same care or diligence in other men's affairs as he does in his own, but yet does not use all care and fidelity which more diligent and circumspect men are wont to make use of; and this may be called an accustomed negligence as well in a man's own affairs as in the business of other men. A lata culpa, I mean a great fault, is equivalent or next unto deceit or malice. And it may be said to be next unto deceit or malice two ways, namely, either because it contains in it a presumptive deceit, as when a man does not use the same diligence in another's concerns as in his own; or else because the frand is so gross and inexcusable, that, though frand be not presumed, yet it differs but little from it. As when a person becomes negligent in favor of a friend; for though favor, or too great a facility of temper, excuses a man from malicious or knavish purposes, yet it is next of kin thereunto. And it is a rule laid down in law, that when the law commands any act of deceit to be made good, it is also always understood of a lata culpa, or a gross fault. Wherefore, since a great fault is equivalent or next unto deceit, it follows, that in every disposition of law where it is said that an evil intent or dolus ought only to be repaired, it is to be understood also of a lata culpa; which is true, I think, unless it be in the Cornelian law de Sicariis. For he who commits the crime of murder ex latú culpâ, shall be punished according to the severity of that law, but in a more gentle manner; and thus herein a lata culpa is distinguished from malice, or an evil design, called dolus malus; for a murderer is liable on the score of his wicked purpose, and not on the account of gross negligence. Some say, that generally speaking, whenever the law or an action is touching a pecuniary penalty, and the law expressly mentions a dolus, a lata culpa is insufficient, and is excluded."

Numerous authorities to the same effect might be cited; but it will suffice at this stage to refer to such as are most familiar to jurists in Great Britain and the United

States.

Wood's Institutes, p. 106.

Hallifax's Civil Law, p. 78.

Bell's Commentaries, § 232 et seq.

Browne's Civil and Admiralty Law, vol. 1, p. 354.

Erskine's Institutes, bk. 3, tit. 1.

Bowyer's Civil Law, p. 174.

Mackenzie's Roman Law, p. 186.

Domat's Civil Law by Strahan, vol. 1, p. 317.

Heineccius, Elementa Juris Civilis, lib. 3, tit. 14, Opera, tom. V.

1 Story on Bailments, § 14.

ger is, in different states of society, compounded of very different elements."1

The highest court of the United States has doubted the philosophy of grading the degrees of diligence and negligence into fixed classes.2 The Scottish courts have laid down a rule which is perhaps more philosophical-that where an injury has been suffered through the act or omission of another, it must be shown, in order to avoid liability, that the accident was caused without any fault of the party doing or suffering the act or omission, and through some latent cause, which could not be discerned, obviated, controlled, or averted.3

[157] *In the discussion upon the Treaty of Washington in the House of Lords, Lord Granville, the Minister for Foreign Affairs, is represented as saying: "The obligation to use due diligence implies that the Government will do all in its power to prevent certain things, and to detain vessels which it has reasonable ground for believing are designed for warlike purposes." Lord Cairns, in the same debate, is represented as saying: "The point turns upon the words due diligence.' Now, the moment you introduce those words you give rise to another question, for which I do not find any solution in this rule. What is the standard by which you can measure due diligence? Due diligence by itself means nothing. What is due diligence with one man, with one Power, is not due diligence with another man, with a greater Power." Sir Roundell Palmer, in a subsequent debate in the House of Commons, said that he supposed that due diligence "meant that a neutral should use, within a reasonable sense, all the means legitimately in its power."5

It is needless to say that the United States do not agree in these official definitions by Lord Granville and Sir Roundell Palmer, in the [158] sense in which they are probably made. The definition to which

Lord Cairns has given the weight of his authority appears to be nearer to the opinions as to these words, entertained by the United States.

The United States understand that the diligence which is called for by the Rules of the Treaty of Washington is a due diligence; that is, a diligence proportioned to the magnitude of the subject and to the dig nity and strength of the Power which is to exercise it:-a diligence which shall, by the use of active vigilance, and of all the other means in the power of the neutral, through all stages of the transaction, prevent its soil from being violated:-a diligence that shall in like manner deter designing men from committing acts of war upon the soil of the neutral against its will, and thus possibly dragging it into a war which it would avoid :-a diligence which prompts the neutral to the most energetic measures to discover any purpose of doing the acts forbidden by its good faith as a neutral, and imposes upon it the obligation, when it receives the knowledge of an intention to commit such acts, to use all the means in its power to prevent it.

No diligence short of this would be "due;" that is, commensurate with the emergency, or with the magnitude of the results of negligence. Understanding the words in this sense, the United States finds them identical with the measure of duty which Great Britain had previously admitted.

1 Story on Bailments, § 14.

* Steamboat New World vs. King, 17 Howard Reports, page 475. See also the author ities there cited.

3 Hay on Liabilities, ch. 8.

4 London Times, June 13, 1871.

A speech delivered in the House of Commons, on Friday, August 4, 1871, by Sir Roundell Palmer, M. P. for Richmond. London and New York, Macmillan & Co., 1871, page 28.

*It will also be observed that fitting out, or arming, or equip. [159 ping, each constitutes in itself a complete offense. ing, or equipping Therefore a vessel which is fitted out within the neutral's

Fitting out, arm

each an offense. jurisdiction, with intent to cruise against one of the belligerents, although not equipped or armed therein, (and vice versa) commits the offense against International Law, provided the neutral government had reasonable ground to believe that she was intended to cruise or carry on war against such belligerent, and did not use due diligence to prevent it.

The second clause of the first Rule.

The neutral is required by the second clause of the first Rule of the Treaty to prevent the departure from its jurisdiction of any vessel intended so to cruise or carry on war, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use.

The Tribunal of Arbitration probably will not have failed to observe Reasons for change that a new term is employed here. In the first clause of the of language. first Rule the obligation of the neutral is limited to the prevention of the "fitting out, arming, and equipping" the vessel. In the second clause, the language is much broader: a vessel which has been "specially adapted, in whole or in part, to warlike use," may not be permitted to depart. The reasons for this change may probably be found in the different interpretations which have been put by the Exe*cutive and Judicial Departments of the two Governments upon [160] the words "fitting out" and "equipping," and in the desire of the negotiators of the Treaty to avoid the use of any words that could be deemed equivocal. The United States will endeavor to explain to the Tribunal what these differences of interpretation were.

The eighth section of the United States law of 1818 empowers the President to take possession of and detain vessels which have been "fitted out and armed" contrary to the provisions of the act. In the year 1869, while there was a state of recognized war between Spain and Peru, (although there had been no active hostilities for several years,) the Spanish Government made contracts for the construction of thirty steam gun-boats in the port of New York. After some of these boats were launched, but while most of them were on the stocks, and before any had received machinery or had been armed, the Peruvian Minister, on behalf of his Government, represented to the Government of the United States that this was being done in violation of the neutrality of the United States. The President, proceeding under the section of the statute above referred to, took possession of the vessels, and they remained in the custody of the naval forces of the United States until they were released, with the consent of the Peruvian Minister at [161] Washington. This was done under the assumption that the construction of a vessel in neutral territory during time of war, which there is reasonable ground to belive may be used to carry on war against a power with which the neutral is at peace, is an act which ought to be prevented; and that the constructing or building such a vessel was included in the offense of fitting it out. The same interpretation (in substance) has been given to this language by the judicial authorities of the United States.1 The British tribunals have given a different opinion upon the meaning of these words. In the case of the Alexandra,2 against which proceedings were had in London, in 1863, for an alleged violation of the provisions of the act of 1819, it was held that the proof

United States rs. Quincy, 6 Peters's Reports, 445. 2 Vol. V, pages 3-470.

of the construction of a vessel for the purpose of hostile use against the United States did not establish such an equipment, or fitting out, or furnishing, as would bring the vessel within the terms of the Foreign Enlistment Act1 and enable the Government to hold it by proceedings

under that statute. When the Joint High Commissioners met [162] at Washington, *and had to consider what words they would use

in the Treaty, they found the Executive of the United States and the Judiciary of Great Britain differing as to the meaning of these important words.2 The Tribunal of Arbitration may therefore reasonably presume that the framers of that Treaty, after the experience of the American insurrection, sought for language which would, beyond any question, indicate the duty of the neutral to prevent the departure from its ports of any vessel that had been specially adapted for the hostile use of a belligerent, whether that adaptation began when the keel was laid to a vessel intended for such hostile use, or whether it was made in later stages of construction, or in fitting out, or in furnishing, or in equipping, or in arming, or in any other way.

The undoubted duty of the neutral to detain such a vessel, although it had not been formulated by Great Britain in any of the acts prior to 1861 which have been passed in review, is understood to have been included in the obligation to prevent her construction. The United States

regard this duty as one that existed by the law of nations prior [163] to the Treaty of Washington; but as that *Treaty provides that, for the purpose of the present discussion, the rule is to be taken as having the force of public law during the Southern Rebellion, it is needless to discuss that point.

Continuing force of

The United States invite the particular attention of the Tribunal to the continuing character of the second clause of this rule. The violation of the first clause takes place once for all this rule. when the offending vessel is fitted out, armed, or equipped within the jurisdiction of the neutral; but the offense under the second clause may be committed as often as a vessel, which has at any time been specially adapted, in whole or in part, to warlike use, within the jurisdiction of the neutral, enters and departs unmolested from one of its ports. Every time that the Alabama, or the Georgia, or the Florida, or the Shenandoah came within British jurisdiction, and was suffered to depart, there was a renewed offense against the sovereignty of Great Britain, and a renewed liability to the United States.

The British Government, certainly once, if not oftener, during the rebellion, admitted its duty to detain these cruisers. Mr. Cobden stated it forcibly in a speech in the House of Com- offending vessels admons: "The Government admit, through their legal ad- Britain.

Duty to detain mitted by Great

viser, that they have the power, if they choose to exercise it, to [164] prevent these vessels from entering our harbors; but the honor

able and learned gentleman doubts the expediency of exercising it, and his reason is that he thinks we have not clear proof of guilt. This brings me to a striking piece of inconsistency on the part of the

This opinion was on the Act of 1819. The Act of 1870 provides that "equipping shall include the furnishing a strip with any tackle, apparel, furniture, provisions, arms, munitions, or stores, or any other thing which is used in or about a ship for the purpose of fitting or adapting her for the sea or for naval service."

It is perfectly true that Lord Chief Barou Pollock and Baron Bramwell, as well as other great legal authorities, thought that such words as these did not convey the true meaning of our then Foreign Enlistment Act; which, in their opinion, was intended to apply only to those vessels which might be armed within our jurisdiction, either completely or at least so far as to leave our waters in a condition immediately to commence hostilities."-Sir R. Palmer's Speech, August 4, 1871, page 32.

Vol. V, page 590.