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 within 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".44

Great Britain, on the other hand did not place as strict an interpretation on the term, 'due diligence', as did the United States. "Due diligence," says the British Case, "on the part of a sovereign government signifies that measure of care which the government is under an international obligation to use for a given purpose. This measure, where it has not been defined by international usage or agreement, is to 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." The definition is limited in more concise words a little later in the Case. "It would commonly, however, be unreasonable and impracticable to require that it should exceed that which the governments of civilized states are accustomed to employ in matters of their own security or that of their own citizens".45 From these two quotations from the Case of Great Britain, it can be gathered that, according to the English view, the responsibility of a neutral for acts done in violation of its neutrality, and harmful to one of the belligerents, is limited by the requirements of its municipal law. The United States did not agree with this interpretation of 'due diligence', and did not consider that municipal law marked the limit of a nation's responsibility. "The obligation of a neutral to prevent the violation of the neutrality of its soil is independent of all interior or local law. The municipal law may and ought to recognize that obligation; but it can neither create nor destroy it, for it is an obligation resulting directly from International Law, which forbids the use of neutral territory for hostile purpose.

"The local law, indeed, may justly be regarded as evidence, as far as it goes, of the nation's estimate of its international

44 Papers Relating to the Treaty of Washington, Vol. I, p. 67.

duties; but it is not to be taken as the limit of those obligations in the eye of the law of nations."46

66

The opinion of the Court on this question was very general in its terms, and in no way adequately defined it. 'due diligence' . . . ought to be exercised by neutral governments in exact proportion to the risks to which either of the belligerents may be exposed "47 However, the Court supported the United States in its claim that municipal law should not be the measure of international obligations, in these words, ".. the government of Her Britannic Majesty cannot justify itself for a failure in due diligence on a plea of insufficiency of the legal means of action which it possessed."48

Article VI of the Treaty of Washington, besides giving the three rules of action to guide the Arbitration Court in its award, invited other maritime powers to accede to the principle of 'due diligence', but no powers availed themselves of the opportunity, for the simple reason that no adequate or strict interpretation of the term had been evolved by the Court. However, the discussions had their effect on international law, generally in the practice of nations from that time to the present, and in particular in the XIII Convention of the Second Hague Conference where it was held that "A neutral government is bound to employ the means at its disposal to prevent the fitting out or arming of any vessel within its jurisdiction which it has reason to believe is intended to cruise, or engage in hostile operations, against a power with which that government is at peace. It is also bound to display the same vigilance to prevent the departure from its jurisdiction of any vessel intended to cruise, or engage in hostile operations, which has been adapted, in whole or in part, within the said jurisdiction to warlike use."49

The Court awarded the United States a lump sum of $15,500,000 damages for the direct losses, but the claims for damages due to indirect losses were thrown out on the ground that they were confused with the general and necessary costs of the war itself, irrespective of the depredations of the Confederate cruisers.50

46 Papers Relating to the Treaty of Washington, Vol. I, p. 47.

Papers Relating to the Treaty of Washington, Vol. IV, p. 53.

As a result of the controversy leading up to the final establishment of the Geneva Arbitration Court by the Treaty of Washington, the British Foreign Enlistment Act of 1819 was amended. A royal commission was appointed in January 1867 to investigate the conditions of the existing laws available for the enforcement of British neutrality and to see if there was any need for a better provision than that existing. As a result of this action, the Commissioners drew up an act which was adopted as the Foreign Enlistment Act of 1870. This statute furnished preventive measures against further violations of neutral duties on the part of British subjects or of any person within the jurisdiction of the laws of Great Britain, and laid severe restrictions upon British ship builders. In the main, this act followed the American Neutrality Act of 1818 more closely than the former had done. The sense of neutral obligations became stricter and the freedom of neutral individuals became more restricted. The offence of illegal enlistment was prohibited under heavy penalty of fine and imprisonment, including even a master or owner of a ship, who knowingly ships or engages to ship an illegally enlisted person. The act prohibited any hostile expedition from leaving the waters of Great Britain, and provided for the prevention of the preparation of such an expedition, and penalized any person who should prepare or fit out, or assist in preparing or fitting out, or who took part in any such illegal expedition. The act further prohibited any augmentation of warlike forces and provided punishment for any person who, by the addition of guns or of any warlike equipment, was knowingly concerned in such augmentation. Most significant of all was the prohibition of illegal ship building. The act prohibited any person, without license from Her Majesty, to build, or agree to build, to issue or deliver a commission to, to equip, to dispatch, or allow to be dispatched, any ship with the intent or knowledge of the fact that the same would be employed in the military or naval service of any foreign state with which Great Britain was at peace. In case a person should build or equip a vessel for a belligerent power in pursuance of a contract made before the outbreak of the war, he was required to give such security as was demanded by the government and to allow any measures for the prevention of the departure of the ship from British waters that the government might see fit to impose, and more

ΙΟΙ

over the ship could not be dispatched or sent out without license from Her Majesty's government, until the end of the war. This provision was decidedly more satisfactory than the precautions taken in the former act, for in place of leaving the question of the legality of equipping, building or sending out a ship to which suspicion was attached, to the ship builder, it was provided that the government authorities were to take all the responsibility of searching or detaining such a vessel.

This act went beyond anything that was demanded by the United States before the Geneva Tribunal, and it was acknowledged even in countries other than England that the act was in advance of the requirements of international law. The conduct of a nation in regard to keeping its neutrality intact might safely be left to its municipal standard, where such an act as this exists, and in all probability if this had been the standard in England at the time of the Civil War and the law had been strictly enforced, there never would have been occasion to bring England before the bar of international justice in the Geneva Arbitration Court. Many authors seem rather inclined to agree with Walker, who concluded his elaborate discussion on this subject by stating that "if administered with resolution by British ministers, and with good faith and reasonable diligence by British subordinate officials, they will in any event preserve Great Britain from the condemnation of another Geneva Tribunal, and at least, they evince the real desire of the Island Kingdom to equip herself for the performance of a great international duty."51

61

Walker, The Science of International Law, p. 502.

CHAPTER 6

SUMMARY REVIEW

The early history of the law of nations allowed of no such idea as neutrality, as we understand it now. The very elementary ideas of neutrality began with the gradual decline of the Roman Church and the Roman Empire. The earlier writers on international law, beginning with Hugo Grotius, endeavored to define neutrality, and their opinions were of considerable value to its development. But their ideas of it were more or less vague and imperfect, admitting the legality of warlike assistance rendered by neutrals to belligerents under certain circumstances as consistent with neutrality.

Having no definite rules to regulate the relations between neutrals and belligerents, international commerce was entirely at the mercy of warring states and was afforded no protection whatever. The principle of the inviolability of neutral territory, important as it has now become, was practically unknown down to the latter part of the 18th century. Belligerents were left entirely free to transport their troops across neutral territory, to raise land and naval forces in neutral states, and to arm and equip vessels of war in neutral jurisdiction. States had, on the other hand, neither the right to prevent neutral operations in their territory nor were they held responsible for the acts of their subjects in entering the service of a foreign state, or from engaging in any other service hostile to one of the belligerents. The subjects of neutral states, as well as the states themselves, were at perfect liberty to give all sorts of warlike succours to either, or both, of the belligerent parties, as their individual interests or sentiments should dictate.

The rudimentary ideas of neutrality were found in some of the early maritime codes of European countries, the Consolato del Mare being the most famous of them all. The principle of the Consolato, namely, 'spare your friend and harm your enemy', was a manifestation of the growing desire to distinguish neutrals from belligerents and for protecting the lat