the President of the United States by the eighth section of the neutrality act of 1818.1 These recommendations were, said the Case of the United States, made with a view to give the laws of the kingdom increased efficiency, and, in the language of the commission, to bring them into full conformity with the international obligations of England. The. report of the commissioners was made in 1868. On the 9th of August 1870 Parliament passed an act to give it effect. Soon afterwards a vessel called the International was proceeded against for an alleged violation of its provisions, before Sir Robert Phillimore, one of the commissioners who signed the report in 1868, who declared that the statute was passed for the purpose of enabling the government "to fulfill more easily than heretofore that particular class of obligations" arising out of a state of neutrality.

Recognitions of Neutral Duty.

The Case of the United States also referred to the proclamation of neutrality of May 13, 1861, as also showing to some extent the British Government's sense of its duties toward the United States. The proclamation appeared to concede that it was the duty of

Section 8 of the act of 1818 (3 Stats. at L. 449), now incorporated in the Revised Statutes of the United States, reads as follows: "That in every case in which a vessel shall be fitted out and armed, or attempted to be fitted out and armed, or in which the force of any vessel of war, cruiser, or other armed vessel, shall be increased or augmented, or in which any military expedition or enterprise shall be begun or set on foot, contrary to the provisions and prohibitions of this act; and in every case of the capture of a ship or vessel within the jurisdiction or protection of the United States as before defined, and in every case in which any process issuing out of any court of the United States shall be disobeyed or resisted by any person or persons having the custody of any vessel of war, cruiser, or other armed vessel of any foreign prince or state, or of any colony, district, or people, or of any subjects or citizens of any foreign prince or state, or of any colony, district, or people, in every such case it shall be lawful for the President of the United States, or such other person as he shall have empowered for that purpose, to employ such part of the land or naval forces of the United States, or of the militia thereof, for the purpose of taking possession of and detaining any such ship or vessel, with her prize or prizes, if any, in order to the execution of the prohibitions and penalties of this act, and to the restoring of the prize or prizes in the cases in which restoration shall have been adjudged, and also for the purpose of preventing the carrying on of any such expedition or enterprise from the territories or jurisdiction of the United States against the territories or dominions of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace."

a neutral to observe a strict neutrality as to both belligerents during hostilities. It also recognized the principle that the duties of a neutral in time of war do not grow out of and are not dependent upon municipal laws. Other acts of the British Government, indicating its sense of its duties as a neutral toward the United States, were the several instructions issued during the contest for the regulation of the official conduct of British naval officers and colonial authorities toward the belligerents. These various instructions recognized, said the American Case, the following principles and rules:

"1. A belligerent may not use the harbors, ports, coasts, and waters of a neutral in aid of its warlike purposes, or as a station or place of resort for any warlike purpose, or for the purpose of obtaining any facilities of warlike equipment.

"2. Vessels of war of the belligerents may be required to depart from a neutral port within twenty-four hours after entrance, except in case of stress of weather, or requiring provisions or things for the crew, or repairs; in which case they should go to sea as soon as possible after the expiration of the twenty-four hours.

"3. The furnishing of supplies to a belligerent vessel of war in a neutral port may be prohibited, except such as may be necessary for the subsistence of a crew, and for their immediate

use.

"4. A belligerent steam vessel of war ought not to receive in a neutral port more coal than is necessary to take it to the nearest port of its own country, or to some nearer destination, and should not receive two supplies of coal from ports of the same neutral within less than three months of each other."

The Case of the United States also referred to the course of the British Government in 1793, in calling upon the United States to perform their duties as a neutral during the war between England and France, and to the instructions which were given by the United States on that occasion, and the President's proclamation of neutrality then issued. The United States not only recognized the obligations of a neutral, but ultimately made compensation for the violation of those obligations. This occurred before the United States had any statute on the subject, and when the general rules of international law afforded the only definition of its duties. In 1794, however, the Congress of the United States, on the application of Great Britain, enacted a statute to prohibit unneutral acts under heavy penalties. In 1818 a comprehensive act was passed, at the request of the Portuguese Government. In 1838, on the

occasion of the rebellion which broke out in Canada in the preceding year, Congress passed another act on the suggestion of Great Britain. During the Crimean war the United States effectively discharged their neutral obligations. In these precedents the United States and Great Britain appeared, said the Case of the United States, to have assumed the following principles:

"1. That the belligerent may call upon the neutral to enforce its municipal proclamations as well as its municipal laws.

"2. That it is the duty of the neutral, when the fact of the intended violation of its sovereignty is disclosed, either through the agency of the representative of the belligerent or through the vigilance of the neutral, to use all the means in its power to prevent the violation.

3. That when there is a failure to use all the means in the power of a neutral to prevent a breach of the neutrality of its soil or waters, there is an obligation on the part of the neutral to make compensation for the injury resulting therefrom."

The latest official act of Her Majesty's govThe Three Rules. ernment indicating the views of Great Britain as to the duties of a neutral in time of war was, said the Case of the United States, to be found in the three rules contained in Article VI. of the treaty of Washington. It was true that the British negotiators had thought it essential to insert a declaration on the part of their government that they could not consent to these rules as a statement of principles of international law which were in force at the time when the claims under discussion arose. But the United States were of opinion, not only that these rules were then in force, but that there were also other rules of international law then in force, not inconsistent with them, defining with still greater strictness the duties of a neutral in time of war.

The rules of the treaty, said the Case of the "Due Diligence." United States, imposed upon neutrals the obligation to use due diligence to prevent certain

acts. These words were not regarded by the United States as changing in any respect the obligations imposed by international law. "The United States," said the Case, "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 dignity

Citing Vinnius, Comment. ad Inst. lib. 3, tit. 15; Ayliffe, Pandects, B. 2, tit. 13, pp. 108-110; Wood's Institutes, 106; Hallifax's Civil Law, 78; etc. etc.

and srengun 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."

The First Rule.

Under the first clause of the first rule, the Case of the United States maintained that the fitting out, or arming, or equipping, each constituted in itself a complete offense, while under the second clause it was made the duty of the neutral "to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use." The reason for this second clause, the language of which was much broader than that of the first clause, might, said the American Case, probably be found in the desire of the negotiators to avoid differences of interpretation in relation to the words "fitting out" and "equipping." In the United States it was held that the construction of a vessel in neutral territory in time of war which there was reasonable ground to believe might be used to carry on war against a power with which the neutral was at peace was 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. In the case of the Alexandra, however, in 1863, the British tribunals held that proof of the construction of a vessel for hostile use against the United States did not establish such an equipping, or fitting out, or furnishing as would bring the vessel within the act of 1819. The tribunal of arbitration might therefore, said the Case of the United States, infer that the framers of the

treaty intended to make it clear that it was "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." And the duty to detain and prevent the departure of such a vessel was violated as often as she was permitted to enter and depart unmolested from one of the neutral's ports.

As to the second rule, the Case of the United The Second Rule. States said that it was not understood "to apply to the sale of military supplies or arms in the ordinary course of commerce," but "to the use of a neutral port by a belligerent for the renewal or augmentation of such military supplies or arms for the naval operations referred to in the rule." "The ports or waters of the neutral are not," continued the Case, "to be made the base of naval operations by a belligerent. Vessels of war may come and go under such rules and regulations as the neutral may prescribe; food and the ordinary stores and supplies of a ship not of a warlike character may be furnished without question, in quantities necessary for immediate wants; the moderate hospitalities which do not infringe upon impartiality may be extended, but no act shall be done to make the neutral port a base of operations. Ammunition and military stores for cruisers can not be obtained there; coal can not be stored there for successive supplies to the same vessel, nor can it be furnished or obtained in such supplies; prizes can not be brought there for condemnation. The repairs that humanity demands can be given, but no repairs should add to the strength or efficiency of a vessel beyond what is absolutely necessary to gain the nearest of its own ports. In the same sense are to be taken the clauses relating to the renewal or augmentation of military supplies or arms and the recruitment of men. As the vessel enters the port, so is she to leave it, without addition to her effective power of doing injury to the other belligerent. If her magazine is supplied with powder, shot, or shells; if new guns are added to her armament; if pistols, or muskets, or cutlasses, or other implements of destruction are put on board; if men are recruited; even if, in these days when steam is a power, an excessive supply of coal is put into her bunkers, the neutral will have failed in the performance of its duty."