of war, built in accordance with law and without any infraction of neutrality. The commission with which such a vessel is provided is insufficient to protect her as against the neutral whose neutrality she has violated.

"And how can the belligerent complain of the application of this principle? By seizing or detaining the vessel the neutral only prevents the belligerent from deriving advantage from the fraud committed within his territory by the same belligerent; while by not proceeding against a guilty vessel, the neutral justly exposes itself to having its good faith justly called in question by the other belligerent.

"This principle of seizure, of detention, or at any rate of preliminary notice that a vessel, under such circumstances, will not be received in the ports of the neutral whose neutrality she has violated, is fair and salutary, inasmuch as it is calculated to prevent complications between neutrals and belligerents, and to contribute toward freeing neutrals from responsibility by proving their good faith in the case of a fraud perpetrated within their territory.

"The converse of this principle is repugnant to the moral sense, for it would be allowing the fraudulent party to derive benefit from his fraud.

"The rules established by the Empire of Brazil confirm the principle which we have just laid down, for in its regulations respecting neutrality directions are given

66

§ 6. Not to admit into the ports of the empire a belligerent who has once violated the neutrality; and,

§ 7. To compel vessels which may attempt to violate the neutrality to leave the maritime territory of the empire immediately, without supplying them with anything whatever.'

"In fine, the commission with which a vessel of war may be provided has not the power to protect her as against the neutral whose neutrality she has previously violated."

Opinion of Mr.
Staempfli.

Mr. Staempfli, in his opinion, said:1

5. The fact that a vessel, built in contravention of the laws of neutrality, escapes and gets out to sea, does not free that vessel from the responsibility she has incurred by her violation of neutrality; she may, there fore, be proceeded against if she returns within the jurisdiction of the injured state. The fact of her having been transferred or commissioned in the meanwhile does not annul the violation committed, unless the transfer or commissioning, as the case may be, was a bona fide transaction."

Mr. Adams's Opinion.

Mr. Adams expressed the following opinion: "On behalf of Great Britain, it is claimed that the rule is perfectly established that a vessel belonging to any power recognized as sovereign, or as a belligerent, has, in virtue of its commission, a right to claim

1 Papers relating to the Treaty of Washington, IV. 105. * Id. 146.

a reception, and the privilege of extraterritoriality, without regard to its antecedents, in the ports of every neutral power. "The authorities quoted to sustain this position sustain it as an established general rule. I see no reason to question it. "But the question that has been raised in the present controversy is an exceptional one, which is not touched by these decisions.

"The reception of vessels having an origin exclusively or even partially American, and bearing on their front no evidence of fraud or violence, does not seem to have been brought into question in this controversy. Such vessels were the Sumter, the Nashville, the Tallahassee, the Chickamauga, etc.

"The case is different in regard to that class of vessels which derive their origin exclusively from a systematic and fraudu lent abuse of the amity of a neutral power, setting at defiance its laws within its own jurisdiction, and taking advantage of its forbearance in the hope of involving it the more with its opponent in a responsibility for tolerating its own misdeeds.

"It admits of no question, in my mind, that the outfit and equipment of the Florida, the Alabama, the Georgia, and the Shenandoah were each and all made in defiance of the laws of Great Britain and the injunction of the Queen's proclamation of neutrality. By this conduct the perpetrators had not only clearly forfeited all right to consideration, but had subjected themselves to the penalties of malefactors if they ever returned within the jurisdiction which they had insulted. The right to exclude vessels from British ports on these grounds, without regard to their commissions, is distinctly affirmed by Sir Roundell Palmer, one of the lawyers of the crown during the whole period in question, and seems to be indubitable. To deny it would place every sovereign power at the mercy of any adventurous pirate on the ocean who might manage to cover himself with the threadbare mantle of the minutest belligerent.

"It is a perfectly well understood principle of law that no cit izen of a foreign nation, excepting, perhaps, in certain cases, a representative clothed with diplomatic privileges, is free from the obligation of conforming himself to the laws of the country in which he is residing. If he willfully violates them he is subject to the same penalties which are imposed upon native citizens. Even though not a citizen he is subject in Great Britain to be tried for quasi treason. If instead of conspiring against the Queen he enters into combinations which involve the kingdom in complications with foreign powers with which it is at peace, he surely can not come forward and plead the possession of a commission from the authorities of his own country in his justification. Neither is the commander of a ship of a foreign power which comes within the harbor of another free from the same general obligation. If he violates any of the regulations prescribed for his government he is liable to pay the penalty by a withdrawal of his privileges or by an immediate order of exclusion from the port.

"For myself, therefore, I can not see any reason why the existence of a commission should have stood in the way of a clear expression by Great Britain of its sense of the indignities heaped upon Her Majesty's government by the violation of her laws within her various dominions, continuously persisted in during the existence of this belligerent. In my opinion it would have justified the seizure and detention of the offending vessels wherever found within the jurisdiction. But if that were considered inconsistent with a clear impartiality, it certaiuly demanded an entire exclusion from Her Majesty's ports. The right to decide such a point rests exclusively with every sovereign power. But an opportunity was lost for establishing a sound principle of international maritime intercourse which may not soon occur again."

Sir Alexander Cockburn's Opinion.

Sir Alexander Cockburn argued that the commissions issued by the Confederate States being valid the vessels were thereafter entitled to the privilege of extraterritoriality and were not liable to seizure. To say that a country whose belligerency had been recognized, but whose independent nationality had not been acknowledged, had no rights of sovereignty, and consequently could not by its commission exclude the right of the local sovereign to seize one of the vessels of war for an infraction of municipal law would deprive the recognition of belligerency of one of its most important consequences to a belligerent government, that of having its armed vessels invested with the privileges conceded to men of war. As to the argument that, assuming the commissions to be valid, it was nevertheless the duty of the government whose neutrality had been violated to seize the vessels, Sir Alexander Cockburn said it seemed monstrous to assert that the neutral was bound to have recourse to force, and possibly to become involved in war for the benefit of another belligerent. Nothing short of a breach of neutrality, according to international law, could justify a resort to forcible measures on the part of the neutral as for a violation of his neutral rights. The equipment of the Florida in England constituted no violation of neutrality by international law, the vessel not having been armed, or sent out for the present purpose of war. So, her arriving at Green Cay was at the utmost only a breach of municipal law. And even assuming that a neutral state would be entitled to seize a vessel, though armed with a commission from a belligerent power, by reason of some offense against its neutrality as a reparation for a wrong done against itself, how could it possibly be asserted that it was under any obligation to do so?1

Papers relating to the Treaty of Washington, IV. 409, et seq.

Decision of the
Tribunal.

On the question under consideration, the tribunal of arbitration rendered the following decision: '

"The effects of a violation of neutrality committed by means of the construction, equipment, and armament of a vessel are not done away with by any commission which the government of the belligerent power, benefited by the violation of neutrality, may afterward have granted to that vessel; and the ultimate step, by which the offence is completed, cannot be admissible as a ground for the absolution of the offender, nor can the consummation of his fraud become the means of establishing his innocence. The privilege of exterritoriality accorded to vessels of war has been admitted into the law of nations, not as an absolute right, but solely as a proceeding founded on the principle of courtesy and mutual deference between different nations, and therefore can never be appealed to for the protection of acts done in violation of neutrality. The absence of a previous notice cannot be regarded as a failure in any consideration required by the law of nations, in those cases in which a vessel carries with it its own condemnation."

3. SUPPLIES OF COAL.

It was maintained in the Case of the United States that an undue indulgence was shown to Confederate cruisers in the extent to which they were permitted to obtain supplies of coal in British ports, and that in this way they were enabled to use those ports as a base of hostile operations against the United States in violation of the duty defined in the second rule of the treaty. These allegations were denied in the British Case.

The British Supplemental Argument declared that supplies of coal in British ports were afforded equally and impartially to both the contending parties; that they were obtained, on the whole, more largely by ships of war of the United States than by the Confederate cruisers; and that such supplies were lawful under the principles of international law.2

Mr. Evarts, in his Supplemental Argument, and Mr. Waite, in another special argument,' argued that the permission to take coal, unless properly restricted, amounted to permitting the belligerent to make use of the neutral ports as a base of naval operations, and that the Confederate cruisers were suffered to obtain supplies of coal in British ports to facilitate their belligerent operations.

Papers relating to the Treaty of Washington, IV. 50. * Id. 111. 433,

2

Id. 458.

4 Id. 513.

Opinion of Count
Sclopis.

On this subject Count Selopis expressed the following opinion:1

"I can only treat the question of the supply and shipment of coal as connected with the use of a base of naval operations directed against one of the belligerents, or as a flagrant case of contraband of war.

"I will not say that the simple fact of having allowed a greater amount of coal than was necessary to enable a vessel to reach the nearest port of its country constitutes in itself a sufficient grievance to call for an indemnity. As the Lord Chancellor of England said on the 12th of June 1871, in the House of Lords, England and the United States equally hold the principle that it is no violation of international law to furnish arms to a belligerent. But if an excessive supply of coal is connected with other circumstances which show that it was used as a veritable res hostilis, then there is an infringement of the second rule of Article VI. of the treaty. It is in this sense also that the same Lord Chancellor, in the speech before mentioned, explained the intention of the latter part of the said rule. Thus, when I see, for example, the Florida and the Shenandoah choose for their field of action, one, the stretch of sea between the Bahama Archipelago and Bermuda, to cruise there at its ease, and the other, Melbourne and Hobson's Bay, for the purposes, immediately carried out, of going to the arctic seas, there to attack the whaling vessels, I can not but regard the supplies of coal in quantities sufficient for such purposes as infringements of the second rule of the sixth article."

Mr. Adams's Opinion.

Mr. Adams, in his opinion, said:2

"This question of coals was little considered by writers on the law of nations, and by sovereign powers, until the present century. It has become one of the first importance, now that the motive power of all vessels is so greatly enhanced by it.

"The effect of this application of steam power has changed the character of war on the ocean, and invested with a greatly preponderant force those nations which possess most largely the best material for it within their own territories and the greatest number of maritime places over the globe where deposits may be conveniently provided for their use.

"It is needless to point out the superiority in this respect of the position of Great Britain. There seems no way of discussing the question other than through this example.

"Just in proportion to these advantages is the responsibility of that country when holding the situation of a neutral in time of war.

"The safest course in any critical emergency would be to

1 Papers relating to the Treaty of Washington, IV. 74.

*Id. 148.