guerre étrangers, lorsqu'ils sont entrés dans les eaux d'un état avec la permission de ce dernier.

Mr. Cushing, when Attorney-General of the United States, in 1855, thus stated the rule, as received in the United States:

A foreign ship of war, or any prize of hers in command of a public officer, possesses, in the ports of the United States, the right of exterritoriality, and is not subject to the local jurisdiction.1

ful by international

It cannot, therefore, be supposed that when two nations, 5. The rule cannot by both of which these principles of international law had require an act wrona been habitually acted on, recognized, in the first Rule of law. the Treaty of Washington, an obligation to "use due diligence to prevent the departure of a ship intended to cruise," &c., from the "neutral jurisdiction," either of them meant to authorize the other to demand, under any circumstances, a violation of these principles, in the case of any ship cruising as a ship of war by the public authority of a belligerent at the time of her entrance into neutral waters, and which, according to these principles, was there entitled to the privilege of exterritoriality, and was not subject to the neutral jurisdiction. Had an innovation of so important and extraordinary a kind been intended, it would certainly have been unequivocally expressed; and it would have become the plain duty of any neutral State, which had entered into such an engagement, to give notice of it beforehand to all belligerent Powers before it could be put in force to their prejudice. It is impossible that an act which would be a breach of public faith and of international law toward one belligerent could be held to constitute any part of the "diligence due" by a neutral to the other belligerent. The rule says nothing of any obligation to exclude this class of vessels, when once commissioned as public ships of war, from entrance into neutral ports upon the ordinary footing. If they were so excluded by proper notice they would not enter, and the rule (in that case) could never operate to prevent their departure. If they were not so excluded, instead of being "due diligence," it would be a flagrant act of treachery and wrong to take advantage of their entrance in order to effect their detention or capture. Can Her Majesty be supposed to have consented to be retrospectively judged, as wanting in due diligence, because, not having excluded these Confederate ships of war from her ports by any prohibition or notice, she did not break faith with them, and commit an outrage on every principle of justice and neutrality by their seizure? The rules themselves had no existence at the time of the war; the Confederates knew, and could know, nothing of them; their retrospective application cannot make an act ex post facto "due," upon the footing of "diligence," to the one party in the war, which, if it had been actually done, would have been a wholly unjustifiable outrage against the other.

These principles receive illustration from the controversy which took place in Decemcer, 1861, between Brazil and the United States, on the subject of the reception of the Sumter in Brazilian ports. Señor Taques, the Foreign Minister of Brazil, wrote thus to Mr. Webb, the United States Minister at Rio, on the 9th December, 1861:

Some Powers have adopted as a rule not to admit to entry in their ports either the privateers or vessels of war of belligerents; others are holden to do so under the obligations of treaties concluded with some of the belligerents before or during the war.

It has been the practice of the United States to restore prizes, when brought into their ports, if made by ships illegally equipped in their territory, on proof of such illegal equipment in their courts of law; all the world having notice of their rule and practice in this respect. It has not been their rule or practice to seize or detain, on the ground of any such illegal equipment, ships afterward commissioned, and coming into their ports as public ships of war of a recognized belligerent Power.

Brazil has never placed herself in this exceptional condition, but, under the general rule, which admits to the hospitality of her ports ships of war, and even to a privateer compelled by stress to seek it, provided she brings no prizes, nor makes use of her position in such ports for acts of hostility by taking them as the basis for her operations. The rule adopted by civilized nations is to detain in port vessels equipped for war until twenty-four hours after the departure of any hostile vessel, or let them go, requiring from the commanders of vessels of war their word of honor, and from privateers pecuniary security and promise, that they will not pursue vessels which had left port within less than twenty-four hours before them. Nor do the rules of the law of nations nor usage, nor the jurisprudence which results from treaties, authorize a neutral to detain longer than twenty-four hours in his ports vessels of war or privateers of belligerents, unless it could be done by the indirect means of denying them facilities for obtaining in the market the victuals and ship's provisions necessary to the continuance of their voyages. A neutral who should act in this manner, incarcerating in his ports the vessels of one of the parties, would take from one of the belligerents the exercise of his rights, turn himself by the act into an ally and co-operator with the other belligerent, and would ciolate his neutrality.

Without a previous declaration, before the principles adopted in Brazil and in the United States being known, such a proceeding on the part of the Brazilian authorities toward the Sumter would take the character of a snare, which would not meet the esteem or approval of any Government.1

6. There is no rule exclude from his

description.

The absence of any rule obliging a neutral to exclude from his ports foreign ships of war, if originally adapted, wholly or in part, obliging a neutral to to warlike use within the neutral jurisdiction, rests evidently ports ships of this upon good reasons, and cannot have been unintentional. Whatever, as a matter of its own independent discretion and policy, a neutral Government may, at any time, think fit to do in such cases, it will certainly do with all public and proper notice, which cannot be retrospectively assumed to have been given, or agreed to be given, contrary to notorious facts. The reasons, which in some cases might make a policy of this kind just and reasonable, as against a Power which, first infringing the laws of a neutral State by procuring vessels to be illegally equipped within its territory, might afterward employ them in war, would not apply to other cases, which may easily be supposed; e. g., if such a vessel, having been disposed of to new owners after her first equipment, were afterward commissioned by a Power not in any sense responsible for that equipment. The offense is one of persons, not of things; it does not adhere necessarily to the ship into whatever hands she may come; even a ship employed by pirates in their piracy, if she is afterward (before seizure in the exercise of any lawful jurisdiction) actually transferred to innocent purchasers, ceases to have the taint of piracy in the hands of such new owners, as was lately decided by the Judicial Committee of the English Privy Connel in the case of the Dominican ship Telegrafo. Nor, in a question of this kind between Great Britain and the Confederate States, is it possible to assume (in view of the facts that the interpretation of the British prohibitive law was disputed and doubtful, and that international law had never treated the construction, equipment, and dispatch of unarmed ships of war by neutral shipbuilders, to the order of a belligerent, as a violation of the territory or sovereignty of the neutral State) that the authorities of the Confederate States, when they commissioned the ves sels in question, were actually in the situation of a Power which had willfully infringed British law, or British neutrality, within British terri tory.

7. In any view the

Even if the latter part of the first Rule could be construed as the United States suggest, with respect to the subject of the latter part of Rule 1 present chapter, it would not apply to the Georgia—a ship Georst or the Shen- Whose special adaptation, within British jurisdiction, to warlike use, the Tribunal is asked to take for granted without

cannot apply to the

andoah.

1 British App., vol. vi, p. 14.

any evidence, though it is denied by Great Britain, and though the ship actually proved to be unsuitable for such use. Still less could the Rule apply to the Shenandoah, a merchant-ship, transferred to the Confederates, without receiving, within British jurisdiction, auy new equip ment or outfit whatever, of any kind, in order to enable her to cruise or to be employed in the Confederate service. It is clear, beyond controversy, that when the Shenandoah entered the port of Melbourne as a public ship of war of the Confederates, nothing had been done to her, in any part of the British dominions, which could be so much as pretended to be an infringement of the first Rule of the Treaty, or of the law of nations, or of any British law whatever. And yet, in the Argument of the United States (pp. 120, 121) a statement by the United States Consul at Melbourne, in a letter to Mr. Seward, to the effect, that, in some conversation with him, the Colonial Law-Officers had "seemed to admit that she was liable to seizure and condemnation if found in British waters," is gravely brought forward and seriously commented on, as a reason why she ought to have been seized at Melbourne. The Argument of the United States suggests, however, a distinction between "public ships of recognized nations and Sover- 8. The distinction eigus" and "public ships belonging to a belligerent Power suggested by the which is not a recognized State." For such a distinction there tween ships of war of is neither principle nor authority. The passage cited in and ships of a nonthe British Summary (p. 31) from the judgment of Mr. Justice Story, in the case of the Santissima Trinidad, states the true principles applicable to this part of the subject. The ship Independencia del Sud, whose character was there in controversy, had been commissioned by the revolutionary Government of Buenos Ayres :

United States be

recognized nations

recognized State.

"There is another objection," said the learned Judge, " urged against the admission of this vessel to the privileges and immunities of a public ship, which may well be disposed of in connection with the question already considered. It is, that Buenos Ayres has not yet been acknowledged as a sovereign independent Government by the Executive or Legislature of the United States, and, therefore, is not entitled to have her ships of war recognized by our Courts as national ships. We have, in former cases, had occasion to express our opinion on this point. The Government of the United States has recognized the existence of a civil war between Spain and her colonies, and bas avowed a determination to remain neutral between the parties, and to allow to each the same right of asylum and hospitality and intercourse. Each party is, therefore, deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war, and entitled to be respected in the exercise of those rights. We cannot interfere, to the prejudice of either belligerent, without making ourselves a party to the contest, and departing from the posture of neutrality. All captures made by each must be considered as having the same validity; and all the immunities which may be claimed by public ships in our ports under the law of nations must be considered as equally the right of each."

In like manner, in the recent case of the Hiawatha, (a British prize, taken by the United States at the commencement of the late civil war,) when the question arose, whether the civil contest in America had the proper legal character of war, justum bellum, or that of a mere domestic revolt, and was decided by the majority of the Supreme Court of the United States in accordance with the former view, Mr. Justice Grier, delivering the opinion of the majority, said:

It is not the less a civil war with belligerent parties in hostile array because it may be called an "insurrection" by one side, and the insurgents be considered as rebels or traitors. It is not necessary that the independence of the revolted province or State be acknowledged, in order to constitute it a party belligerent in a war, according to the law of nations. Foreign nations acknowledge it as war by a declaration of neutrality. The condition of neutrality cannot exist unless there be two belligerent parties. In the case of the Santissima Trinidad (7 Wheaton, 337) this court says: The Government of the United States has recognized the existence of a civil war be. tween Spain and her colonies, and has avowed her determination to remain neutra]

between the parties. Each party is therefore deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war."

Professor Bluntschli, in a contribution to the "Revue de droit international" for 1870. (pp. 452-470,) in which, upon the assumptions of fact contained in a speech of Mr. Summer in the Senate of the United States, (and on those assumptions only,) he favors some part of the claims of the United States against Great Britain, so far as relates to the particular ship Alabama, distinctly lays down the same doctrine:

Du reste, le parti révolté, qui opère avec des corps d'armée militairement organisés, et entreprend de faire triompher par la guerre un programme politique, agit, alors même qu'il ne forme point un état, tout au moins comme s'il en constituait un, an lieu et place d'un état ("an Staates statt"). Il affirme la justice de sa cause, et la légitimité de sa mission, avec une bonne foi égale à celle qui se présume de droit chez tout état belligérant. (Pages 455–456.)

Again:

Pendant la guerre on admet, dans l'intérêt de l'humanité, que les deux parties agissent de bonne foi pour la défense de leurs prétendus droits. (Page 455.)

And, at pages 461, 462:

Si l'on tient compte de toutes ces considérations, on arrive à la conclusion suivante: états éuropéens, en présence de la situation que créaient les faits, la lutte engagé C'est que, à considérer d'un point de vue impartial, tel qu'il s'offrait et s'imposait aus entre l'union et la confédération, c'est-à-dire, entre le ford et le sud, il était absolument impossible de ne pas admettre que les états-Unis fussent alors engagés dans une grande guerre civile, où les deux partis avaient le caractère de puissances politiquement et militairement organisées, se faisant l'une à l'autre la guerre, suivant le mode que le droit des gens reconnaît comme régulier, et animés d'une égale confiance dans le bon droit. Tout le monde était d'accord qu'il y avait guerre, et que, dans cette guerre, il y avait deux parties belligérantes.

commissioned ships of war.

That all the vessels of which there is any question before the Arbi9. All the ships in trators, and especially those which are alleged to have been a lestion, were dus equipped or adapted for warlike uses within British territory. were, in fact, commissioned and employed as public ships of war by the authorities then exercising the powers of public Government in the Confederate States, is not seriously (if it be at all) disputed by the United States. The proofs of it abound both elsewhere and in those intercepted letters from Confederate authorities, and other Confederate documents, (such as the Journal of Captain Semmes, &c.,) which the United States have made part of their evidence; and to which, for this purpose at all events, they cannot ask the Arbitrators to refuse credit. All these vessels were always received as public ships of war in the ports of France, Spain, the Netherlands, Brazil, and other countries.

"As to the Florida," said the Marquis d'Abrantes, the Foreign Minster of Brazil, writing to Mr. Webb on the 22d June, 1863, "the undersigned must begin by asking Mr. Webb's consent to observe that if the President of Pernambuco knew that that steamer was the consort of the Alabama, as was also the Georgia, it does not follow. as Mr. Webb otherwise argues, that the said President should consider the Florida as a pirate.

"According to the principles of the neutrality of the Empire, to which the undersigned has already alluded, all these vessels of the Confederate States are vessels of war, exhibiting the flag and bearing the commission of the said States, by which the Imperial Government recognized them in the character of belligerents." 2

Upon the same footing the Shenandoah was delivered up to the United States, as public property, when she arrived at Liverpool after

See Appendix to Case of the United States, vol. ii, pp. 486, 487, (Sumter ;) ibid., pp. 550, 551, (Nashville ;) ibid., pp. 614, 633, and vol. i, p. 543, (Florida ;) vol. vi, p. 456, (Ala bama;) vol. ii, pp. 673, 680, 713, (Georgia;) vol. iii, p. 332, &c., (Shenandoah;) also Mr. Benjamin's instructions, vol. i, pp. 621, 624.

* British App., vol. vi, pp. 59, 60.

the conclusion of the war. And though the terms "pirates" and privateers" have been freely applied to these vessels in many of the public and other documents of the United States, the former term was only used as a vituperative or argumentative expression, in aid of the objections of the United States to the recognition, by foreign Powers, of the belligerent character of the Confederates. Neither Captain Semmes, of the Alabama, nor any other officer or seaman engaged in the naval service of the Confederates, was ever, during the war or after its conclusion, actually treated as a pirate by any political or other author ity of the United States. And with respect to the denomination of "privateer," a privateer is a vessel employed by private persons, under letters of marque from a belligerent Power, to make captures at sea for their private benefit. None of the vessels in question, at any moment of their history, can be pretended to have had that character.

CHAPTER III.-ON THE SPECIAL QUESTION OF SUPPLIES OF COAL TO CONFEDERATE VESSELS IN BRITISH PORTS.

The next point which remains is that as to the supplies of coal in British ports to Confederate cruisers.

ceived such supplies.

That such supplies were afforded equally and impartially, so far as the regulations of the British Government and the inten- 1. Both parties in tions and voluntary acts of the British colonial authorities the war equally reare concerned, to both the contending parties in the war, and were obtained, upon the whole, very much more largely by the ships of war of the United States than by the Confederate cruisers, are facts which ought surely to be held conclusive against any argument of the United States against Great Britain founded on these supplies. That such arguments should be used at all can hardly be explained, unless by the circumstance that they are found in documents maintaining the propositions that the belligerent character of the Confederates ought never to have been recognized, and that impartial neutrality was itself, in this case, wrongful. Let those propositions be rejected, and their own repeated acts in taking advantage of such supplies (sometimes largely in excess of the limited quantities allowed by the British regu lations) are conclusive proof that the United States never, during the war, held or acted upon the opinion that a neutral State, allowing coal to be obtained by the war-vessels of a belligerent in its ports, whether with or without any limitation of quantity, was guilty of a breach of neutrality or of any obligation of international law.

That such supplies might be given, consistently with every hitherto recognized rule or principle of international law is abundantly clear. Chancellor Kent, in his commentaries, first lays down the rule against using neutral territory as a base of warlike operations, as that rule had been understood and acted neutral territory as upon, both in Great Britain and in America:

2. Such supplies are not within the rule as to not using

a base of operations.

It is a violation of neutral territory for a belligerent ship to take her station within it, in order to carry on hostile expeditions from thence, or to send her boats to capture vessels being beyond it. No use of neutral territory, for the purpose of war, can be permitted. This is the doctrine of the Government of the United States. It was declared judicially in England, in the case of the Twee Gebroeders; and, though it was not understood that the prohibitions extended to remote objects and uses, such as procuring provisions and other innocent articles, which the law of nations tolerated, yet it was explicitly declared that no proximate acts of war were in any manner to be allowed