the law of nations according as they have relation or not with facts and acts which, collectively, make up the use of the neutral ports and waters as "the bases of naval operations" by belligerents. Accordingly, the argument of the eminent Counsel does not stop with so easy a disposi tion of the subject of coaling, but proceeds to discuss the whole question of base of operations-what it means, what it does not mean, the inconvenience of a loose extension of its meaning; the habit of the United States in dealing with the question both in acts of Government and the practice of its cruisers; the understanding of other nations, giving the instances arising on the correspondence with Brazil on the subject of the Sumter; and produces as a result of this inquiry the conclusion, that it was not the intention of the second Rule of the Treaty to limit the right of asylum.

In regard to the special treatment of this subject of coaling provided by the Regulations established by the British Government in 1862, it is urged that they were voluntary regulations, that the essence of them was that they should be fairly administered between the parties, and that the rights of asylum or hospitality in this regard should not be exceeded. Now, this brings up the whole question, the use of neutral ports or waters as a "base of naval operations" which is proscribed by the second Rule of the Treaty.

Yon will observe that while the first Rule applies itself wholly to the particular subject of the illegal outfit of a vessel which the neutral had reasonable ground to believe was to be employed to cruise, et cet., or to the detention in port of a vessel that was in whole or in part adapted for war-while the injunction and duty of the first Rule are thus limited, and the violation of it, and the responsibility consequent upon such violation, are restricted to those narrow subjects, the proscription of the second Rule is as extensive as the general subject, under the law of nations, of the use of ports and waters of the neutral as the basis of naval operations, or for the renewal or augmentation of military supplies, or the recruitment of men.

What, then, is the doctrine of hospitality or asylum, and what is the doctrine which prohibits the use (under cover of asylum, The doctrine of under cover of hospitality, or otherwise) of neutral ports and asylum considered. waters as bases of naval operations? It all rests upon the principle that, while a certain degree of protection or refuge, and a certain peaceful and innocent aid, under the stress to which maritime voyages are exposed, are not to be denied, and are not to be impeached as unlawful, yet anything that under its circumstances and in its character is the use of a port or of waters for naval operations is proscribed although it may take the guise, much more if it be an abuse, of the privilege of asylum or hospitality.

There is no difference in principle, in morality, or in duty, between neutrality on land and neutrality at sea. What, then, are the familiar rules of neutrality within the territory of a neutral, in respect to land warfare?

tral on land and his

Whenever stress of the enemy, or misfortune, or cowardice, or seeking an advantage of refreshment, carries or drives one of Analogy between the belligerents or any part of his forces over the frontier the duties of a neuinto the neutral territory, what is the duty of the neutral? duties at sea. It is to disarm the forces and send them into the interior till the war is over. There is to be no practicing with this question of neutral territory. The refugees are not compelled by the neutral to face their enemy; they are not delivered up as prisoners of war; they are not surrendered to the immediate stress of war from which they sought

refuge. But from the moment that they come within neutral territory they are to become non-combatants, and they are to end their relations to the war. There are familiar examples of this in the recent history of Europe.

What is the doctrine of the law of nations in regard to asylum, or refuge, or hospitality, in reference to belligerents at sea during war? The words themselves sufficiently indicate it. The French equivalent of "relâche forcée" equally describes the only situation in which a neutral recognizes the right of asylum and refuge; not in the sense of shipwreck, I agree, but in the sense in which the circumstances of ordinary navigable capacity to keep the seas, for the purposes of the voyage and the maintenance of the cruise, render the resort of a vessel to a port or ports suitable to, and convenient for, their navigation, under actual and bona fide circumstances requiring refuge and asylum.

Limitation of the right of commercial dealings in contra

There is another topic which needs to be adverted to before I apply the argument. I mean the distinction between commercial dealing in the uncombined materials of war and the conband of war. tribution of such uncombined materials of war, in the service of a belligerent, in making up military and naval operations, by the use of neutral territory as the base of those contributions. What are really commercial transactions in contraband of war are allowed by the prac tice of the United States and of England equally, and are not understood to be proscribed, as hostile acts, by the law of nations, and it is agreed between the two countries that the second Rule is not to be extended to embrace, by any largeness of construction, mere commercial transactions in contraband of war.

Sir ALEXANDER COCKBURN. "Then I understand you to concede that the private subject may deal commercially in what is contraband of war?"

Mr. EVARTS. I will even go further than that and say that commercial dealings or transactions are not proscribed by the law of nations as violations of neutral territory, because they are in contraband of war. Therefore I do not need to seek any aid in my present purpose of exhibiting the transactions under the second Rule by these cruisers, as using Great Britain as the base for these naval operations, from any construction of that rule which would proscribe a mere commercial dealing in what is understood to be contraband of war. Such is not the true sense of the article, nor does the law of nations proscribe this com Use of a neutral mercial dealing as a hostile act. But whenever the neutral port as a base of hos- ports, places, and markets are really used as the bases of naval operations, when the circumstances show that resort and that relation and that direct and efficient contribution and that complicity and that origin and authorship, which exhibit the belligerent himself, drawing military supplies for the purpose of his naval operations from neutral ports, that is a use by a belligerent of neutral ports and waters as a base of his naval operations, and is prohibited by the second Rule of the Treaty. Undoubtedly the inculpation of a neutral for permitting this use turns upon the question whether due diligence has been used to prevent it.

tile operations: what it is.

The argument upon the other side is that the meaning of "the base of operations," as it has been understood in authorities relied upon by both nations, does not permit the resort to such neutral ports and waters for the purpose of specific hostile acts, but proceeds no further. The illustrative instances given by Lord Stowell or by Chancellor Kent in support of the rule are adduced as being the measure of the rule. These examples are of this nature: A vessel cannot make an ambush

for itself in neutral waters, cannot lie at the mouth of a neutral river to sally out to seize its prey, cannot lie within neutral waters and send its boats to make captures outside their limits. All these things are proscribed. But they are given as instances, not of flagrant, but of incidental and limited use. They are the cases that the commentators cite to show that even casual, temporary, and limited experiments of this kind are not allowed, and that they are followed by all the definite consequences of an offense to neutrality and of displeasure to a neutral, to wit, the resort by such neutral power to the necessary methods to punish and redress these violations of neutral territory.

Now let us see how we may, by examples, contrast the asylum or hospitality in matter of coal or similar contributions in aid of navigable capacity, with the use of neutral ports as a base of naval operations.

In the case of the

I will not trespass upon a discussion of questions of fact. The facts are wholly within your judgment, and are not embraced in the present argument. But take the coaling of the Nash- Nashville. ville. The Nashville left Charleston under circumstances not in dispute, and I am not now considering whether Great Britain is or is not responsible in reference to that ship in any other matter than that of coaling, which I will immediately introduce to your attention.

The Nashville having a project of a voyage from Charleston, her home port, to Great Britain, in the course of which she proposed to make such captures as might be, intended originally to carry out Mason and Slidell, but abandoned this last intention before sailing, as exposing these Commissioners to unfavorable hazard from the blockading squadron. This was the project of her voyage, those the naval operations which she proposed to herself. How did she prepare within her own territory, to execute that project of naval warfare? She relied substantially upon steam, and in order to be sure of going over the bar, under circumstances which might give the best chance of eluding the vigilance of the blockaders, she took only two days' supply of coal, which would carry her to Bermuda. The coal was exhausted when she got there; she there took in six hundred tons.

Sir ALEXANDER COCKBURN. "I believe, Mr. Evarts, that the figure six afterward came down to five."

Mr. EVARTS. For the purpose of my present argument, it is quite immaterial.

Mr. WAITE. "It was subsequently proved to be four hundred and fifty tons."

Mr. EVARTS. Very well. She had no coal, and she took four hundred and fifty tons or more on board to execute the naval operation which she projected when she left Charleston and did not take the means to accomplish, but relied upon getting them in a neutrel port to enable her to pursue her cruise. Now, the doctrine of relâche forcée, or of refuge, or of asylum, or of hospitality, has nothing to do with a transaction of that kind. The vessel comes out of a port of safety at home, with a supply from the resources of the belligerent that will only carry it to a neutral port, to take in there the means of accomplishing its projected naval operations. And no system of relief in distress, or of allowing supply of the means of taking the seas for a voyage interrupted by the exhaus tion of the resources originally provided, have anything to do with a case of this kind. It was a deliberate plan, when the naval operation was meditated and concluded upon, to use the neutral port as a base of naval operations, which plan was carried out by the actual use of neutral territory as proposed.

Now we say, that if this Tribunal, upon the facts of that case, shall

find that this neutral port of Bermuda was planned and used as the base of the naval operations, projected at the start of the vessel from Charleston, that that is the use of a neutral port as a base for naval operations. On what principle is it not? It is true that the distance of the projected naval operation, or its continuance, makes a difference in prin ciple as to the resort to establish a base in neutral territory or to obtain supplies from such a base? Why, certainly not. Why, that would be to proscribe the slight and comparatively harmless abuses of neutral territory, and to permit the bold, impudent, and permanent application of neutral territory to belligerent operations. I will not delay any further upon this illustration.

In the case of the

Let us take next the case of the Shenandoah, separating it from any inquiries as to culpable escape or evasion from the original Shenandoah. port of Liverpool. The project of the Shenandoah's voyage is known. It was formed within the Confederate territory. It was that the vessel should be armed and supplied, that she should make a circuit, passing round Cape Horn or the Cape of Good Hope, that she should put herself on reaching the proper longitude in a position to pursue her cruise to the Arctic Ocean, there to make a prey of the whaling fleet of the United States. To break up these whaling operations and destroy the fleet was planned under motives and for advantages which seemed to that belligerent to justify the expense, and risk, and perils of the undertaking. That is the naval operation, and all that was done inside the belligerent territory was to form the project of the naval oper ation and to communicate authority to execute it to the officers who were outside of that territory.

Now, either the Shenandoah, if she was to be obtained, prepared, armed, furnished, and coaled for that extensive naval operation, was to have no base for it at all, or it was to find a base for it in neutral ports.

It is not a phantom ship, and it must have a base. Accordingly, as matter of fact, all that went to make up the execution of that operation of maritime war was derived from the neutral ports of Great Britain. The ship was thence delivered and sallied forth

Sir ALEXANDER COCKBURN. "But that was not known to the Government."

Mr. EVARTS. I am now only showing that this occurred as matter of fact. The question whether it was known to or permitted by the Gov ernment of Great Britain, as the Chief Justice suggests, is of an entirely different aspect, involving the considerations of due diligence to prevent. The ship, then, was furnished from neutral ports and waters. It resorted to Madeira to await the arrival of the Laurel, which, by con cert and employment in advance of the sailing of the Shenandoah, was to take the armament, munitions of war, officers, and a part of the crew to complete the Shenandoah's fitness to take the seas as a ship of war to execute the naval project on which she originally sailed, and which were transferred from ship to ship at sea. The island of Madeira served only as rendezvous for the two vessels, and if there had been occasion, as in fact there was not, might have furnished shelter from storms, Thus made a fighting-ship from these neutral ports, as a base, and furnished from the same base with the complete material for the naval operation projected, the Shenandoah made captures, as without interruption of her main project she might, rounded the Cape of Good Hope and came to Melbourne, another British port, whence she was to take her last departure for her distant field of operations, the waters of the whaling fleet of the United States in the Arctic Ocean.

Sir ROUNDELL PALMER. "I did not, Mr. Evarts, enter upon a treatment of each of the vessels."

Mr. EVARTS. I am only showing that this ship did use your ports for the purposes of its operations.

Sir ROUNDELL PALMER. "But, Mr. Evarts, I only mentioned these vessels."

Mr. EVARTS. You discussed the question of base of naval operations. There she obtained as matter of fact four hundred and fifty tons of coal, or something of that kind, and forty men, and without both of these, as well as important repairs of her machinery, she could not have carried out the naval project on which she had started. The coal taken at Melbourne was sent by appointment from Liverpool, and was there to complete her refitment. The naval operation would have failed if the vessel had not received the replenishment of power and resources at Melbourne as a base. Now, this Shenandoah was able to sail sixteen knots an hour.

Sir ALEXANDER COCKBURN. "Do you mean to say sixteen knots an hour? That is faster than any vessel I have ever heard of."

Mr. EVARTS. Well, we will not dispute about the facts. There is no doubt, however, that it is so-she sailed on one occasion over three hundred and twenty miles in twenty-four hours.

Lord TENTERDEN. "But that is not sixteen knots an hour."

Mr. EVARTS. I have not said that she had sailed twenty-four consecutive hours at the rate of sixteen knots. But she could sail sixteen knots an hour, and she could only steam ten knots an hour. I have not invented this. Her remarkable qualities are stated in the proofs. Her steam-power was not necessary to her navigation or her speed, however, except to provide against calms, and give assurance of constancy of progress in adverse weather. Her great advantage, however, was in being one of the fastest sailing ships ever built. The great importance of her having abundance of coal at the contemplated scene of her naval operations was, that she might capture these poor whalers, who understood those perilous seas, and if they could only get up steerage way, would be able to elude her.

Sir ALEXANDER COCKBURN. "What! if she sailed sixteen knots an hour!"

Mr. EVARTS. If the Chief Justice will mark the circumstances of Arctic navigation, he will understand that, by means of their knowledge of the ice and the region generally, they could seek shelter by interposing barriers between themselves and their pursuer. They did, however, become her prey; but it was only when she found them becalmed. Now, this case of the Shenandoah illustrates by its career, on a large scale, the project of a belligerent in maritime war, which sets forth a vessel and furnishes it complete for war, plans its naval operations and executes them, and all this from neutral ports and waters as the only base, and as a sufficient base. Melbourne was the only port from which the Shenandoah received anything after its first supply from the home ports of Great Britain, and it finally accomplished the main operation of its naval warfare by means of the coaling and other refitment at Melbourne. Whether it could rely for the origin of its naval power, and for the means of accomplishing its naval warfare, upon the use of neutral ports and waters, under the cover of commercial dealings in contraband of war, and under the cover of the privilege of asylum, was the question which it proposed to itself, and which it answered for itself. It is under the application of these principles that the case of the Shenandoah is supposed to be protected from being a violation of the law of nations,