hostile operations, the test we have applied has not been the extent and character of the preparations, but the intent with which the particular acts are done. . . . Is the intent one to prepare an article of contraband merchandise, to be sent to the market of a belligerent subject to the chances of capture and of the market? Or, on the other hand, is it to fit out a vessel which shall leave our port to cruise immediately or ultimately, against the commerce of a friendly nation? The latter we are bound to prevent. The former the belligerent must prevent." 1 It is a grave question whether the principle that "the intent is all" furnishes a workable rule in the complicated cases that frequently arise during the progress of a war. Nothing is more difficult to prove than intentions. They have frequently to be inferred from actions of an ambiguous character. Moreover, the two intents that of selling and that of making war- may coexist in the same mind. Dana himself must have had some misgivings about the rule he champions so ably; for he admits that "the line may often be scarcely traceable," though he hastens to add that "the principle is clear enough." 2 But surely a line that is often scarcely traceable is not a very advantageous boundary between the permitted and the forbidden, and a principle that requires subtle psychological distinctions for its due application is fitter for the lecture-room of a Professor of Mental Philosophy than the Bench of a Court of Law. To what refinements it may lead in practice the case of the United States v. Quincy shows. The Court distinguished carefully between a fixed and present intent and a contingent or conditional intent, and ruled that an intent to go to the West Indies and endeavor to procure funds for a belligerent cruise was a contingent intent, and therefore innocent, whereas an intent to go on a belligerent cruise that was liable to be defeated by failure to obtain the necessary funds 1 Note 215 to Wheaton's International Law, pp. 562, 563. 3 Peters, Reports of the Supreme Court, VI., 445. in the West Indies was a fixed and present intent, and therefore guilty. The objections to the doctrine which makes everything turn upon intent are well put by Mr. W. E. Hall. After enforcing them with his usual learning and ability, he suggests as an alternative principle that the character of the ship should be the test. He would lay upon the neutral the duty of preventing the departure from its ports of "vessels built primarily for warlike use," if they were destined for the service of either belligerent; while he would leave unmolested "vessels primarily fitted for commerce."1 Experts can tell almost from the laying of the keel the difference between the two classes of ships. No doubt some commercial vessels can be adapted for war with greater or less ease; but belligerents would do well to submit to the free sale and issue of such ships in consideration of the total prohibition of the construction of war-vessels for their opponents. In the same way neutrals would find it advantageous to purchase freedom of commercial ship-building and entire immunity from belligerent reproaches by the sacrifice during hostilities of their trade with the contending powers in ships of war. The suggested rule is free from all the perplexities connected with decision by intent, and would involve less interference with neutral ship-building than the British Foreign Enlistment Act of 1870, which is administered with vigor and success in the present conflict between China and Japan. § 263. The question is still far from settlement. The old principles have been thoroughly discredited and the maritime powers have come to no agreement upon new The three rules of ones. The three rules of the Treaty of Wash- Washington and ington of 1871, and the award given by the Geneva Tribunal in the following year, ought to 1 Hail, International Law, § 225 and notes. the Treaty of the award of the Geneva Tribunal. have cleared up the difficulty, but unfortunately they did nothing of the kind. The limits of neutral liability for the escape of belligerent vessels are not more clearly defined than they were before; and on this and other points the decision of the arbitrators, though it settled the case before them, has not met with general acceptance as containing desirable regulations for the future conduct of belligerents and neutrals in their mutual relations. By the sixth article of the Treaty of Washington,1 the arbitrators appointed to settle the chief questions at issue between Great Britain and the United States were to be governed in their decision by three rules set forth in the article and the principles of International Law not inconsistent therewith. Great Britain consented to be judged by the rules in question, though she held that they were not part of the law of nations at the time when the events complained of took place; and both parties agreed to observe the rules as between themselves in future and to invite other maritime powers to accede to them. The three rules were as follows: "A neutral government is bound: "First. To use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use. 66 Secondly. Not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men. 1 Treaties of the United States, 481. "Thirdly. To exercise due diligence in its own ports and waters and as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties." No sooner had the treaty which contained these rules been signed than disputes arose as to the meaning of some of the expressions and clauses in them. The difficult question of "due diligence" gave rise to long discussions and cannot be said to have been satisfactorily settled at last. We have already reproduced the various interpretations placed upon the phrase;1 and we have also endeavored to indicate the characteristic features of a "base of naval operations," 2 as to which British and American ideas differed considerably. But perhaps the most hotly disputed point is concerned with the latter portion of the first rule, which binds the neutral to use due diligence to "prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use." Three different interpretations were placed upon the words in question. Great Britain contended that they referred only to the original departure of the peccant vessel with her sins fresh upon her, and could not be intended to impose upon the government of the injured neutral the obligation of seizing her if she afterwards visited any of its ports as a duly commissioned ship of war. Such a course, it was argued, would be in itself a violation of International Law, which conferred upon all lawful belligerent cruisers immunity from local jurisdiction when visiting the ports of states with which their own country was at peace. The United States admitted that a commission emanating from a recognized power protected the vessel bearing it from all subsequent proceedings against her by a neutral whose neutrality she 1 See § 259. 2 See § 250. 3 See British Case, Pt. III.; the Argument of Sir R. Palmer before the Geneva Tribunal; and Reasons of Sir A. Cockburn for Dissenting from the Award, 148-156 had violated; but they declared that this immunity did not apply to vessels of a warring community, recognized as a belligerent, but without recognition as a sovereign state. Such ships might be exempt from judicial process and the jurisdiction of neutral courts, but not from the control of the neutral executive, which was bound to seize them whenever they entered its ports, if they had been illegally fitted out, armed or equipped within its jurisdiction, or had received therein any addition to their effective power of doing injury to their foes.1 The Arbitral Tribunal went further than the advocates of the United States, and accepted their interpretation without the limitations they had placed upon it. The Award laid down that the effects of a violation of neutrality are not done away with by any commission which the guilty vessel may acquire from a belligerent government, and laid upon the injured neutral the duty of seizing such vessels on any subsequent visit to her ports, even though they belonged to recognized and old-established sovereign states.2 There can be no doubt that as a general rule the commission of a belligerent power exempts the ship which bears it from proceedings against her in the ports of other states. The decision of Chief Justice Marshall in the case of the Exchange is decisive on this point. On proof that the vessel had been duly commissioned by Napoleon I., he declined to try in an American court the legality of her original seizure by the French Government when she was owned by an American citizen and lay in a Spanish port. But the question whether this rule applies to vessels who have no recognized government behind them to be responsible for their misdeeds, and applies so far as to shield them from executive action on the part of the state whose neutrality they have 1 See American Case, Pt. III.; and the Argument of Mr. Evarts before the Geneva Tribunal. 2 See Award of the Geneva Tribunal, Recitals 4, 5, 6, 10, 14. 8 Cranch, Reports of U. S. Supreme Court, VII., 116. |