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OBLIGATION OF NEUTRAL TO PREVENT FITTING OUT OR ARMING OF HOSTILE VESSEL AS WELL AS DEPARTURE OF VESSEL SO FITTED OUT OR ARMED.

A neutral Government is bound to employ the means at its disposal to prevent the fitting out or arming of any vessel within its jurisdiction which it has reason to believe is intended to cruise, or engage in hostile, operations, against a Power with which that Government is at peace. It is also bound to display the same vigilance to prevent the departure from its jurisdiction of any vessel intended to cruise, or engage in hostile operations, which had been adapted entirely or partly within the said jurisdiction for use in war.-Hague Convention XIII, 1907, Article 8.

Furthermore, the neutral State is bound to exercise vigilance to prevent other persons from placing war vessels at the disposal of any of the belligerent States in its ports or in those portions of the sea subject to its jurisdiction.

When the neutral State is aware of enterprises or acts of this kind, incompatible with neutrality, it is bound to take the necessary measures to prevent them, and to prosecute the individuals who violate the duties of neutrality, as the guilty parties.

Institute, 1875, p. 13.

The government of the United States was warranted by the law and practice of nations, in the declarations made in 1793, of the rules of neutrality, which were particularly recognized as necessary to be observed by the belligerent powers, in their intercourse with this country. These rules were, that the original arming or equipping of vessels in our ports, by any of the powers at war, for military service, was unlawful; and no such vessel was entitled to an asylum in our ports. The equipment by them of government vessels of war, in matters which, if done to other vessels, would be applicable equally to commerce or war, was lawful. The equipment by them of vessels fitted for merchandise and war, and applicable to either, was lawful; but if it were of a nature solely applicable to war, it was unlawful. Kent, vol. 1, p. 129-130.

The testimony of these [Wolfius and Vattel] and other writers on the law and usage of nations was sufficient to show, that the United States, in prohibiting [in 1793] all the belligerent powers from equipping, arming, and manning vessels of war in their ports, had exercised a right and a duty with justice and moderation.

Dana's Wheaton, p. 533.

These duties of neutrality extend not only to preventing the arming of cruisers in neutral ports, and the enlistment of men in neutral territory, but also to the general sanctity of neutral jurisdiction, by redressing all injuries which one belligerent may commit upon the other within its limits.

Halleck, p. 516.

At the commencement of the European war, in 1793, the government of the United States took strong grounds against the arming and equipping of vessels within the ports of the United States, by the respective belligerent powers, to cruise against each other, declaring such acts to be a violation of neutral rights, and positively unlawful; and that any vessel, so armed or equipped in our ports, for military service, was not entitled to the rights of asylum. The authority of Wolfius, Vattel and other writers on the law and usage of nations, were appealed to, in support of these declarations and rules of neutrality. The ground then assumed by the United States is now generally admitted to be correct.

Halleck, pp. 524-525.

Illegal equipment and outfit, in violation of neutral immunity, will not affect the validity of captures made after the cruise, to which the outfit, had been applied is actually terminated. The offense is deemed to be deposited at the termination of the voyage, and does not affect future transactions. This rule would result from analogy to other cases of violation of public law, and has been directly announced by the U. S. supreme court.

Halleck, pp. 533-534, The Santissima Trinidad, 7 Wheaton, 348.

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It is a violation of neutrality, for a neutral state to suffer its subjects to prepare, or to aid in preparing or augmenting, any hostile expedition against a friendly power, as for instance to build, arm, or man ships of war with such a purpose in view, or to build them with this intent so far as to make them ready for an armament to be put on board upon the high seas or in some neutral port.

Woolsey, p. 275.

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It was formerly thought that the neutral might allow * preparation of hostile expeditions in his harbors, if he granted the same to both sides. All now admit that the neutral ought to refuse any of these privileges, and must be the sole judge in the case. Woolsey, pp. 278, 279.

The distinction between fitting out and arming ships of war for the service of a belligerent, which is not permissible, and selling to such belligerent ships to be converted into men-of-war and munitions of war, which is permissible, may be thus explained: It is not indictable for a gunsmith to sell a pistol to a party who may use it unlawfully, even though the vendor may have reasons to suspect the object of the purchase. It would, however, be unlawful for the gunsmith to join in arranging a machine by which a specific unlawful purpose is to be achieved. It is not unlawful, in other words, to be concerned in preparations which will not, unless diverted by an independent force, produce a violation of law. It is, however, unlawful

to be concerned in putting in actual operation dangerous machines. He who is concerned in fitting out and arming a man-of-war for the purpose of preying on the commerce of a friendly state, or of attacking its armed ships or ports, is as much concerned in the attack as he who takes part in manufacturing and planting a torpedo in a frequented channel is responsible for the mischief done by the torpedo. This distinction has been already asserted in the cases which rule that it is an indictable offense to be concerned in counseling and aiding a specific attack, but not an indictable offense to be concerned in selling arms by which such attack is to be made.

Wharton, Int. Law Digest, vol. 3, p. 525.

The evidence tending to show that general opinion already looked upon the outfit and manning of cruisers by private persons as compromising the neutrality of a state, mainly consists in the neutrality edicts which were issued shortly after this time [1777] on the outbreak of actual war between England and France. Venice, Genoa, Tuscany, the Papal States, and the Two Sicilies, subjected any person arming vessels of war or privateers in their ports to a fine; and in 1779 the States-General of the United Provinces issued a placard reciting that it was suspected that subjects of the state had equipped and placed on the sea armed vessels under a belligerent flag, and declaring such conduct to be contrary to the law of nations, and to the duties binding on subjects of a neutral power'.

Hall, p. 613.

The policy of the United States in 1793 constitutes an epoch in the development of the usages of neutrality. There can be no doubt that it was intended and believed to give effect to the obligations then incumbent upon neutrals. But it represented by far the most advanced existing opinions as to what those obligations were; and in some points it even went further than authoritative international custom has up to the present time advanced. In the main however it is identical with the standard of conduct which is now adopted by the community of nations.

Hall, p. 616.

It has been proposed to stretch the liability of a neutral sovereign so as to make him responsible for the ultimate effect of two independent acts done within his jurisdiction, each in itself innocent, but intended by the persons doing them to form part of a combination having for its object the fitting out of a warlike expedition at some point outside the neutral state. The argument upon which this proposal rests has been shortly stated as follows:

The intent covers all cases, and furnishes the test. It must be immaterial where the combination is to take place, whether here or elsewhere, if the acts done in our territory-whether acts of building, fitting, arming, or of procuring materials for those acts-be done as part of a plan by which a vessel is to be sent out with intent that she shall be employed to cruise.'

In accordance with this view, it was contended on the part of the United States before the Tribunal of Arbitration at Geneva that the Alabama and Georgia, two vessels in the Confederate service, were in effect 'armed within British jurisdiction.' The Alabama left

Liverpool wholly unarmed on July 29, 1862, and received her guns and ammunition at Terceira, partly from a vessel which cleared a fortnight later from Liverpool for Nassau in the Bahamas, and partly from another vessel which started from London with a clearance for Demerara. In like manner the Georgia cleared from Glasgow for China, and received her armament off the French coast from a vessel which sailed from New Haven in Sussex.

The intent of acts, innocent separately, but rendered by this theory culpable when combined, can only by their nature be proved when the persons guilty of them are no longer within neutral jurisdiction. They cannot therefore be prevented by the state which is saddled with responsibility for them; and this responsibility must mean either that the neutral state will be held answerable in its own body for injury suffered by the belligerent, in which case it will make amends for acts over which it has had no control, or else that it is bound to exact reparation from the offending belligerent, at the inevitable risk of war.

If this doctrine were a legal consequence of the accepted principles of international law it might be a question whether it would not be wise to refuse operation to it on the ground of undue oppressiveness to the neutral. But no such difficulty arises; for, as responsibility is the correlative of power, if a nation is to be responsible for innocent acts which become noxious by combination in a place outside its boundaries, it must be enabled to follow their authors to the place where the character of the acts becomes evident, and to exercise the functions of sovereignty there. But even on the high seas it is not permissible for a non-belligerent state to assume control over persons other than pirates or persons on board its own ships; and within foreign territory it has no power of action whatever.

The true theory is that the neutral sovereign has only to do with such overt acts as are performed within his own territory, and to them he can only apply the test of their immediate quality. If these are such in themselves as to violate neutrality or to raise a violent presumption of fraud, he steps in to prevent their consequences; but if they are presumably innocent, he is not justified in interfering with them. If a vessel in other respects perfectly ready for immediate warfare is about to sail with a crew insufficient for fighting purposes, the neutral sovereign may reasonably believe that it is intended secretly to fill up the complement just outside his waters. Any such completion involves a fraudulent use of his territory, and an expectation that it is intended gives him the right of taking precautions to prevent it. But no fraudulent use takes place when a belligerent in effect says: I will not compromise your neutrality, I will make a voyage of a hundred miles in a helpless state, I will take my chance of meeting my enemy during that time, and I will organise my expedition when I am so far off that the use of your territory is no longer the condition of its being.

Hall, pp. 631-634.

It is somewhat difficult to determine under what obligations a neutral state lies with respect to vessels of war and vessels capable of being used for warlike purposes, equipped by or for a belligerent within its dominions.

1. Is the mere construction and fitting out, in such manner that they shall be capable of being used by him for warlike purposes, an international offence? or,

2. Is such construction to be looked upon as an act of legitimate trade; and is it necessary, to constitute an international offence, that some further act shall be done, so as to make such vessels elements in an expedition?

The direct logical conclusions to be obtained from the ground principles of neutrality go no further than to prohibit the issue from neutral waters of a vessel provided with a belligerent commission, or belonging to a belligerent and able to inflict damage on his enemy. A commission is conclusive evidence as to the fact of hostile intent; and in order to satisfy the alternative condition it is not necessary that the ship shall be fully armed or fully manned. A vessel intended to mount four guns and to carry a crew of two hundred men would be to an unarmed vessel sufficiently formidable with a single gun and half its complement of seamen. But to possess any force at all, it must possess a modicum of armament, and it must have a crew sufficient at the same time to use that armament and to handle the ship. If then the vessel seems at the moment of leaving the neutral port to fulfil these conditions, the neutral must, judging from the facts, infer a hostile intent, and prevent the departure of the expedition.

On the other hand, it is fully recognised that a vessel completely armed, and in every respect fitted the moment it receives its crew to act as a man of war, is a proper subject of commerce. There is nothing to prevent its neutral possessor from selling it, and undertaking to deliver it to the belligerent either in the neutral port or in that of the purchaser, subject to the right of the other belligerent to seize it as contraband if he meets it on the high seas or within his enemy's waters. There is nothing,' says Mr. Justice Story, 'in the law of nations that forbids our citizens from sending armed vessels as well as munitions of war to foreign ports for sale. It is a commercial adventure which no nation is bound to prohibit.' If the neutral may sell his vessel when built, he may build it to order; and it must be permissible, as between the belligerent and the neutral state, to give the order which it is permissible to execute. It would appear therefore, arguing from general principles alone, that a vessel of war may be built, armed, and furnished with a minimum navigating crew, and that in this state, provided it has not received a commission, it may clear from a neutral harbour on a confessed voyage to a belligerent port without any infraction of neutrality having been committed.

The question remains, Is there a special usage with respect to the building and fitting out of ships which abridges the common law privileges of neutrals?

It has been already mentioned that in 1779 the neutrality edicts of various minor Italian States rendered it penal to sell, build, or arm privateers or vessels of war for any of the then belligerents; and a like provision occurs in the Austrian ordinances of 1803.

In 1793 the instructions issued to the collectors of customs of the United States professed, according to an accompanying memorandum, to mark out the boundaries of neutral duty as then understood by the American government. And though Washington, in a speech to Congress, took the narrower ground that in the then posture of

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