Some Quesfioits of International Law. In view of the unsatisfactory and inade quate character of the older body of doctrine, would it not be well to take a step or two even beyond the First Rule of the Treaty ol Washington and broadly assert that a neu tral State is bound to use due diligence (i.e., a kind and degree of diligence reasonably sufficient under the circumstances),1 to pre-
vent not only the fitting out, arming or equipping, and departure of anv vessel in tended for the use of either belligerent, but also the construction, sale and exportation
¡ resgonsible for the noxious enterprise." Dana (cited above), the leading championof thedoctrine of intent, admits that "the act is open to ereat suspicions and abuse, and the line may often bj scarcely traceable." Hall (p. 619, note) remarks upon this passage, "It is eminently inadvisable in matter which may lead to international contro versy to adopt as the test of the character of an action anything so indeterminable as to be 'often scarcely traceable.' No intent other than that which is inferred from acts of a broadly marked character can be safely so used." Cf. Lawrence, p. 548. The complexity which surrounds this doctrine of intent and the fine distinctions to which it may lead in practice may be seen by consulting the case of the U. S. v. Ou'ncy (Supreme Court of the U. S., 1832, 6 Peters, 445). In that case a distinction was made between a fixed and pres ent intent on the one hand and a conditional or contingent intent on the other. It was held that if the intent was to send the vessel in question to the West Indies in search of funds with which to complete her armament, with no present or fixed intention of preying upon the commerce of a friendly State, but with a mere conditional or contingent intent or wish to fit her out after her arrival there, it was not an illegal transaction. On the other hand the older English doctrine to the effect that a ship adapted for war is a mere article of contraband unless she left the neutral port in a condition capable of committing hosti lities the moment she entered upon her voyage was wholly unsatisfactory and absurdly inade quate. This view presupposed innocence on the part of the owner or shipbuilder unless she was at least partly armed and equipped in the neutral port. This was in substance the doctrine laid down in 1863 in the case of the Alexandra (Att. Gen. v. Sillem, Huristone and Coltman, 2 Excheq. Rep. ii, 431) by Chief Baron Pollock and Baron Bramwell. On the Alexandria, see specially Ber nard, Neutrality, pp. 353-54 and note, and Walker. The Science, p. 499. 'There has been considerable controversy as to the true meaning of the phrase "due diligence." The American contention at Geneva was that it meant diligence "commensurate with the emer gency or with the magnitude of the results of negligence." The British case set forth that "due diligence on the part of the sovereign Gov ernment signifies- that measure of care which the Government is under an obligation to use for a given purpose. This measure, when it has not been defined by international usage or agree-
543
ment, is to be deducted from the nature of the obligation itself, and from the considerations of justice, equity, and general cxnediency on which the law of nations is founded." Anything more vague and unsatisfactory that this definition can scarcely be imagined. The Geneva arbitrators adopted in substance the American definition, although couched in somewhat different language. They held that due diligence should be "in exact proportion to the risks to which either of the belligerents may be exposed from a failure to ful fil the obligations of neutrality on their part." This definition has been criticised (e. g., by Law rence, pp. 538-39) on the ground that it accepts the principle of a "changing standard" of neutral obligations, and "imposes different degrees of re sponsibility upon different neutrals in the same war, and thus destroys that impartiality which is the essence of neutral duty." But it is doubtful whether any definition which has been or which might be framed would be wholly free from diffi culty or to which serious objection might not be made. Lawrence suggests (p. 540) that the kind and amount of diligence which a strong'and careful Government would use to put down smuggling ought to be used by neutral States to fulfil the obligations of their neutrality." This sug gestion would certainly seem to furnish a good practical working rule or standard of neutral obli gations, but it may be doubted whether even this would give us the precise and absolute standard which Lawrence seems to be in search of. Cer tainly some account should also be taken of the "emergency" and of the "risks" or "magnitude of the results of negligence." For example, the same degree or amount of diligence would scarcely be required in the case of a small sub marine boat as in the case of a large war ship or of a number of these. For a severe criticism of the definition of "due diligence" adopted by a majority of the arbitrators, see an article by Rolin Jsequemyns in the Revue de Trait Int. VI., pp. 567 ff.. For citations from the opinions of the Geneva arbitrators, see Wharton's Dig. III. 4023 and Moore's History of Arbitration, IV.. c. 68. For a full and complete history of the "Ala bama Case" and the Geneva Award, U. S. Diplo matic Correspondence for the years 1863-1871; Papers relating to the Treaty of Washington; Case of Great Britain with Appendix; Claims of the U. S.; Case of the U. S. For a good abridge ment of the proceedings of the Geneva Board, see Moore on Arbitration, I., c. 14. For a good short history of the "Alabama Case," see Walker, Science of International Law, pp. 458-502. For an excellent summary of the controversy from the British point of view, see Bernard's Historical Account of the Xeutrality of Great Britain during the American Civil 11'ar. For a summary of the controversy from the American point of view, see Cushing's Treaty of Washington.
