Some Questions of International Law. the maker or purveyor of guns or ammuni tion, has really little or nothing to do with the question whether the belligerent nation has sustained injury from the neutral. To the United States it was of no consequence at all what were the intentions of Laird or Miller, or their riggers or ship carpenters. or whether these persons, or any of them. were animated by partiality to the Confeder ates, or were merely working, in the exer cise of their respective trades, for what they could get. What was of consequence to the United States was the intention with which the vessels were dispatched from England by those who had at that time the real con trol of them. . . . Nor did it matter to the United States whether the vessels were pur chased ready-made or were built to or der. ... In a word, as between nations, the intent which impresses on an armed ship dispatched from a neutral port the character of a hostile expedition is the intent which governs the dispatch of the ship, not the in tent which presided over its preparation."* In respect to the difficulty of distinguish ing between vessels serviceable for warlike use and other vessels, it must be admitted that this is a real and serious difficulty; but it is one which might, we think, be overcome by the exercise of proper care and exertion on the part of the neutral government. 2 1 Bernard, of. cit., pp. 196-97. This argument was •used by Bernard against the American claims, but it merely proves the inconsistency or inade quacy of the American doctrine of intent. This doctrine is now mainly open to criticism because it does not go far enough. It is too narrow and restricted in its scope. By prohibiting the com mercial as well as the belligerent intent, much of the difficulty and doubt to which it has given rise vanishes. 1 This is a question for experts. Hall (p. 620) says: "Experts are perfectly able to distinguish vessels built primarily for warlike use: there would therefore be little practical difficulty in preventing their exit from neutral ports, and theret is no reason for relieving a neutral Gov ernment from a duty which it can easily perform. But it is otherwise with many vessels primarily fitted for commerce." Hall calls especial atten tion to the fact that "mail steamers of large size are fitted by their strength and build to receive, without much special adaptation, one or two guns
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There can be little question (provided the facts have been stated correctly) but that the German Government has been guilty of a violation of neutrality, especially in the matter of the torpedo boats. The fact that these were not fully completed in neutral territory, but were exporter in ports to Rus sia, ought not to free the German Govern ment from responsibility (provided it had knowledge) any more than the fact that the Alabama received her armament in Portu guese waters absolved the English Govern ment during our Civil War. Besides, both the First and the Second Rules of the Treaty of Washington seem expressly to cover this case. The fact is, that any kind of a modern war vessel is a weapon with such tremendous possibilities of destruction that it aooroximates to a hostile expedition,, and that the exportation of such vessels, in whole or in part, for the use of a belligerent from a neu tral port amounts in effect to the use of neu tral territory as a base of military operations, or the origination of a proximate act of war on neutral soil—'acts which are clearly for bidden by International Law.3 In respect to the sale of the German trans atlantic steamers, there is, perhaps, more of sufficient calibre to render the ships carrying them dangerous cruisers against merchantmen. He remarks that these vessels "melt insensibly into other types," and he thinks that "it would be impossible to lay down a rule under which they could be prevented from being sold to a belli gerent and transformed into constituent parts of an expedition immediately outside neutral waters without paralysing the whole ship-building and ship-selling trade of the neutral country. Part of this argument has been dealt with above. Hall certainly exaggerates the injury to ship builders. We would not presume to say to what extent experts can distinguish between the dif ferent classes of vessels. In order to secure a proper enforcement of the law. guarantees or bonds might be exacted from ship-builders and ship-traders, such, e.g.. as are required by the terms of our own Neutrality Act. The burden of proof should be thrown upon the ship-builder ns is done by the British Act of 1870. He is liable if he has "reasonable cause to believe, etc." Sec above. 3 "No proximate acts of war are in any man ner to originate on neutral ground." Sir W. Scott in the "Twee Gcbroeders." 3 C. Rob. 164.
