to originate on neutral ground. No act of hostility is to be commenced on neutral ground. No measure is to be taken that will lead to immediate violence. (Vol. i, page 118.) At page 120 he says:

There is no exception to the rule, that every voluntary entrance into neutral territory, with hostile purposes, is absolutely unlawful. The neutral border must not be used as a shelter for making preparations to renew the attack; and, though the neutral is not obliged to refuse a passage and safety to the pursuing party, he ought to cause him to depart as soon as possible, and not permit him to lie by and watch his opportunity for further contest. This would be making the neutral country directly auxiliary to the war, and to the comfort and support of one party.” i

Ortolan (Diplomatie de la Mer, vol. ii, p. 291) says:

Le principe général de l'inviolabilité du territoire neutre exige aussi que l'emplo de ce territoire reste franc de toute mesure ou moyen de guerre, de l'un des belligérants contre l'autre. C'est une obligation pour chacun des belligérants de s'en abstenir; c'est aussi un devoir pour l'Etat neutre d'exiger cette abstention; et c'est aussi pour lui un devoir d'y veiller et d'en maintenir l'observation à l'encontre de qui que ce soit. Ainsi il appartient à l'autorité qui commande dans les lieux neutres où des navires belligérants, soit de guerre, soit de commerce, ont été reçus, de prendre les mesures necessaires pour que l'asile accordé ne tourne pas en machination hostile contre l'un des belligérants; pour empêcher spécialement qu'il ne devienne un lieu d'où les bâtiments de guerre ou les corsaires surveillent les navires ennemis pour les poursuivre et les combattre, et les capturer lorsqu'ils seront parvenus au-delà de la mer territoriale. Une de ces mesures consiste à empêcher la sortie simultanée des navires appartenant à des Puissances ennemies l'une de l'autre.

Again, at page 302:

Si des forces navales belligérantes sont stationnées dans une baie, dans un fleuve, on à l'embouchure d'un fleuve, d'un Etat neutre, a dessein de profiter de cette station pour exercer les droits de la guerre, les captures faites par ces forces navales sont aussi illegales. Ainsi, si un navire belligérant mouillé ou croisant dans les eaux neutres capture, au moyen de ses embarcations, un bâtiment qui se trouve en dehors des limites de ces eaux, ce bâtiment n'est pas de bonne prise: bien que l'emploi de la force n'ait pas eu lieu dans ce cas, sur le territoire neutre, néanmoins il est le résultat de l'usage de ce territoire; et un tel usoge pour des desseins hostiles n'est pas permis.

3. What is meant

of naval operations."

The above passages supply the obvious and sufficient explanation of the words "base of naval operations." Neutral territory is by the words "A base not to be used "in order to carry on hostile operations from thence," or "as a shelter for making preparations for attack;" (Kent.) No act of hostility is to commence or originate there. "Captures made by armed vessels stationed in a river of a neutral Power, or in the mouth of his rivers, or in harbors, for the purpose of exercising the rights of war from that river or harbor, are invalid;" (Phillimore.) It is not to be made a place "d'où les bâtiments de guerre surveillent les navires ennemis pour les poursuivre et les combattre et les capturer, lorsqu'ils sont parvenus au delà de la mer territoriale;" (Ortolan.)

It is not to "servir de station aux bâtiments des Puissances belligé rantes;” (Heffter.) It is not to "servir à tendre des embûches à l'un des belligérants;" (Hautefeuille.) Belligerent vessels are not to station themselves or to cruise within it, in order to look out for enemies' ships, "encore qu'ils sortent de leur retraite pour aller les attaquer hors les limites de la juridiction neutre." (Ibid., and Pistoye et Duverdy.)

The phrase now in question is a short expression of the principle that neutral territory is not to be used as a place from which operations of naval warfare are to be carried into effect; whether by single ships, or by ships combined in expeditions. It expresses an accepted rule of international law. Any jurist who might have been asked whether neutral ports or waters might be used as a base for naval operations, would have 1 See also Wheaton's "Elements," (Lawrence's edition,) p. 720; Phillimore, vol. ii, p 452.

2 See also Heffter, (Bergson,) pp. 275, 276, 279; and Hautefeuille, vol. ii, p. 2; Calvo, "Derecho Internacional," ii; Pistoye et Duverdy, vol. i, p. 108.

replied that they might not; and he would have understood the words in the sense stated above.

4. What is not meant by those words.

The above citations and references furnish at the same time the necessary limitations under which the phrase is to be understood. None of these writers question-no writer of authority has ever questioned-that a belligerent cruiser might lawfully enter a neutral port, remain there, supply herself with provisions and other necessaries, repair damages sustained from wear and tear, or in battle, replace (if a sailing-ship) her sails and rigging, renew (if a steamer) her stock of fuel, or repair her engines, repair both her steaming and her sailing power, if capable (as almost all ships of war now are) of navigating under sail and under steam, and then issue forth to continue her cruise, or (like the Alabama at Cherbourg) to attack an enemy. "Ils y sont admis à s'y procurer les vivres nécessaires et à y faire les réparations indispensables pour reprendre la mer et se livrer de nouveau aur opérations de la guerre ;” (Ortolan; Heffter.) "Puis sortir librement pour aller livrer de nouveaux combats;" (Hautefeuille.) The connection between the act done within the neutral territory and the hostile operation which is actually performed out of it, must (to be within the prohibition) be "proximate;" that is, they must be connected directly and immediately with one another. In a case where a cruiser uses a neutral port to lie in wait for an enemy, or as a station from whence she may seize upon passing ships, the connection is proximate. But where a cruiser has obtained provisions, sail-cloth, fuel, a new mast, or a new boiler. plate in the neutral port, the connection between this and any subsequent capture she may make, is not "proximate," but (in the words of Lord Stowell, quoted by Kent, Wheatou, and other writers) "remote." The latter transaction is "universally tolerated;" the other universally forbidden.

5. Consequences of a lax use of the

It is evident that if this phrase, "base of operations," were to be taken in the wide and loose sense now contended for by the United States, it might be made to comprehend almost phrase base of ope every possible case in which a belligerent cruiser had taken rations," advantage of the ordinary hospitalities of a neutral port. It would be in the power of any belligerent to extend it almost indefinitely, so as to fasten unexpected liabilities on the neutral.

6. Effect of the ad

"renewal or augmen of military supplies or arms "

Does it, then, make any difference that, in the second Rule of the Treaty of Washington, the prohibition of the use of neutral ports or waters as "the base of naval operations," by one dition of the words belligerent against the other, is combined with the further an prohibition of "the renewal or augmentation of military supplies or arms?" So far from this, the context only makes the meaning of the former part of the Rule more clear. There can be no reasonable doubt as to what is meant by the words "renewal or augmentation of military supplies or arms."

At page 122 of his Commentaries, (vol. i,) Chancellor Kent

says:

7. Doctrine of Chancellor Kent,

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, was unlawful.

& President

The Rules of President Washington (August 4, 1793) speak for themselves. Some of them (as the 6th) clearly exceeded any Washington's Rules obligation previously incumbent upon the United States by international law.

of 1793, and other authorities.

They were as follows:

1. The original arming and equipping of vessels in the ports of the United States by any of the belligerent parties for military service, offensive or defensive, is deemed unlawful.

2. Equipments of merchant-vessels by either of the belligerent parties in the ports of the United States, purely for the accommodation of them as such, is deemed lawful.

3. Equipments in the ports of the United States of ressels of war in the immediate service of the Government of any of the belligerent parties, which, if done to other vessels, would be of a doubtful nature, as being applicable either to commerce or war, are deemed lawful; except those which shall have made prize of the subjects, people, or property of France, coming with their prizes into the ports of the United States, pursuant to the seventeenth Article of our Treaty of Commerce with France.

4. Equipments in the ports of the United States, by any of the parties at war with France, of vessels fitted for merchandise and war, whether with or without commissions, which are doubtful in their nature as being applicable either to commerce or war, are deemed lawful, except those which shall have made prize, &c., (as before.)

5. Equipments of any of the vessels of France, in the ports of the United States, which are doubtful in their nature, as being applicable to commerce or war, are deemed lawful,

6. Equipments of every kind in the ports of the United States of privateers of the Powers at war with France are deemed unlawful.

7. Equipments of vessels in the ports of the United States which are of a nature solely adapted to war, are deemed unlawful, except those stranded or wrecked, as mentioned in the eighteenth Article of our Treaty with France, the sixteenth of our Treaty with the United Netherlands, the eighteenth of our Treaty with Prussia.

8. Vessels of either of the parties not armed, or armed previous to their coming into the ports of the United States, which shall not have infringed any of the foregoing rules, may lawfully engage or enlist their own subjects or citizens, not being inhabitants of the United States, except privateers of the Powers at war with France, and except those vessels which have made prizes, &c.

(Appendix to Report of Neutrality Laws Commission, page 23; British Appendix, vol. iii.)

There can be no question that under these principles and Rules, any amount whatever of coaling by a war-steamer of a belligerent Power in a neutral port was perfectly lawful.

Similar principles will be found in all the best authorities of interna tional law, applicable to the asylum and hospitality which the ships of war of a belligerent may receive in neutral ports without a violation of neutrality. Some of those authorities are referred to in the note at foot of this page.1

P. Act of Con

In accordance with these principles, the Acts of Congress of 1794 and 1818 prohibited, in section 4 of the former, and section 5 of of 1794 and the latter Act, the "increase or augmentation of the force of any ship of war, cruiser, or other armed vessel which, at the time of her arrival within the United States, was a ship of war, cruiser, or armed vessel in the service of any foreign Prince, &c., by adding to the number of the guns of such vessel, or by changing those on board of her for guns of larger caliber, or by the addition thereto of any equipment solely applicable to war."

10. British Fore.gu

1819.

In like manner the British Foreign-Enlistment Act of 1819, by section 8, prohibited the "increase or augmentation of the warlike Enlistment Act of force of any ship or vessel of war, or cruiser, or other armed vessel, which, at the time of her arrival in any part of the Ortolan, Règles Internationales et Diplomatie de la Mer," (4th edition,) vol. ii. p. 226; Heffter, "Droit International," (Bergson's translation,) § 149, and note (2) on p. 276; Pando," Elem, del Derecho Internacional," § 192; Kent, "Commentaries," vol. i. p. 118; Wheaton's "Elements," (Lawrence,) p. 720; Hautefeuille, "Droits et Devoirs des Nations neutres," vol. i, p. 347; Calvo," Derecho Internacional," § 634; Twiss, "Law of Nations," vol. ii, p. 452.

46

United Kingdom or any of Her Majesty's dominions, was a ship of war, cruiser, or armed vessel in the service of any foreign Prince," &c., "by adding to the number of the guns of such vessel, or by changing those on board for other guns, or by the addition of any equipment for war."

11. Universal

practice

No person in either country ever imagined that these prohibitions would be infringed by allowing foreign belligerent steamvessels to coal ad libitum in ports of Great Britain or of the derstanding and United States. It is no more true that such vessels are specially enabled to continue their cruises and warlike operations, by means of supplies of coal so received, (however great in quantity,) than that sailing ships of war are enabled to continue their cruises and warlike operations by substantial and extensive repairs in neutral ports to their hulls, masts, sails, and rigging, when damaged or disabled, or by unlimited supplies of water and other necessary provisions for their crews. It was not by Great Britain only, but equally by France, Brazil, and other countries, that this view as to supplies of coal to Confederate vessels in neutral ports was acted upon throughout the war. In the letter already quoted of the Brazilian Minister, Señor Taques, to Mr. Webb, on the subject of the Sumter, (9th December, 1861,) he wrote:

The hospitality, then, extended to the steamer Sumter at Maranham, in the terms in which it was presently afterwards given to the frigate Powhatan, involves no irregularity, reveals no dispositions offensive to the United States. It remains to know whether, in the exercise of this hospitality, the rights which restrict the commerce of neutrals with either belligerent were transgressed. This point involves the whole question, because Mr. Webb bases his argumentation and his complaints on the construction which he gives of contraband of war as to pit-coal. He insists strongly, as did his Consul, at Maranham, and Commodore Porter, on the idea that without coal the Sumter could not have continued her cruise. If this were a reason for forbidding the purchase of coal in the market, the States called Confederate would have the right to make the same complaint against the like permission presently afterwards given to the Powhatan; and if this reason could be brought forward in respect of coal, it could also be urged in respect of drinking-water and provisions, because without these none of these vessels could pursue their service. (British Appendix, vol. vi, p. 14.)

And he proceeded to show that coal was not, jure gentium, contraband of war.

of

the Treaty on this

When, therefore, the second Rule of the Treaty of Washington speaks of a neutral Government being bound "not to permit or 12. Intention suffer either belligerent to make use of its ports or waters the second Rule of as the base of naval operations against the other, or for the point. purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men," it is no more intended to take away or limit the right of a neutral State to permit the coaling of steamers belonging to the war service of a belligerent within neutral waters, than to take away the right to permit them to receive provisions, or any other ordinary supplies, previously allowable under the known rules of international law.

13. British regula

1862.

With respect to the regulations made by the Queen of Great Britain. on the 31st January, 1862, it is enough to say, that those regulations were voluntarily made by Her Majesty, in the tons of January 31, exercise of her own undoubted right and discretion, as an independent neutral Sovereign, and not by virtue of any antecedent international obligation; that no belligerent Power could claim, under those rules, any greater benefit against the other belligerent, than that the rules themselves should be acted upon without partiality towards either of the contending parties; that the limitation of the quantity of coal to be supplied to the ships of war of the belligerents, in British ports, by these rules, was not absolute and unqualified, but was subject

to the exercise of a power given to the Executive Authorities of the various British possessions to enlarge that limit by special permission, when they should, in the exercise of a bona fide discretion, see cause to do so; and that these rules were, in fact, honestly and impartially acted upon by the British Government throughout the war, without any connivance or sanction whatever, with or to any violation or evasion of them, even if such violation or evasion could have been shown (which it clearly could not) to be the direct or proximate cause of any belligerent operation, resulting in loss to the Government or citizens of the United States.

CHAPTER IV.--PRINCIPLES OF CONSTRUCTION APPLICABLE TO THE RULES OF THE TREATY.

1. Importance of

questions, as to the

struction applicable to the three Rules.

The two questions last considered (that of the supposed obligation of Great Britain, under the First Rule, to seize or detain such the second and third vessels as the Alabama or the Florida, when they came into principles of con- British ports as duly commissioned public ships of war of the Confederate States, and as to her supposed obligation, under the Second Rule, either not to permit at all, or by an exact supervision to limit, the coaling of Confederate steam-vessels of war in British ports) involve points of such grave importance as to the principles of construction to be applied to those Rules for the purpose of the present controversy, that some further general observations on that subject seem to be imperatively called for.

Among the rules for the interpretation of Treaties, laid down by Vat2. Rules for the tel, (Articles 262-310,) are found the following:

interpretation of

and treaties.

public conventions (1.) Since the lawful interpretation of a contract ought to tend only to the discovery of the thoughts of the author or authors of that contract, as soon as we meet with any obscurity we should seek for what was proba bly in the thoughts of those who drew it up and interpret it accordingly. This is the general rule of all interpretations. It particularly serves to fix the sense of certain expressions the signification of which is not sufficiently determined. In virtue of this rule we should take those expressions in the most extensive sense, when it is probable that he who speaks has had in his view everything pointed out in this extensive sense; and, on the contrary, we ought to confine the signification, if it appears that the author has bounded his thoughts by what is comprehended in the more limited sense. (Art. 270.)

(2.) In the interpretation of treaties, pacts, and promises, we ought not to deviate from the common use of the language; at least if we have not very strong reasons for it. In all human affairs, where there is a want of certainty, we ought to follow probability. It is commonly very probable that they have spoken according to custom: this always forms a very strong presumption, which cannot be surmounted but by a contrary presumption that is still stronger. (Art. 271.)

(3.) Words are only designed to express the thoughts; thus the true signification of an expression in common use is the idea which custom has affixed to that expression. It is, then, a gross quibble to affix a particular sense to a word in order to elude the true sense of the entire expression.

(4.) When we manifestly see what is the sense that agrees with the intention of the Contracting Powers it is not permitted to turn their words to a contrary meaning, The intention, sufficiently known, furnishes the true matter of the Convention, of what is perceived and accepted, demanded and granted. To violate the Treaty is to go contrary to the intention, sufficiently manifested, rather than against the terms in which it is conceived; for the terms are nothing without the intention that ought to dictate them. (Art. 274.)

(5.) We ought always to give to expressions the sense most suitable to the subject or to the matter to which they relate. For we endeavor, by a true interpretation, to discover the thoughts of those who speak or of the Contracting Powers in a Treaty. Now, it ought to be presumed that he who has employed a word capable of many dif ferent significations has taken it in that which agrees with the subject. In propor tion as he employs himself on the matter in question the terms proper to express lis thoughts present themselves to his mind. This equivocal word could, then, only offer