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in rank have expressed their intention to repudiate them. The reason of this common attitude is the interpretation put upon the phrase “due diligence" by the Tribunal of Arbitrators at Geneva. Undoubtedly all nations recognize a general obligation resting upon themselves as neutrals not to do nor suffer the acts and defaults described in these rules; they acknowledge a duty imposed upon neutral states by the Public Law not to permit their territory to be made the basis of military operations by one belligerent against the other. All this is implied in the very term
neutrality ;” it is conceded by every writer of authority, and has never been denied by a statesman or diplomatist within any recent period. We may remark in passing that the authorities and precedents collected by M. Calvo establish the general proposition just affirmed, and no more ; that is, they establish an amount of neutral duty towards contending belligerents which is at the present day denied by no one. What is the measure of this duty ? The text of the three rules declares it to be the exercise of “due diligence" by the neutral government to prevent the hostile acts described and condemned. What is the true signification of this “ due diligence”? Upon the answer to this question turns the whole controversy. The arbitrators at Geneva utterly rejected the doctrine urged on the part of Great Britain, that the provisions of its own municipal law, if fairly carried out by the neutral government according to the judicial forms and processes established for all cases, would satisfy the demands of the rules, and show that the “ due diligence" had been used. Repudiating this doctrine, and denying that the internal law, statutory or unwritten, of the neutral, or the modes of administering justice however carefully followed, could be the measure of the duty, the Tribunal of Arbitration held in effect that “due diligence” demanded acts on the part of the neutral government which should absolutely prevent the use of its territory condemned by the rules; that such use must be interdicted and effectually prohibited at all events, and that without any reference to the provisions of the municipal code ; that the requirements of the public law in relation to this subject-matter were superior to all internal constitutions and forms of administration, to all limitations upon executive, legislative, and judicial power; in short, that a neutral government was responsible absolutely for the conduct of its own citizens or of belligerent citizens
dwelling within its territory, and was bound to guarantee the party injured by such conduct against the effects thereof. In a word, the interpretation put upon the rules by the arbitrators was, that no efforts and proceedings by the neutral to prevent the misuse of its soil can meet the requirement of “due diligence," unless those efforts are successful! It is not strange that the cabinets of European states, as well as that of Great Britain, refuse to accept a doctrine so utterly without antecedent authority, and so antagonistic to the sovereignty and independence of nations. If it should become an acknowledged part of the international law, the condition of neutrality would be burdensome indeed, often more so than that of the belligerents; and upon no country in the world would the burden rest so heavily as upon the United States of America.1
During the wars which raged in the latter half of the eighteenth century, during the terrible conflicts which culminated with the final overthrow of Napoleon, and during the interval from that epoch to the breaking out of our own Civil War in 1861, the international law had steadily and rapidly undergone a continuous and radical modification in the interests of neutrality. The belligerent authority asserted and championed by Great Britain had been denied and resisted to the last by the continental states; and in this glorious struggle for freedom of commerce the United States had from its earliest existence as a separate nation occupied a position of acknowledged leadership. Rapidly attaining a place second only to that of Great Britain as a maritime power, its executive acts, its legislation, and its diplomacy had without exception been exercised in support of neutral rights and for the furtherance of neutral traffic. Certain from its geographical situation to maintain a neutral character amidst the wars between European powers, its entire business, mercantile and commercial interests, are bound up with the establishment and preservation of neutral immunities, and with the development of principles which secure the neutral status and freedom. The policy which had been pursued by its statesmen of all parties had been uniform, and ever tending to this one end ; and the
1 For a full description of the effects of these rules as interpreted by the Tribunal of Arbitration, and as construed by the United States authorities and agents, upon neutrals in general, and upon the United States in particular, see the American Law Review for January, 1873, pp. 235 to 237.
policy which ought to be pursued by its government under all possible contingencies was plain to the dullest comprehension. During the same period the international law, as a completed and scientific system, had been reconstructed upon a new basis by theoretical writers of most eminent ability, and the principles which they advocated had been accepted by the civilized world, and at last even by Great Britain. The central principle of this readjusted system is the doctrine that commerce between separate peoples is absolutely free, depending upon their united wills, and not liable to be interrupted by other states which choose to engage in war.
It is simply astonishing that without any apparent cause, except the passions aroused by an internal war, the United States should be willing to arrest all this noble progress, and should join with the two leading despotisms of Europe in demanding alterations in the public law which would curtail the freedom of commerce, would subject neutral nations to burdens more onerous than those imposed by Great Britain during the height of her naval supremacy, and would increase and perpetuate the irresponsible power of the great military empires beyond all possible control or check. It is astounding that a school of theoretical publicists, under the mistaken plea of humanity, should turn their backs upon the very principles for which they had so long and so successfully labored, should join in this crusade against constitutional institutions, political freedom, and neutral rights, and should unite in support of the schemes of aggrandizement promoted by the wily statesmen who are endeavoring to maintain and extend the military absolutism of which they are the champions.
ADMIRALTY LIENS OF MATERIAL-MEN.
ONE would say that in two such commercial nations as Great Britain and the United States, the subject of supplies to vessels and the rights of those who furnish them, would be understood and pretty well settled. On the contrary, the subject has been beset with confusions, vacillations, and inconsistencies, to an extraordinary degree, whether in judicial decisions or the writings of commentators. We purpose to inquire how far the late decision of the Supreme Court tends to explain and remove the difficulties.
There are certain principles and certain facts in the history of the subject about which there is now, substantially, no disagreement. The Roman law subjected ships (as most other chattels) to a tacit hypothecation for the payment for work and materials put upon them. This hypothecation is known, in English and American jurisprudence, as a maritime lien. The adjective“ maritime” is prefixed, because the word “lien,” in their common law, is used to express the right of retention which any workman has, as to any chattel which he has taken into his actual custody for the purpose of repairing, as an indirect means of obtaining his pay. The tacit hypothecation, or maritime lien, is a right, interest, and privilege in the vessel. It is a kind of
property. It arises by virtue of, and takes effect at the time of, the act done, whether that act be an injury, as collision; a service rendered without contract, as salvage; or a service in pursuance of a contract, as wages, repairs, and supplies. The lien does not seem to be treated as created by the act of parties, express or implied, so much as by force of law. The act of service or injury done generates the right and property in the vessel. The maritime lien not only does not require or assume a possession of the thing, actual or constructive, but it excludes possession. The seaman has no right to take possession of the ship upon which he has served, as a mode of getting his wages. The tacit hypothecation is a right in the thing, which can be asserted only by judicial proceedings. Those proceedings, in modern
times at least, and in admiralty courts, are against the thing, or, in rem only, and have for their purpose a judicial sale of the thing for the payment of the debt. It is not a proceeding against property of the debtor, in any sense. It is hardly even a hostile proceeding against the thing itself. It is a proceeding at the instance of a person having an interest or property in the thing, in order that his interest or property may be effectuated. This may be done, though no individual debtor may have been discovered, or even exist. The debtor does not even appear in the case, unless at the time of the proceeding he has an interest in the thing; and, in that case, he appears not as the debtor, but as a person claiming property in the thing proceeded against; and, if he has not such property at the time, he has no status in the court.
There is no doubt that the Roman law, in respect to this tacit hypothecation, made no distinction founded upon the residence of the owner of the ship. It was immaterial where he or the material-man resided, or where the repairs were made. This lien might be lost, waived, or precluded by the act of parties, but it has its origin in the service rendered to the ship. It was not necessary to show affirmatively, as a condition precedent to the origin of the lien, that the material-man trusted to the ship, and did not rely solely upon the personal liability of the owner. It, therefore, was immaterial to inquire what the owner's credit was at the place where the work was done, what the materialmen knew or thought about it, and, consequently, whether he resided at the place where the work was done, or at some distant place, or in a foreign country. There can be no doubt that this principle of the Roman law was, for a very long period, principle of the general maritime law. There is no doubt that it is still the principle of the general maritime law in all countries of whose maritime jurisprudence we know any thing, unless and except so far as it may have been modified in Great Britain and the United States.
This brings us directly to the inquiry, which was that in The Lotawana, whether in the jurisprudence of this country this maritime lien is excluded, as an exception from the general maritime law, in cases where the repairs are done in a port where the owner resides, or in a port of the country which is his national domicile.