exchange of the ratifications of the treaty a question arose as to the proper construction of that clause of the second rule by which the neutral was bound "not to permit or suffer either belligerent to make use of its ports or waters for the purpose of the renewal or augmentation of military supplies or arms." This question arose in England very soon after the conclusion of the treaty, and an effort was made to secure the adoption by the Senate of the United States, simultaneously with its approval of the treaty, of a resolution setting forth its opinion (1) that the acts prohibited by the clause in doubt "were prohibited only when done for the service of a vessel cruising or carrying on war, or intended to cruise or carry on war, against either of the belligerents," and (2) that the prohibition "did not extend to any exportation from the neutral country of arms or other military supplies in the ordinary course of commerce.”1 It seems that the second clause was inserted in the resolution by Mr. Fish after consultation with Judge Hoar. The Senate gave its approval to the treaty, but laid the resolution on the table; and the objection which the British Government had encountered still remained. On the 9th of June 1871 General Schenck telegraphed to Mr. Fish that it seemed probable that, in order to remove "serious objections" to the ratification of the treaty, some declaration would have to be made so limiting the interpretation of the second rule as not to restrict sales of arms or other military supplies in the ordinary course of commerce, and he inquired whether the President would authorize an expression to that effect in bringing the rules to the knowledge of other maritime powers and asking their assent to them. On the following day Mr. Fish replied that the President understood and insisted that the rule did not "prevent the open sale of arms or other military supplies in the ordinary course of commerce," and that the United States would, in bringing the rules to the knowledge of other powers and asking their assent to them, insist that such was their proper interpretation and meaning.3 On the 17th of June 1871, the day the ratifications of the treaty were exchanged at London, Earl Granville sent to Sir Edward Thornton a draft of a note to be used in presenting the three rules to the several maritime powers. In this note Br. and For. State Papers, LXV. 393. 2 Id. 399. 3S. Ex. Doc. 26, 45 Cong. 3 sess. 3. it was stated that the second rule was to be understood "as prohibiting the use of neutral ports or waters for the renewal or augmentation of military supplies only when those acts are done for the service of a vessel cruising or carrying on war, or intended to cruise or carry on war, against another belligerent; and not when military supplies or arms are exported for the use of a belligerent power from neutral ports or waters in the ordinary course of commerce." This clause, it will be observed, was couched in substantially the same terms as the resolution which had been proposed to the Senate, and which that body had laid on the table; but Lord Granville had not been advised of the action of the Senate on the resolution.1 Mr. Fish, however, being desirous of avoiding the use of terms which the Senate had practically rejected, proposed to substitute for the clause in question the assurance expressed in his telegram to General Schenck, that the second rule was not to be understood as prohibiting "the open sale of arms or other military supplies in the ordinary course of commerce." Earl Granville objected to the word "open," because it would seem to make the government responsible for clandestine sales. Mr. Fish intimated that he would be willing to omit this word; but he strongly objected to the word "exportation" in Lord Granville's draft. Lord Granville was willing to omit it." When the discussion had reached this stage and seemed about to result in an agreement, it was interrupted by the controversy as to the "indirect claims," and it was not resumed till several months after the Geneva tribunal had rendered its award. Meanwhile the situation had materially changed. It seems that as early as March 11, 1872, Count Beust, the Austrian ambassador at London, had written to Count Andrassy, saying that Lord Granville desired to be informed as to Austria's view of the three rules; that Prince Bismarck had expressed himself in a manner little favorable to them, intimating that in order to render them acceptable they should be extended so as to forbid the supplying of arms and other munitions of war; but that Lord Granville had said that this could not be done.3 On the 7th of October 1872 General Schenck reported that Count Beust had in his correspondence Br. and For. State Papers, LXV. 399–400. 2 Br. and For. State Papers, LXV. 400, 412, 415; S. Ex. Doc. 26, 45 Cong. 3 sess. 74. 3 M. Henri de Kusserow, Revue de Droit Int. VI. 59, 62. with his government taken strong ground against the rules, and that Count Bernstoff, the German ambassador, had told Lord Granville that his government probably would oppose the rules when they were proposed for its acceptance.' But it was the award at Geneva that served, more than anything else, to prevent the joint submission of the rules by the United States and Great Britain to the other maritime powers. On the 21st of March 1873 a debate took place in the House of Commons on a motion of Mr. Harvey for an address to the Crown praying that Her Majesty in communicating the rules to foreign powers would declare her dissent from the principles set forth by the Geneva tribunal. Several speakers, among whom was Sir W. Vernon Harcourt, spoke in condemnation of the rules. Mr. Gladstone, then prime minister, declared that "the dicta of the arbitrators," their "recitals," and their "rationes decidendi" should not be allowed to enter into the question; but he intimated that the attempt to place a "substantive interpretation" on the rules in recommending them to other powers would be open to objection. There was much criticism of the rules in the House of Commons again in the following May, and on the 3d of November 1873, after the question of submitting the rules had been revived by Mr. Fish, Lord Granville instructed Sir Edward Thornton that, while Her Majesty's government would not propose to fix, without the full concurrence of the Government of the United States, "any particular interpretation of the rules, or any part of them," they would think it necessary to guard themselves against any unintended consequences which, as the result of the Geneva award, the rules might be thought to involve. On the 18th of February 1874, just before leaving office, Lord Granville had a conversation with General Schenck in which he suggested that, while both governments should in submitting the rules "decline to admit any construction put on them by others," they should also state that the rules embodied what the United States maintained was international law before, and what Great Britain, though she was unable to admit that proposition, had thought fit to incorporate in her own municipal law and to endeavor to carry into effect when the rules did not exist.* 1S. Ex. Doc. 26, 45 Cong. 3 sess. 22. 2 Id. 56. 3 Br. and For. State Papers, LXV. 424. |