The Alabama case and kindred cases have produced much speculation as to the establishment of a true and correct rule. After the enactment of the American neutrality statutes in 1818, there were numerous decisions of the United States courts to the effect that the intent was to govern, that is, if the purpose was to send articles of contraband, with the risk of capture, to a belligerent's country for sale, the neutral government had nothing to say, but if the purpose was to send out a vessel to prey on the commerce of a friendly power, then the neutral government should prevent her departure. It must be admitted that the rule is hardly satisfactory.[508]
Hall contends that the true test should be "the character of the ship itself." If built for warlike use, the vessel should be detained; if for commercial purposes, she should be allowed to depart. This rule has at least one element of fairness and sense. It is not always possible to get at intent, but the character of the vessel is likely to reward observation and scrutiny.[509]
Regret has been expressed by many writers that the award of the arbitrators appointed under the Treaty of Washington of 1871, upon the Alabama claims, has proved of so little value as a precedent upon the liability of a neutral power for the departure from its ports of vessels fitted out and equipped for the destruction of belligerent commerce.
Article VI. of the Treaty provided that the Arbitrators should be "governed by the following three rules, which are agreed upon by the high contracting parties as rules to be taken as applicable to the case, and by such principles of international law not inconsistent therewith as the Arbitrators shall determine to have been applicable to the case.
"A neutral Government is bound—
"First to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a Power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use.
"Secondly, not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men.
"Thirdly, to exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties."
The British government declared that it "cannot assent to the foregoing rules as a statement of principles of international law which were in force at the time when the claims mentioned" arose but "in order to evince its desire of strengthening the friendly relations between the two countries and of making satisfactory provision for the future, agrees that in deciding the questions between the two countries arising out of those claims, the Arbitrators should assume that her Majesty's government had undertaken to act upon the principles set forth in these rules.
"And the high contracting parties agree to observe these rules as between themselves in the future, and to bring them to the knowledge of other maritime Powers, and to invite them to accede to them."[510]