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ed the jus postliminii, until the property was devested by a sentence of condemnation, and no longer; and this was the rule adopted in the English courts, before the extension of the right of postliminy by statutes, in the two last reigns."
a Lord Mansfield, 2 Burr. 693. 1209. The L'Actif, 1 Edw. Adm. 186.
OF THE GENERAL RIGHTS AND DUTIES OF NEUTRAL
THE rights and duties which belong to a state of neutrality form a very interesting title in the code of international law. They ought to be objects of particular study in this country, inasmuch as it is our true policy to cherish a spirit of peace, and to keep ourselves free from those political connexions which would tend to draw us into the vortex of European contests. A nation that maintains a firm and scrupulously impartial neutrality, and commands the respect of all other nations by its prudence, justice, and good faith, has the best chance to preserve unimpaired the blessings of its commerce, the freedom of its institutions, and the prosperity of its resources. Belligerent nations are interested in the support of the just rights of neutrals, for the intercourse which is kept up by means of their commerce contributes greatly to mitigate the evils of war. The public law of Europe has established the principle, that, in time of war, countries not parties to the war, nor interposing in it, shall not be materially affected by its action; but they shall be permitted to carry on their accustomed trade, under the few necessary restrictions which we shall hereafter consider.
must be im
It belongs not to a common friend to judge between the Neutral belligerent parties, or to determine the question of right partial. between them." The neutral is not to favour one of them to the detriment of the other; and it is an essential charac
a Bynk. 1. 1. c. 9. Burlamaqui, vol. 2. part 4. c. 5. sec. 16, 17.
ter of neutrality, to furnish no aids to one party, which the neutral is not equally ready to furnish to the other. A nation which would be admitted to the privileges of neutrality, must perform the duties it enjoins. Even a loan of money to one of the belligerent parties, is considered to be a violation of neutrality. A fraudulent neutrality is no neutrality. But the neutral duty does not extend so far as to prohibit the fulfilment of antecedent engagements, which may be kept consistently with an exact neutrality, unless they go so far as to require the neutral nation to become an associate in the war. If a nation be under a previous stipulation, made in time of peace, to furnish a given number of ships or troops to one of the parties at war, the contract may be complied with, and the state of peace preserved. In 1788, Denmark furnished ships and troops to Russia, in her war with Sweden, in consequence of a previous treaty prescribing the amount, and this was declared by Denmark to be an act consistent with a spirit of amity and commercial intercourse with Sweden. It was answered by the latter in her counter declaration, that though she could not reconcile the practice with the law of nations, yet she embraced the Danish declaration, and confined her hostility, so far as Denmark was concerned, to the Danish auxiliaries furnished to Russia.c But if a neutral power be under contract to furnish succours to one party, he is said not to be bound if his ally was the aggressor; and in this solitary instance the
a Mr. Pickering's Letter to Messrs. Pinckney, Marshall, and Gerry, 2d of March, 1798. In Dewutz v. Hendricks, 9 Moore's C. B. Rep. 586, it was held to be contrary to the law of nations, for persons residing in England, to enter into engagements to raise money by way of loan, for the purpose of supporting subjects of a foreign state in arms against a government in friendship with England, and no right of action attached upon any such contract.
b Fattel, b. 3. c. 7. sec. 104, 105. Mr. Jefferson's Letter to Mr. Pinckney, September 7th, 1793.
New A. Reg. for 1788, tit. Public Papers, p. 99.
neutral may examine into the merits of the war, so far as to see whether the casus fœderis exists. An inquiry of this kind, instituted by the party to the contract, for the purpose of determining on its binding obligation, holds out strong temptations to abuse; and, in the language of Mr. Jenkinson,b "when the execution of guaranties depends on questions like these, it will never be difficult for an ally who hath a mind to break his engagements, to find an evasion to escape."
A neutral has a right to pursue his ordinary commerce, Neutral and he may become the carrier of the enemy's goods, with- territory inout being subject to any confiscation of the ship, or of the neutral articles on board; though not without the risk of having the voyage interrupted by the seizure of the hostile property. As the neutral has a right to carry the property of enemies in his own vessel, so, on the other hand, his own property is inviolable, though it be found in the vessels of enemies. But the general inviolability of the neutral character goes further than merely the protection of neutral property. It protects the property of the belligerents when within the neutral jurisdiction. It is not lawful to make neutral territory the scene of hostility, or to attack an enemy while within it; and if the enemy be attacked, or any capture made, under neutral protection, the neutral is bound to redress the injury, and effect restitution. The books are full of cases recognising this principle of neutrality. In the year 1793, the British ship Grange was captured in Delaware bay by a French frigate, and, upon due complaint, the American government caused the British ship to be promptly restored. So, in the case of the Anna, the
a Bynk. Q. J. P. b. 1. c. 9. Vattel, b. 2. c. 12. sec. 168.
b Discourse on the Conduct of the Government of Great Britain in
respect to neutral nations, 1757.
c Grotius, b. 3. c. 4. sec. 8. n. 2. Bynk. b. 1. c. 8. Vaitel, b. 3. part 4. c. 5. sec. 19.
c. 7. sec. 132. Burlamaqui, vol. 2.
d Mr. Jefferson's Letter to M. Ternant, of 15th May, 1793.
e 5 Rob. 373.