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CHAPTER XXIV.

RIGHTS AND DUTIES OF NEUTRALS.

1. Neutrality in war-2. Qualified neutrality-3. Advantages and resulting duties of neutrality-4. Hostilities not allowed within neutral jurisdiction-5. Passage of troops through neutral territory-6. Pretended exception to inviolability of neutral territory-7. Opinions of European and American publicists-8. Case of the Caroline-9. Belligerent vessels in neutral ports-10. Right of asylum-11. Presumptive right of entry-12. Armed cruisers in neutral waters-13. Belligerent ships and troops in neutral ports and territory-14. Arming vessels and enlisting troops-15. Loans of money by neutrals-16. Pursuit of enemy from neutral port-17. Passage over neutral waters-18. Municipal laws in favour of neutrality-19. Laws of United States—20. Of Great Britain-21. Protection of neutral inviolability-22. Claim for restitution-23. If captured property be in possession of a neutral— 24. Power and jurisdiction of federal courts-25. Purchasers in foreign ports-26. If condemned in captor's country-27. Illegal equipment. § 1. NEUTRALS in a war are those who take no part in it, but remain the common friends of the belligerents, favouring the arms of neither to the detriment of the others. 'The neutral,' says Phillimore, 'is justly and happily designated by the Latin expression in bello medius. It is of the essence of his character that he so retain this central position as to incline to neither belligerent. He has no jus bellicum himself, but he is entitled to the continuance of his ordinary jus pacis, with, as will presently be seen, certain curtailments and modifications which flow from the altered state of the general relations of all countries in time of war.' According to Bynkershoek, he has nothing to do with the justice or injustice of the war, and can show no favours to one party in preference to another. The error of Grotius, copied by Vattel, in this respect, has not been followed by subsequent writers. All independent sovereign States have right to remain neutral in a war, unless otherwise bound by treaties of alliance previously entered into. It is not necessary that they should make any proclamation or public declaration of

neutrality; the legal presumption is, that their pacific status continues, unless they declare to the contrary.1

§ 2. There is, however, a qualified neutrality which forms an exception to this definition; it arises out of antecedent engagements, by which the neutral State has bound itself to one of the parties of the war, to furnish a limited succour, or to extend certain privileges. The fulfilment of such an engagement, entered into prior to the commencement of hostilities, does not necessarily forfeit the neutral character of a State, nor render it the enemy of the other belligerent party, because it does not render the neutral the general associate of the belligerent to whom the succour or privilege is due. For example, Switzerland has furnished troops to certain European Powers, in virtue of treaty stipulations, without herself being involved in the wars in which her troops were engaged. Denmark, in consequence of a previous treaty, furnished limited succours in ships and troops to Russia, in 1788, against Sweden. By the treaty of amity and commerce between the United States and France, in 1778, the latter secured to herself the special privilege of the admission for her privateers, with their prizes, into American ports, to the exclusion of her enemies; and the admission of her public ships of war, in case of urgent necessity, to refresh, victual, repair, etc., but not exclusively of other nations at war with her. The first of these privileges being exclusive, was complained of by Great Britain and Holland, and France was not satisfied with the interpretation of the latter, by which the public ships of her enemies were admitted into the American ports for the same purposes. To furnish succours, or auxiliaries, or to extend privileges to one belligerent, to the detriment of the other, is undoubtedly a violation of strict neutrality, and, as such, is a just cause of complaint, if not of war. The peculiarity of the position of Switzerland, hemmed in on all sides by States having a direct interest in maintaining her neutrality, has generally prevented complaints against her, for furnishing a limited number of troops to one or more of the parties to a war. If she had been a commercial or maritime State, says Massé, a different rule

1 Phillimore, On Int. Law, vol. iii. §§ 136, 179; Grotius, de Jur. Bel ac Pac., lib. iii. cap. xvii.; Vattel, Droit des Gens, liv. iii. ch. vii. § 113. As to Switzerland, see p. 60.

would undoubtedly have been applied to this singular state of things. She has recently passed regulations prohibiting her citizens from enlisting in foreign service. There can be no question, that her former conduct, in this respect, was a violation of her neutrality. So, also, are the minor acts of partiality mentioned in the preceding paragraph; but, as Phillimore justly remarks, it would be pedantically rigid to consider, as a violation of neutrality, the allowing prizes captured by one belligerent to be brought into the neutral port, especially in compliance with the provisions of a treaty made antecedently to the war. How far a neutrality, thus qualified and limited, may be tolerated by the belligerent against whom the partiality is shown, is a question of expediency rather than of right, and is generally governed by political circumstances.1

3. States, not parties to a war, have not only the right to remain neutral during its continuance, but to do so conduces greatly to their advantage, as they thereby preserve to their citizens the blessings of peace and commerce. Moreover, the belligerents are interested in maintaining the just rights of neutrals, as the trade and intercourse kept up by them greatly contribute to mitigate the evils of war. It has, therefore, become an established principle of international law, that neutrals shall be permitted to carry on their accustomed trade, with such restrictions only as are necessary for the security of the established rights of the belligerents. Although the neutral State is considered as continuing to occupy toward the belligerents the same general position as before the war, its relations with them are very different ; neutrality is not properly a continuation of the former state of peace (la continuation de l'état antérieur de paix'); for, to neutrals, war brings certain advantages and disadvantages,

1 Massé, Droit Commercial, liv. ii. tit. i. ch. ii. § 2; Heffter, Droit International, §§ 144-146; Waite, State Papers, vol. i. pp. 140, 169–172; Hautefeuille, Des Nations Neutres, tit. iv. ch. i.; Eggers, Leben von Bernstorf, 2 ob. pp. 118-195; Bynkershoek, Quæst. Jur. Pub., lib. i. cap. ix.

On the commencement of the Franco-Prussian War, 1870, the Emperor Napoleon III. decided not to receive either at the Imperial headquarters or at the headquarters of the corps-d'armée any volunteer, foreign officer, or person not belonging to the army-(Journal Officiel, July 19, 1870)-and the British Government refused permission to an officer in Her Majesty's service to join the Prussian Army as correspondent to the Times.

and imposes upon them new and peculiar duties. While, in some respects, their trade and commerce may be increased in extent and profit, it is restricted with respect to blockades and sieges, and the carrying of contraband, and their vessels are subjected to the inconvenience and annoyance of visit and search. Not only are they obliged to maintain strict impartiality toward the belligerents, but they are bound to prevent or punish any violation of their rights of neutrality, by either of the parties at war with each other. These duties of neutrality extend not only to preventing the arming of cruisers in neutral ports, and the enlistment of men in neutral territory, but also to the general sanctity of neutral jurisdiction, by redressing all injuries which one belligerent may commit upon the other within its limits.1

1 Hubner, De la Saisie des Bâtiments neutres, pt. ii. ch. ii. § 2; Azuni, Droit Maritime, tome ii. pp. 53, 69; Tetens, Considérations sur les Droits, etc., p. 34; Ortolan, Diplomatie de la Mer, tome ii. ch. viii.; Riquelme, Derecho Pub. Int., lib. i. tit. ii. cap. xiv.

The carrying on trade with a blockaded port is not a breach of municipal law nor illegal, so as to prevent a court of the loci contractûs from enforcing the contract of which the trade is the subject. A neutral State is not bound by the law of nations to impede or diminish its own trade by municipal restrictions. A neutral merchant may ship goods prohibited jure belli, and they may be rightfully seized and condemned. It is one of the cases where two 'conflicting rights' exist which either party may exercise without charging the other with doing wrong. As the transportation is not prohibited by the laws of the neutral sovereign, his subjects may lawfully be concerned in it, and as the right of war lawfully authorises a belligerent power to seize and condemn the goods, he may lawfully do it. Whatever is not prohibited by the positive law of a country is lawful. Although the law of nations is part of the municipal law of England, and it may be said that by that law contraband trade is prohibited to neutrals, and consequently unlawful, yet the law of nations does not declare the trade to be unlawful. It only authorises the seizure of the contraband articles by the belligerent powers.-The 'Helen,' 35 Law. J. N.S. Adm. 2; compare with it the Santissima Trinidad,' 17 Wheat. Adm. R. 284; Richardson v. Marine Insurance Co., 6 Massa. R. 113; Seton and others v. Low, 1 Johns. R., Ex parte Chavasse, 34 Law. J. (N.S.) Chanc. 17.

With respect to the rights of neutral individuals residing in a belligerent territory, it may be mentioned that in 1870, during the FrancoGerman War, the British law officers were of opinion that British subjects having property in France were not entitled to any special protection for their property, or to exemption from military contributions to which they might be liable in common with the inhabitants of the place in which they resided, or in which their property might be situated.

On complaint made to Lord Granville in 1870 by a family of British subjects, residing in the Commune of La Ferté Imbault, in France, of having suffered pillage, menaces, and ill-treatment at the hands of the Prussian troops, although they had hoisted the British flag over the gate of their château, trusting that a neutral flag would have protected their

§ 4. The rights of war can be exercised only within the territory of the belligerent powers, upon the high seas, or in territory belonging to no one. Hostilities cannot be lawfully exercised within the territorial jurisdiction of the neutral State which is the common friend of both parties. To grant any such right to one would be a detriment to the other, and to extend the privilege to both would necessarily make the neutral territory the theatre of hostile operations, and involve the State in the consequences of the war. Hence, every voluntary entrance into neutral territory, with hostile purposes, is absolutely unlawful, and the party so trespassing is liable to be treated as an enemy, unless full satisfaction is made for such violation of neutral rights.'

persons and property, his lordship replied that much as Her Majesty's Government regretted the inconvenience and loss to which they had been subjected, it was out of their power to obtain for them any redress for reasons in conformity with the above opinion.

In the case of a complaint to Lord Granville by Lawrence Smith, of St. Ouen, that though the English flag was flying over his house, Prussian soldiers were quartered on him, that he was robbed of all his provisions, that a volley was wantonly fired into a cellar where his family had taken refuge, his house set on fire, and his family driven away half dressed into a wood in the snow, his lordship replied that Her Majesty's Government did not consider in strict right they would be entitled to claim compensation from the Prussian Government, but that it appeared the destruction of the property was an act of wanton violence on the part of the Prussian troops resulting from lax discipline. In such case he was of opinion that the facts might be brought officially to the notice of the German Government, expressing the hope that they would think fit to direct an inquiry to be made by the military authorities, and that they would, as an act of justice, award compensation for the injuries wantonly inflicted. The British law officers were of opinion that British subjects residing in France had no just cause of complaint against the French authorities in the event of their property being destroyed by an invading army.

Wheaton, Elem. Int. Law, pt. iv. ch. iii. §7; Wolfius, Jus Gentium, $687; Martens, Précis du Droit des Gens, §§ 310, 311; Hautefeuille, Des Nations Neutres, tit. vi. ch. i.

The Brussels Conference of 1874 declares :-Art. 53. The neutral State receiving in its territory troops belonging to the belligerent armies will intern them, so far as it may be possible, away from the theatre of war. They may be kept in camps, or even confined in fortresses or in places appropriated to this purpose. It will decide whether the officers may be released on giving their parole not to quit the neutral territory without authority. Art. 54. In default of a special agreement, the neutral State which receives the belligerent troops will furnish the interned with provisions, clothing, and such aid as humanity demands. The expenses incurred by the internment will be made good at the conclusion of peace. Art. 55. The neutral State may authorise the transport across its territory of the wounded and sick belonging to the belligerent armies, provided that the trains which convey them do not carry either VOL. II.

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