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§ 5. It was contended by some of the ancient publicists that a belligerent had an absolute right of passage for his troops through neutral territory, and that the neutral could not refuse it without injustice. But Vattel contends that such innocent passage through neutral territory may be granted or refused by the neutral power, at its discretion; that, if refused, the applicant has no cause of complaint, and if granted, the opposite party can only claim the same privilege for his own troops. Many modern writers, and the German publicists generally, have pronounced in favour of the views of Vattel. But Heffter, Hautefeuille, Manning, and others, express the opinion, that to grant such passage is a violation of neutral duty, and affords just cause of complaint, if not of war, to the other belligerent. This opinion seems most consonant with the general principles of neutrality. But admitting the right of the neutral State to make such agreement, it follows, that if it grant or refuse passage to one of the parties to the war, it is bound, in like manner, to grant or refuse it to all the other parties, unless the alteration of circumstances, or some special reason, should of itself form a justification for acting otherwise. Without solid and satisfactory reasons, to grant passage to one belligerent and refuse it to another, would be showing partiality, and receding from a position of strict neutrality. This is the reasonable and just rule deduced from the opinions of law writers, and the usage of nations. The grant of passage, says Vattel, includes all those things without which the passage would not be practicable, such as the liberty of carrying whatever may be necessary for the passing army, and that of maintaining discipline among the troops. Moreover, he who grants a passage is bound, so far as lies in his power, to make it safe from attack; for, otherwise, it would be drawing those who pass into a snare, which would be a breach of good faith. Whether the troops are to pass with or without

the personnel or matériel of war. In this case the neutral State is bound to take the measures necessary for the safety and control of the operation. Art. 56. The Convention of Geneva is applicable to the sick and wounded interned on neutral territory.

During the Franco-German War in 1870, between 60,000 and 70,000 French troops crossed into Switzerland. They were disarmed and interned by order of the Swiss Government. The sick and wounded among them were not sent back to the French army.

arms, and whether they are to be permitted to purchase supplies in the country passed over, or to carry their provisions with them, will, in general, be specified in the grant of passage, and if not specified, such permission will be presumed. Troops, to whom a passage is granted through a neutral territory, are bound to observe the most exact discipline, to occasion no damage to the country passed over, to keep the public roads, and not to enter the houses or lands of private persons, and to punctually pay for whatever is purchased of the inhabitants. The State to which the troops belong is held strictly accountable for any damage to public or private property. Moreover, they cannot make the neutral border a shelter for making preparations to attack the enemy, nor, when defeated, an asylum in which to lie by and watch their opportunity for further contest. This would be making the neutral country directly auxiliary to the war, and to the comfort and support of one of the belligerents. Such conduct would be a violation of the rights and duties. of neutrality, and, so far from being justified by the grant of passage, it would be good cause for the neutral State to revoke the grant, and compel the offender to immediately leave its territory.1

§ 6. Bynkershoek makes one exception to the general inviolability of neutral territory, and contends that if a belligerent should be attacked on hostile ground, or in the open sea, and should flee within the jurisdiction of a neutral State, the victor may pursue him dum fervet opus, and seize his prize within the neutral State. He rests his opinion entirely on the authority and practice of the Dutch, and not on the usage of any other nation. Casaregis, in one part of his work, expresses the same opinion, and, relying on the practice or law observed in the chase of animals, maintains that if a naval fight has commenced on the high seas, a belligerent may pursue and capture the ship of his enemy, even under the cannon, and within the jurisdiction of a neutral power. But, in a subsequent discourse, he acknowledges his error, or rather forgets his former opinion, and adopts a contrary

1 Vattel, Droit des Gens, liv. iii. ch. vii. §§ 133, 134; Bello, Derecho Internacional, pt. ii. cap. vii. §§ 5, 6; Moser, Versuch, etc., b. x. c. i. pp. 238, et seq.; Manning, Law of Nations, pp. 182-186; Heffter, Droit International, § 147; Hautefeuille, Des Nations Neutres, tit. v. ch. i.

one with respect to the protection afforded to belligerent vessels in neutral ports.'

§ 7. But this opinion of Bynkershoek is not supported by the practice of nations, nor by writers on public law. Abreu, Valin, Emerigon, Vattel, Azuni, Sir William Scott, Martens, Phillimore, Manning, and other European writers, maintain the sounder doctrine, that when the flying enemy has entered neutral territory, he is placed immediately under the protection of the neutral power, and that there is no exception to the rule that every voluntary entrance into neutral territory, with hostile purposes, is absolutely unlawful. Kent, Wheaton, Story, and other American writers, oppose the doctrine of Bynkershoek; and the government of the United States has invariably claimed the absolute inviolability of neutral territory.2

§ 8. This question was revived and elaborately discussed in the case of the steamboat Caroline,' which was captured and destroyed by British armed forces while in American territory, in the winter of 1838. This vessel had been employed by a body of Canadian insurgents, in conveying passengers and munitions of war from the frontier of the State of New York to the British ground of Navy Island. The commander of the expedition, from the Canada side, sent to capture this vessel, expected to find her within British territory, but on coming round the point of the island in the night, he first discovered that the vessel was moored on the American shore. He nevertheless proceeded to make the capture and to destroy the vessel, although then within the neutral territory, and his conduct was approved by his Government. This led to remonstrance on the part of the United States. It was said that if, upon a full investigation of all the facts, it should appear that the owner of the vessel had been governed by a hostile intent, or had made common cause with the occupants of Navy Island, the United States would prosecute no claim to indemnity for the destruction of this boat; but that the lawfulness,

1 Bynkershoek, Q. J. Pub., lib. i. cap. viii.; Casaregis, de Commercio, disc. xxiv. n. ii. and disc. clxxiv. n. xi. ; the Anna,' 5 Rob. R., p. 348.

2 Abreu, Sobre las Presas, pt. i. c. iv. § 15; Valin, Traité des Prises, ch. iv. § 3; Azuni, Droit Maritime, pt. i. c. iv. §1; Vattel, Droit des Gens, liv. iii. ch. vii. §§ 132, 133; the Anna Catharina,' 5 Rob. R., p. 15; Martens, Précis du Droit des Gens, §§ 310, et seq.; Phillimore, On Int. Law, vol. iii. § 154; Manning, Law of Nations, pp. 186, 386.

or unlawfulness of the employment in which the 'Caroline' was engaged, however settled, in no manner involved the higher consideration of the violation of territorial sovereignty and jurisdiction. In the discussion which followed, Mr. Webster, while claiming absolute immunity of neutral territory against aggression from either of the belligerents, admitted that the necessity of self-defence might justify hostility in the territory of a neutral power; but that it was required of the English Government, as the aggressor in this case,' to show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation. It will be for it to show, also, that the local authorities of Canada, even supposing the necessity of the moment authorised them to enter the territories of the United States at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defence, must be limited by that necessity and kept clearly within it.' Lord Ashburton agreed with Mr. Webster, on the inviolability of neutral or independent territory, and on the possible exception to which that principle was liable--the necessity of self-defence, as the first law of our nature—and that the suspension of that great principle 'must be for the shortest possible period, during the continuance of an admitted overruling necessity, and strictly confined within the narrowest limits imposed by that necessity.' He, however, contended that there was 'that necessity of selfdefence, instant, overwhelming, leaving no choice of means, and no moment for deliberation,' which preceded the destruction of the Caroline' while moored to the shore of the United States, that it must be admitted that there was, in the hurried execution of the necessary seizure, a violation of territory,' and that it was 'to be regretted that some explanation and apology for this occurrence was not immediately made' to the United States, by the British Government. These acknowledgments and assurances were received as satisfactory by the United States, and the subject was not further discussed by the two Governments.1

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$9. A neutral State, by virtue of its general right of police over its ports, harbours, and coasts, may impose such restrictions upon belligerent vessels, which come within its jurisdic

1 Webster, Dip. and Off. Papers, pp. 112-120.

tion, as may be deemed necessary for its own neutrality and peace, and so long as such restrictions are impartially imposed upon all the belligerent powers, neither can have any right to complain. This right is frequently exercised in prohibiting all armed cruisers with prizes to enter such neutral ports and waters, and, even without prizes, to obtain provisions and supplies. This usage is shown by marine ordinances

and text-writers of different nations.1

§ 10. This restriction, imposed by neutrals upon the vessels of belligerents which come into their ports, is never extended to deny the rights of hospitality in case of immediate danger and want. Armed cruisers may anchor within a neutral port as a shelter from the attacks of an enemy, to avoid the dangers of a storm, or to supply themselves with water, provisions, and other articles of pressing necessity. Asylum, to this extent, is required by the common laws of humanity, to be afforded to belligerent vessels in neutral ports. But beyond this, there is no right of asylum which the neutral may not withhold equally from all belligerents. It may prevent any free communication with the land, and, as soon as such vessels have supplied their immediate wants, the neutral may compel them to depart from its jurisdiction. Such were the restrictions imposed by the King of the Two Sicilies in the wars of 1740 and 1756, and by Sardinia in the war of 1778, and they are supported by the authority of text-writers.2

1 Heffter, Droit International, §§ 146-150; Ortolan, Diplomatie de la Mer, tome ii. ch. viii.; Bello, Droit International, pt. ii. cap. vii. § 6; Hautefeuille, Des Nations Neutres, tit. vi. ch. ii.

2 Kent, Com. on Am. Law, vol. i. pp. 120, 121.

By the law of nations, belligerent ships of war, privateers, and the prizes of either, are entitled on the score of humanity to temporary refuge, and to enjoy asylum in neutral ports from casualties of the sea and land, and for the purpose of obtaining supplies or undergoing repairs, according to the discretion of the neutral Sovereign, who may refuse the asylum absolutely, or grant it under such conditions of duration, place, and other circumstances as he shall see fit; provided, however, that he must be strictly impartial in this respect towards all the belligerent Powers. And so long as the neutral State has not signified its determination to refuse the privilege of asylum to belligerent ships of war, privateers, or their prizes, either belligerent has a right to assume its existence and enter upon its enjoyment subject to such regulations and limitations as the neutral State may please to prescribe for its own security. Therefore, although the United States may not have entered into any treaty with either of two belligerents, to accord asylum to its vessels, yet if they have not given any notice that they will not do

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