the rule which will be maintained by his government. The American Government,' says Mr. Webster, 'is prepared to

In 1798 not only merchantmen, but even vessels of war of the United States were searched by the British ships of war. His Majesty's ship Carnatic,' 74, boarded an American vessel of war off Havannah. The United States Government issued orders to their vessels never to submit when they had the means of resistance, and never to part with the men unless the vessel was taken.-Brenton, vol. I.

On the other hand, Americans seduced British seamen and even soldiers in their regimentals.

Sir R. Strahan insisted on searching French convoys in the East Indies.-Ibid.

In 1800 a British squadron fell in with a Danish convoy under the frigate Freya.' Capt. Baker, of the ‘Nemesis,' the senior British officer, hailed the 'Freya' to say he should send his boat on board the convoy. Capt. Krabbe, of the Freya,' replied that if such an attempt were made he would fire into the boat. Both threats were put into execution, and an action ensued which ended in the 'Freya's' submission. She was taken to the Downs, but still kept flying the Danish ensign and pendant by order of the Vice-Admiral of the station. Lord Whitworth was immediately sent to Denmark to place the business on an amicable footing. On the 29th August Lord Whitworth terminated the negotiation with the Danish Minister, Count Bernstorff, and a convention was mutually signed agreeing that the 'Freya' and convoy should be repaired at English expense and then released; that the right of the British to search convoys should be discussed at a future date in London; that Danish vessels should only sail under convoy to the Mediterranean, to protect them from the Algerines, and should be searchable as formerly; and that the convention should be ratified by the two Courts in three weeks.-Jas., Nav. Hist. vol. iii. 63.

By the navy regulations of the United States, 1876, vessels of war are not to take under their convoy the vessels of any power at war with another, with which the United States are at peace, nor the vessels of a neutral, unless some very particular circumstances render it proper. The commanding officers are forbidden to permit the vessels under their protection to be searched or detained by any belligerent or cruiser.

The ancient right of Great Britain to impress seamen for the Royal navy from her own merchantmen has been modified by various statutes. The 19 Geo. III. c. 75 (repealed by Stat. Law. Rev. Act 1871), ‘in an arduous and difficult conjuncture,' suspended four statutes which modified or limited the above right, viz.—the 2 and 3 Anne, c. vi. s. 8, the 13 Geo. II. c. xvii., the 2 Geo. III. c. xv. s. 22, and the 11 Geo. III. c. xxxviii. s. 19, for the space of five months, except as far as regarded coal vessels. By 19 Geo. II. c. xxx. 'no mariner or other person who shall serve on board or be retained on board any privateer or trading ship or vessel that shall be employed in any of the British sugar colonies in the West Indies, in America, nor any mariner or other person being on shore in the said British sugar colonies, nor any of them shall be liable to be impressed or taken away, or shall be impressed or taken away, in or from any of the said British sugar colonies or any of them, or any of the ports thereof, or at sea in those parts, by any officer or officers of or belonging to any of His Majesty's ships of war empowered by the Lord High Admiral of Great Britain or the Lords Commissioners, &c., or any other person whosoever, unless such mariner shall have before deserted from such ship of war belonging to His Majesty.'

This statute is discussed in Spieres v. Parker (1 Term R., 141); it was repealed by 27 & 28 Vict. c. 23, S. 1.

say that the practice of impressing seamen from American vessels cannot hereafter be allowed to take place. That practice is founded on principles which it does not recognise, and is invariably attended by consequences so unjust, so injurious, and of such formidable magnitude, as cannot be submitted to. In the early disputes between the two governments on this so long contested topic, the distinguished person to whose hands were first committed the seals of this department declared, that the simplest rule will be, that the vessel being American, shall be evidence that the seamen on board are such! Fifty years' experience, the utter failure of many negotiations, and a careful reconsideration, now had, of the whole subject, at a moment when the passions are laid, and no present interest or emergency exists to bias the judgment, have fully convinced this Government that this is not only the simplest and best, but the only rule, which can be adopted and observed consistently with the rights and honour of the United States, and the security of their citizens. That rule announces, therefore, what will hereafter be the principle maintained by their Government. In every regularly documented American merchant vessel, the crew who navigate it will find their protection in the flag which is over them.'

↑ Webster to Lord Ashburton, Aug. 8, 1842; Webster, Dip. and Off. Papers, p. 101.

305

CHAPTER XXVIII.

VIOLATION OF NEUTRAL DUTIES.

1. The rights and duties of neutrality are correlative-2. Violation of neutral duty by a State-3. By individuals—4. Criminal character of such violations-5. Neutral vessels transporting enemy's goods-6. Opinions of publicists-7. Neutral goods in enemy ships-8. Maxims of 'free ships free goods,' and 'enemy ships enemy goods'-9. These maxims in the U. S.-10. Treaties and ordinances-11. France and England in 1854-12. Congress of Paris in 1856-13. Rule of evidence with respect to neutral goods in enemy ships-14. Neutral ships under enemy's flag and pass-15. Neutral goods in such vessel -16. Neutral vessel in enemy's service-17. Transporting military persons-18. Conveying enemy's despatches-19. Engaging in enemy's commerce exclusively national-20. Rule of 1756 and rule of 1793— 21. Distinction between them-22. Application of the rule of 1793 to continuity of voyage-23. Effect on American commerce-24. General result of discussions-25. Views of American government26. Change of British colonial policy.

§ 1. ANY act of positive hostility on the part of a neutral State toward one of the belligerents in a war, is deemed a breach of neutrality, and makes such State a party in the war. The rights and duties of neutrality are correlative, and the former cannot be claimed, unless the latter are faithfully performed. If the neutral State fail to fulfil the obligations of neutrality, it cannot claim the privileges and exemptions incident to that condition. The rule is equally applicable to the citizens and subjects of a neutral State. So long as they faithfully perform the duties of neutrality, they are entitled to the rights and immunities of that condition. But for every violation of neutral duties, they are liable to the punishment of being treated in their persons or property as public enemies of the offended belligerent.'

§ 2. Having already discussed the mutual duties of States in times of peace, it will not be necessary here to make any

Kent, Com. on Am. Law, vol. i. pp. 115-117; Wheaton, Elem. Int. Law, pt. iv. ch. iii. § 1; Vattel, Droit des Gens, liv. iii. ch. vii. § 104; Riquelme, Derecho Pub. Int., lib. i. tit. i. cap. xi.; De Cussy, Droit Maritime, liv. i. tit. iii. § 9.

extended argument to enforce those duties on the part of the neutral State toward other States with which it remains at peace, while they are carrying on hostilities toward each other. Its duty is that of entire impartiality, as well as neutrality. Should a neutral government, without cause or provocation, complaint or warning, attack the possessions, or capture the ships of a belligerent power, all would denounce the aggression as a flagrant outrage on the laws of justice as well as of humanity; yet it is precisely of this violation of justice, although in a milder form, that a neutral government is guilty, that, while it affects to maintain the relations of friendship with contending belligerent powers, furnishes to one effectual aid in the prosecution of the war, by a supply of ships, or arms, or munitions of war. With whatever pretext the government may veil its conduct, its acts are those of unprovoked and causeless, and, therefore, unjust hostility. A violation of neutrality is not limited to acts of positive hostility. If the neutral State assist one of the belligerents; if it grant favours to one to the detriment of the others; if it neglect or refuse to maintain the inviolability of its territory; or if it fail to restrain its own citizens and subjects from overstepping the just bounds of neutrality, as defined and established by the law of nations-it violates its duties toward the belligerent who is injured by such act or neglect, and is justly chargeable with hostility. Such conduct furnishes good cause for complaint, and, if persisted in, may become just cause of war. Sir Wm. Scott very justly remarked that there are no conflicting rights between nations at peace; which remark may be applied, with truth, to every case of a violation of neutral duty.'

§ 3. But while the law of nations holds the government of the neutral State responsible for any act of positive hostility committed by its officers, or, in most cases, by its citizens and subjects, it is not in general held responsible for ordinary violations of neutral duty (not in themselves of positive hostility) by such citizens or subjects. The law in such cases imposes the duty upon the individual, and if it be

1

Bello, Derecho Internacional, pt. ii. ch. vii. §§ 1-3; Harrat v. Wise, 9 B. and C., 712; Naylor v. Taylor, 9 B. and C., 715; Medeiros v. Hill, 8 Bing. R., 231; the Maria,' 1 Rob., 360; Pitkin, Civil and Pol. Hist. of U. S., vol. i. ch. x,.

violated the penalty is imposed and enforced upon the individual by the capture and confiscation of his property. Thus, the neutral State is not bound to restrain its subjects from engaging in contraband trade, or from violating the right of visitation and search, or the law of sieges and blockades; the law imposes upon the individual the duty of abstaining from such illegal acts, and, if guilty of a violation of this duty, he is the one to suffer the punishment due to the offence. Nor do the courts of a neutral country, as a general rule, enforce penalties for violations of neutral duty.1 As before remarked, there are certain obligations of neutrality, such as abstaining from acts of positive hostility, which the neutral State is bound to enforce with respect to its subjects; its own municipal laws in relation to such matters are, of course, administered by its own tribunals. But such courts do not enforce penalties for carrying contraband of war, for a breach of blockade, or for violating the belligerent right of visitation and search. All such cases are left to be adjusted by the prize tribunals of the belligerents.

§ 4. It may be stated, as a general principle which lies at the foundation of the rules of international law relating to this subject, that the violation of neutral duties is neither innocent nor lawful. It is not simply the penalty incurred by such violation that makes it wrong, as some have asserted ; nor is it correct to say that, if the neutral merchant is willing

1 The rights which the laws of war give to a belligerent for his protection do not involve as a consequence that the act of the neutral, in transporting munitions of war to the other belligerent, is either a personal offence against the belligerent captor, or an act which gives him any ground of complaint, either against the neutral trader or the Government of which he is a subject. All that international law does is to subject the neutral merchant who transports the contraband of war to the risk of having his ship and cargo captured and condemned by the belligerent power for whose enemy the contraband is destined.

The object of a Royal proclamation is only to make known the existing law; it can neither make nor unmake the law. Hence the British proclamation of the 13th May, 1861, whereby the provisions of the then Foreign Enlistment Act were enforced, and the subjects of the Crown were warned of the risks they incurred by sending contraband of war to either of the belligerent powers in America, had no effect upon the legality of an adventure for transporting munitions of war to the Confederate States. -Ex parte Chavasse, re Grazebrook, 2 Mar. Law. Cas. (Chan.), 197. Duer, On Insurance, vol. i. p. 749; Webster, Dip. and Off. Papers, PP. 309, 310; Lee, Opinions U. S. Att'ys Genl., vol. i. p. 61; Heffter, Droit International, §§ 148, 172; Ortolan, Diplomatie de la Mer, tome ii.

2

ch. vi.