likely to exist in time of peace. Cruisers may sail into neutral harbours for any of the purposes for which merchant vessels of either party frequent the same places, except that merchant vessels are suffered to take military stores on board, which is forbidden generally, and ought to be forbidden, to ships of war. (Note 15.)

2. The general practice of nations, dictated perhaps by comity, has hitherto permitted cruisers to bring their prizes into neutral ports. We have already seen that this is not obligatory on neutrals, and sound policy demands that it be prohibited.1 (Note 16.)

What neutrals may not do.

§ 160.

On the other hand, it is a violation of neutrality for a neutral state to lend money, or supply troops (with the exception already mentioned), or open harbours for hostile enterprises; or to allow the presence of any individual or any vessel pertaining to a belligerent state within his territory, when believed to be stationed there for the pupose of carrying out a hostile undertaking; or to suffer its subjects to prepare, or to aid in preparing or augmenting any hostile expedition against a friendly power, as, for instance, to build, arm, or man ships of war with such a purpose in view, or to build them with this intent so far as to make them ready for an armament to be put on board upon the high seas or in some neutral port. Nor can he allow his courts to be employed in deciding upon the validity of captures made by belligerent vessels. Nor, again, can he during a war be the acquirer by purchase or otherwise of any conquest made by either of the parties without deserting his unbiassed neutral position.

If a neutral power violates its obligations in these respects or winks at hostile proceedings, such conduct may afford ground even for war. If it is careless in not preventing damage to a friend from the undertakings of its subjects, it is liable for the loss thence resulting. (§ 163.) Nor can it plead the inefficiency of its laws, or want of sufficient law, for all nations are bound to enforce the law of nations within their own limits. (§§ 29, 207.) It ought to be said, however, that the base arts of merchants and shipbuilders will often prevent governments from obtaining due evidence of the existence of such hostile designs; and that the distinction between what is merely contraband of war-as a ship of war made for sale, if that be a fair instance-and that which is a hostile expedition, is sometimes so nice, that the present law of nations, and municipal law enforcing it, must allow many wrongs done to neutrals to slip through their fingers. Might not

1 That is, captures in war ought to be attended with so many inconveniences as to check the spirit of plunder.

something be gained if, during wars between friendly states, builders and armers of vessels were required by neutral governments to give security to double the value that these were not intended to be used in hostile expeditions? Compare § 178, note, and see Note 17.)

or disputed.

Passage of

It was formerly thought that the neutral might allow the transit of belligerent troops through his territory, Cases doubtful the passage of ships engaged in the service of war through his waters, and the preparation of hostile troops. expeditions in his harbours, if he granted the same to both sides. All now admit that the neutral may refuse any of these privileges, and must be the sole judge in the case, although Vattel inclines to think that innocent transit in extreme cases may even be carried through with force.2 Many publicists still view the allowance of transit as reconcileable with the notion of neutrality, and a number of treaties have expressly granted it to certain states. Heffter, who held this view in his first edition, has in the third (§ 147) justly taken the opposite side. His reasons for his later opinion against allowing transit are that for the most part an actual gain accrues from it to one party, and that it will rarely happen that both can avail themselves of it during a war, with equal advantage. (Compare § 157.)

§ 161.

The practice of neutrals to furnish troops to belligerents, or to allow them to enlist troops on neutral ground, was The neutral furformerly common and allowed.3 Thus six thousand nishing troops. Scotchmen joined the army of Gustavus Adolphus. The Swiss, like the Arcadians of old, for centuries furnished troops to many foreign sovereigns, not without detriment to the national character, as Zwingli and other patriots have felt, and still in recent times they have hired out soldiers to some of the Italian states. Several old treaties gave France the preference over other nations in levying Swiss troops; and that of 1521 allowed her to enlist a number not exceeding 1,600, who could not be recalled by the authorities at home so long as France was at war. A treaty of this kind was made as late as 1803. Heffter thinks, however, that since the neutrality of 1815, they would not be justified in agreeing to furnish troops to one European power against another after the outbreak of a war. Many treaties made in the last three centuries have renounced the power thus to furnish troops, or have put an end to foreign enlistment, while a number of an 1 For the conduct of our government in preventing hostile expeditions, and in making reparations for wrongs committed by them, when they had had their origin in our ports, see a pamphlet entitled English Neutrality, by G. P. Lowrey, New York, 1863.

2 Vattel, iii. 7, §§ 119-135.

3 See Manning, book iii. 1, pp. 166-181.

opposite import have permitted the one or the other. By the treaty of Münster in 1648—we quote the words of Mr. Manning (p. 174), 'it was agreed that none of the contracting parties should afford to the enemies of the other arms, money, soldiers, provisions, harbour or passage, the right being, however, reserved to the individual states of the empire to serve as mercenaries according to the constitutions of the empire.' This custom has now a lingering existence; it is forbidden in some countries by law, and is justly regarded as a violation of neutrality.

What may a

do?

§ 162.

International law does not require of the neutral sovereign that he should keep the citizen or subject within the neutral's subjects same strict lines of neutrality which he is bound to draw for himself The private person, if the laws of his own state or some special treaty does not forbid, can lend money to the enemy of a state at peace with his own country for purposes of war, or can enter into its service as a soldier, without involving the government of his country in guilt. The English courts, however, and our own deny that any right of action can arise out of such a loan, on the ground that it is contrary to the law of nations. (Phillimore, iii. § 151, case of Kennett v. Chambers, 14 Howard, U. S. Rep., 38.) The practice of individuals belonging to a neutral nation serving in foreign wars was formerly widely diffused and admitted throughout Europe, and is not of easy prevention, if prohibited, for at the worst the individual may renounce his country. It is only when a great pressure into the armies of one of the belligerents is on foot, that the neutral can be called on to interfere. In the case of private armed vessels the usage is different. It is now regarded as a breach of neutrality to allow a subject to accept letters of marque and equip armed vessels, in order to prey on the commerce of a belligerent friend; although it would be impossible, as on the land, to prevent individuals from going abroad for this purpose.

Rights of neutrals.

§ 163.

Neutrals have a right, (1.) To insist that their territory shall be inviolate and untouched by the operations of war, and their rights of sovereignty uninvaded. And if violations of their rights are committed, they have a right to punish the offender on account of them, or to demand satisfaction

1 Sometimes neutrals have even sent military officers to countries where war was waging, that they might learn the art of war. To send an experienced general on such an occasion, or to exempt him from penalties for accepting service abroad, would come nigh to giving assistance to one of the parties. (Hautefeuille, i. 258, edit. 2.)

from his government. They are in a manner bound to do this, because otherwise their neutrality is of no avail, and one of the belligerents enjoys the privilege of impunity.

'Caroline.'

In 1837 the Caroline,' a steamboat employed by Canadian insurgents in carrying passengers and munitions Case of the of war from our borders to the opposite shore, was captured and destroyed within our waters--the leader of the expedition against it having expected to find it within British territory. In the correspondence between the governments to which this act gave rise, Mr. Webster said that such a violation of neutrality could be justified only by a necessity of selfdefence, instant, overwhelming, having no choice of means, and no moment of deliberation.' Lord Ashburton contended that this was just such a case of necessity, but regretted that some explanation and apology for the occurrence was not immediately made. And so the matter ended. (Note 29.)

No cruiser is authorised to chase a vessel within or across neutral waters, and all captures so made, or made in violation of the neutral laws for maintaining neutrality, must be regarded as illegal with respect to the neutral, although not illegal with respect to the enemy. If such a prize is brought into any of the neutral's ports, he is authorised to seize and restore it. If it be carried into a port of another country, he has a right to demand its restoration, and the prize court of the belligerent is bound to respect the objection. If the neutral fails to exercise his rights in these respects, the government of the vessel which has been thus captured may complain or even retaliate. The wrong-doing vessel may afterwards have entrance into the waters of the injured neutral refused to it, since all admission of warvessels into neutral waters, unless required by treaty, depends on comity alone. Or its government, if the neutral prefer, or is forced to take that mode of redress, may be required to give satisfaction in regard to the injury.

§ 164.

2. Neutrals can claim from the belligerents, during war, all that respect for their flag, for their representatives, for their property, and the property of their citizens or subjects, when employed in the lawful operations of war, to which they have a right during peace. To preclude the ambassadors of the neutral from egress and ingress into enemy's territory is unfriendly, although the enemies' envoys to the neutral may be seized except on neutral soil or ships. (§ 93.) The property of neutrals has sometimes been wrongfully seized for government purposes in cases where necessity was pleaded for so doing, 1 Compare Wildman, ii. 147.

but not without the prospect held out of compensation. And this, which Louis XIV. is said to have pronounced to be a right, has been extended to their seamen. The right of pre-emption in war will be considered in another place. And the restrictions on neutral trade will be the subject of a separate chapter.

trality.

§ 165.

Every nation is bound to pass laws whereby the territory and other rights of neutrals shall be secured, and has a Municipal laws enforcing neu- right to secure itself in the same manner. Nor is there any deficiency of such laws in Christendom. Thus Great Britain, by an act passed in 1819, forbade British subjects to enter the service of foreign states under penalty of fine and imprisonment, although such an act of individuals, as we have seen, is not a violation of neutrality. The United States, by various acts, as by those passed in 1794, 1818, and 1838, have endeavoured to prevent injuries to neutral and friendly powers, as well as violations of our own rights, whether by citizens or foreigners. Thus (1.) it is made a misdemeanour for a citizen to accept or exercise within our territory a commission from a foreign power in a war against a state at peace with us. (2.) It is unlawful for any one to enlist, or induce another person within our borders to enlist, or engage him to go abroad to enlist in foreign service against a friendly power; or to institute within our territory any military expedition by land or sea, against any such power; or to augment the force of any vessel having such hostile intent; and the vessels engaged in such an enterprise by sea are subject to forfeiture. (3.) No belligerent vessels are allowed to provide themselves with military stores or with anything not equally applicable to commerce and to war. When vessels of the two belligerents are in our harbours together, they are forbidden to depart within twenty-four hours of one another, and the president is empowered to use force to send out of the waters of the United States such vessels as ought not to remain within our limits, as well as to compel the observance of our neutrality laws in general.1 In short our laws are not bad. May no officials ever make a purposely ineffectual display of maintaining these laws, and connive at their violation in secret! (Note 18.)

Case of the

§ 116.

During the late Crimean war it came to light that certain British consuls were persuading persons within our British ambassa- bounds to go out of the United States in order to enlist in that service, and that the minister at Wash

dor in 1856.

1 Kent, i. 122, 123, lect. vi., whom I have used in this summary of our neutrality laws. For captures made by ships that have committed a breach of our neutrality laws, compare § 163. Illegal augmentation of force affects captures made on the cruise for which the augmentation took place, but not afterward. (7 Wheaton Rep. 348.)