ington was aiding therein. It could not be complained of, if the United States government showed displeasure at such proceedings, demanded his removal, and even ceased to hold communication with him as the agent of the British government. In what, now, did his offence consist, in a breach of our law only or in a violation of international law? In answer it may be said that if the earlier usage is to decide, there was no direct breach of international law; if the more modern, there was a breach. But supposing this to be doubtful, in breaking our laws of neutrality, which have the peculiar character of supporting the laws of nations, and that too when he was the representative of another sovereignty, he attacked the sovereignty of the nation and in this way came in conflict with law international, which aims to secure the sovereignty of all the nations who acknowledge it. And even if our law could have been evaded by inducing men to go abroad for another object, and there persuading them to enlist in a war against one of our friends, there would still have remained ground of complaint against the agents in such a scheme, as disturbers of our relations with a friendly power.

§ 166 b.

parties in an in

A foreign power, as we have seen (§ 40, § 41), may assist a state to repress a rebellion, and may not assist Relation of neurevolters themselves, but, when these have fairly trals to the created a new government, may enter into relations ternal war. with it, without unfriendliness towards the original state. Meanwhile, until the fact of a new state is decided by the issue of the struggle, the position of neutrals is a delicate one, and one to which little attention has been paid by writers on the law of nations. Theoretically we say: (1.) The relation, if the foreign power stands aloof, is not that of neutrality between states, but of neutrality between parties, one of which is a state, and the other trying to become a state.

(2.) The foreign power, therefore, cannot plead the laws of neutrality for treating both parties alike, for the one is an acknowledged state, the other is not. Thus whatever favours it has granted to the cruisers of the friendly state it is not bound to grant to the revolters, or rather, it is bound not to grant to them the same privileges, for by so doing, it admits their right to prey on the commerce of its friend-which only states can do.

(3.) In a certain sense the foreign power must regard the revolters as belligerents, entitled to all those rights which humanity demands, as that of asylum for troops or vessels in distress, or fleeing from a superior power-the same sorts of rights which would be granted to political exiles. The vessels of such revolters cannot be regarded as piratical, for their motive is to

establish a new state, while that of pirates is plunder. A pirate never ends his war with mankind, they fight for peace. (Compare Note 12 on § 137, and see Note 19.)

(4.) What measures can the state at war with a part of its subjects take in regard to foreign trade with revolted ports? To say that it cannot apply the rules of blockade, contraband and search, because the ports are its own, is mere pettifogging. But can it close these ports by an act of the government, as it once opened them? At first view it seems hard to refuse this right to a nation, but the better opinion is that foreigners, by having certain avenues of trade open to them, have thereby acquired rights. (§ 28.) The nation at war within itself must overcome force by force, but this method of closing ports supersedes war by a stroke of the pen. It is the fact of obstruction in the ordinary channels of trade which foreign nations must respect. If the state in question cannot begin and continue this fact, it must suffer for its weakness. (Note 20.)

But international law does not make all these distinctions. The colonies of Spain, as yet unrecognised, were regarded by us as belligerent nations, having, so far as concerns us, the sovereign rights of war, and entitled to be respected in the exercise of those rights? And so England and France act in the war which is now upon us. (7 Wheaton Rep. 337.)

SECTION II. Of the Rights and Liabilities of Neutral Trade.

neutral trade.

§ 167.

Having considered the relations between belligerent and neuImportance of tral states, we now proceed to inquire how war affects question touchthe commerce of neutral persons, or the rights and ing rights of liabilities of neutral trade. This is a subject of greater practical importance, perhaps, than any other in international law; for if the rule restricting the freedom of neutral trade verges to the extreme of strictness, the evils of war are very much increased, and its non-intercourse is spread over a wider field. It is also a subject in which the jarring views of belligerents and of neutrals have hitherto prevented fixed principles on many points from being reached, so that neither have different nations agreed in their views, nor has the same nation at different times been consistent, nor have text-writers advocated the same doctrines. Yet the history of opinion and practice will lead us to the cheering conclusion that neutral rights on the sea have been by degrees gaining, and to the hope that hereafter they will be still more under the protection of international law than at any time past.

§ 168.

The nationality of individuals in war depends not on their origin or their naturalisation, but upon their domicil. Who are neutrals He is a neutral who is domiciled of free choice in a and what is neutral property? neutral country, and he an enemy who is domiciled in an enemy's country. (Note 21.) Hence

1. As domicil can be easily shaken off, a person in the prospect of war, or on its breaking out, may withdraw from the enemy's to another country with the intention of staying there, and thus change his domicil. If he should return to his native country, fewer circumstances would be required to make out intention than if he betook himself to a foreign territory. If against his will and by violence at the breaking out of war he was detained in the belligerent country, his longer stay would be regarded as the forced residence of a stranger, and probably all disadvantageous legal consequences of his domicil there would cease.

2. If a country is conquered during a war, its national character changes, although it may be restored again at peace, and so the nationality and liabilities of its inhabitants engaged in business change.

3. But a person having a house of commerce in the enemy's country, although actually resident in a neutral country, is treated as an enemy so far forth as that part of his business is concerned, or is domiciled there quo ad hoc. On the other hand, a person having a house of commerce in a neutral country and domiciled among the enemy, is not held to be a neutral. This is the doctrine of the English courts, adopted by the American. It is impossible,' says Dr. Wheaton ('El.' iv. i. § 20), 'in this not to see strong marks of the partiality towards the interests of captors, which is perhaps inseparable from a prize code framed by judicial legislation in a belligerent country, and adopted to encourage its naval exertions.'

In general, property follows the character of its owner. Thus neutral ships are ships owned by neutrals, that is by persons domiciled in a neutral country, and the same is true of goods. Hence in partnerships, if one owner is a neutral and the other an enemy, only the property of the latter is liable to capture. But here we need to notice: 1. That ships cannot easily transfer their nationality on a voyage, the act of so doing being presumptive evidence of a fraudulent intention to screen them from the liabilities of their former nationality.

2. That when a ship sails under a hostile flag, she has, by whomsoever owned, a hostile character.

3. If a neutral's ship sails under an enemy's licence to trade, she becomes hostile; for why should she have the advantages of a close connection with the enemy without the disadvantages?

4. If a neutral is the owner of soil in a hostile country, the produce of such soil, exported by him and captured, is considered hostile. This is on the principle that the owner of soil identifies himself, so far forth, with the interests of the country where his estate lies.1

General principles as to lia

§ 169 a.

When a war arises, one of three things must take place. Either the neutral trade may go on as before, and belligerents have no right whatever to injure or bility to capture. limit it in any manner; or the belligerents may, each of them, interdict any and all trade of neutrals with the other; or there are certain restrictions which may be imposed on neutral trade with justice, and certain other restrictions, which must be pronounced unjust.

1. Few have contended that the trade of neutrals ought to be entirely unfettered, for a part of that trade may consist in supplying one foe with the means of injuring the other, and the siege or blockade of strong places would be nugatory, if neutrals could not be prevented from passing the lines with provisions. Will it be said that such trade is impartial-that it favours one party in a war no more than the other? It would be better to say that it is partial now to one side and now to the other, and that a series of assistances, rendered to a party in a struggle, although they might balance one another-which would not generally be true in fact-are unjust, because they only put off or render fruitless the effort to obtain redress, with which the war began.

2. On the other hand it will not be claimed that a belligerent may justly forbid neutrals to carry on every kind of trade with his enemy. I may have a right to distress my foe in order to bring him to a right mind and procure redress, but what right have I to distress my friend, except so far as he takes the part of my foe, and thus ceases to be my friend? Will it be said that all trade with one foe is a damage to the other, and may therefore be broken up? No doubt it is indirectly an injury, but indirect results of lawful business no more justify interference than the advance of one nation in wealth and industry justifies others in endeavouring to cripple its resources. The neutral might with as much justice declare war, because the belligerent injured him by a fair operation of war-by blockading the port of his foe for instance as a party to a war require that all trade should bend to his convenience. And besides this, the same humanity which allows internal trade to remain undisturbed during an invasion, ought to leave the neutral's commerce in some degree free to take its wonted course.

1 Compare Wheaton's El. iv. 1, §§ 17, 22; Kent, i. 74, lect. iv.

3. It is therefore allowed on all hands that some restrictions may be imposed on neutral trade, not such as a belligerent may select, but definite and of general application. The law of nations on this subject has been viewed as a kind of compromise between neutral and belligerent right. Neutrals may legitimately carry on all sorts of trade, and belligerents may interrupt all. Hence nations have waived their rights and come to a certain middle ground, where some rights of both parties are saved and some thrown overboard. But this view seems to be objectionable, as making the actual neutral rights to arise out of a state of things which is a jural impossibility. It cannot at the same time

be true that neutrals should enjoy a particular trade, and belligerents obstruct that trade. There must be kinds of trade which neutrals have a right to engage in, and herein belligerents are obliged to leave them undisturbed. Otherwise the law of nations has no jural foundation.

When we ask, however, what degree of restriction may be justly applied to neutral trade, we feel a want of a definite principle to guide us in the answer: we are forced to say somewhat vaguely that the restrictions must be such as to keep neutral trade from directly assisting either party in the armed contest, and the smallest possible, consistent with the ends which a just war involves.

If these views are correct, it is wrong for the neutral and for his subjects to engage in certain kinds of trade during a war, as truly as it is right for him to engage in certain others. If, for instance, he holds the same doctrine with the belligerent in regard to contraband of war, he would violate the rights of one friend by supplying another with such articles. And yet we by no means affirm that law now requires the neutral nation to prevent such trade on the part of individuals by vigilance and penalty. All that can be required of him is, especially when his opinions on the justice of the war may vary greatly from those of his belligerent friend, that he should be passive, while one friend tries to obtain what he calls redress from another. The rules of war are to be put in force by the parties immediately concerned he is not under obligation to add to his trouble and expense by a new commercial police.

The restrictions on neutral trade known to international law have related for the most part:

1. To the conveyance of hostile goods in neutral ships, and of neutral goods in hostile ships, or to the relation between goods and vessels having different nationalities.

2. To the conveyance of certain kinds of articles, having a special relation to war.

3. To conveyance to certain places specially affected by the operations of war; and sometimes