rights of belligerents and neutrals are fixed and determined, as essential to the solution of the questions we are called on to decide.

I proceed, therefore, to consider the subject of neutral obligations in time of war.

Elements of neu trality.

Neutrality may be said to be the status of a country relatively to two others which are at war with one another, while it remains at peace with both, and gives assistance to neither. The last-mentioned condition is plainly an essential element of that which goes before it; for, to give assistance to either of the belligerents would be indirectly to take a part in the war, and would afford a sufficient reason to the one whose enemy was thus assisted, for having recourse to force to prevent such assistance from being given.

It is obviously immaterial in what form the assistance is rendered, so Obligations of the long as its purpose and effect is to add to the means of the neutral state. belligerent for the purpose either of offense or defense. Troops, men, horses, ships, arms, munitions of war of every kind, money, supplies-in short, whatever can add to the strength of the belligerent for the purpose either of attack or defense-are things that cannot be supplied by a neutral state to either belligerent without forfeiting the character of neutrality and the rights incidental to it.

In like manner the neutral sovereign cannot allow the use of his ter ritory for the passage of troops of either belligerent, still less allow it to be used by either as a base of hostile operations. He cannot lend his ships for the transport of troops, arms, or munitions of war, or even for the transmission of dispatches. Whatever restrictions, in the exercise of his territorial rights, he imposes on the one belligerent, he must impose on the other also; for restraints-however lawful and proper in themselves-enforced as against the one, dispensed with as regards the other, are indirectly assistance given to the one so favored.

Obligations of the

state.

Whatever obligations attach by the general principles of the law of nations to the state or community, as a whole, are equally subits of a neutral binding on its subjects or citizens. For the state or community is but the aggregate of its individual members, and whatever is forbidden to the entire body by that law, is equally forbidden to its component parts. In this sense, and in this sense only, can it be said that international law-in other words, the common law of nationsforms part of the common law of England; for the greater part of the rules of international law, by which nations now consent to be bound, are posterior in date by many centuries to the formation of the common law of England. Nevertheless, Great Britain forming part of the great fraternity of nations, the common law adopts the fundamental principles of international law, and the obligations and duties they impose, so that it becomes, by force of the municipal law, the duty of every man, so far as in him lies, to observe them; by reason of which any act done in contravention of such obligations becomes an offense against the law of his own country.

Liability of the

subjects.

But the subject who thus infringes the law of his own country by violating the neutrality which that law enjoins him to mainstate for acts of its tain, is amenable for his offense to the law of his own country alone, except when actually taking part in the war as a combatant, when, of course, he is liable to be dealt with according to the laws of war. The offended belligerent has otherwise no hold on him. International law knows of no relations between a state and the subjects of another state, but only of those which exist between state and state. But this being so, the belligerent, against whom a breach of neutrality has been committed by the subject of a neutral

state, as distinguished from the state itself, may have a right to hold the state responsible, and to look to it for redress. For the state, that is, the community as a whole, is bound to restrain its individual members from violating obligations which, as a whole, it is bound to fulfill. Not, however, that the responsibility of the state for the acts of its subjects is absolute and unlimited. Reason has set bounds to a responsibility which would otherwise be intolerable. For it must be remembered that the consequence of a violation of neutrality is the right of the offended belligerent to treat the offending neutral as an enemy, and declare war against him. He is not bound to accept pecuniary amends as an alternative.

Now, reason points out that the government of a country can only be held responsible for breaches of neutrality committed by its subjects, when it can reasonably be expected to prevent them.

There are things which a government can prevent, and others which it cannot. It can prevent things that are done openly and in defiance of law. The open levying of men, and expeditions departing from its territory by land or water, are things which a government would properly be expected to prevent, and for which, if not prevented, it would be answerable.

But a government could not be so held in respect of things it caunot prevent; such as the conduct of individual subjects in enlisting or serving in the land or sea force of a belligerent, or things done clandestinely or surreptitiously, so as to elude observation or detection, notwithstanding the exercise of proper diligence to prevent the law from being broken. But then the exercise of such diligence is part of the duty of a government, and the condition of its immunity. If this diligence has been wanting, a belligerent has just cause to hold the neutral state responsible for wrongful acts done by its subjects, in violation of neutrality, and from which he, the belligerent, has suffered. We are thus brought face to face with the all-important question of what is this "diligence" which a government is thus bound to exercise to prevent breaches of neutrality by its subjects. I shall endeavor presently to grapple with that question; but I prefer first to complete my survey of the relative rights and obligations of belligerents and neutrals.

And as the principal complaint against the British government relates to vessels of war furnished by its subjects to the Confederate States, I shall, in the first place, apply myself to the question how far the subjects of a neutral state can, consistently with the obligations of neutrality, supply a belligerent with articles of warlike use in the way of trade and business.

Rights of neutral

trade.

For, thus far, we have been dealing with assistance rendered to one belligerent against another, animo adjuvandi, for the direct purpose of enabling him to overcome or resist his opponent. subjects in respect of Very different considerations present themselves when we have to deal with assistance furnished to a belligerent, not animo adjuvandi, with the object of enabling him to overcome his enemy, but animo commercandi-in the way of trade and commerce.

tween a State and its

Here a broad and important distinction between the state and its subjects presents itself. The former, generally speaking, can- Difference be not, consistently with neutrality, under any circumstances, subjects in regard to supply to one of two belligerents articles which may be trade. of use to him in carrying on war. For, as governments do not engage in trade, save in exceptional cases of very rare occurrence-as, for instance, when a government disposes of ships for which it has no usenothing supplied by a government to a belligerent can be supplied

otherwise than animo adjuvandi; that is, for a purpose inconsistent with neutrality. But its subjects stand, in this respect, on a very different footing. The subject, indifferent to both the belligerent parties, may be willing to sell to either articles of warlike use in which he is in the habit of dealing. Assistance, and sometimes very material assistance, is thus afforded to a belligerent, who, by this means, is enabled to carry on war. Is assistance thus afforded, not animo adjuvandi, but animo commercandi, a breach of neutrality, or is it to be considered as within the right of the neutral subject?

Now, the subjects of a neutral state having in time of peace the right of carrying on trade with a belligerent, on what ground of reason or justice, it may be asked, should their right of peaceful trade be taken away, and their interests thus be damaged by reason of a war which they have had no share in bringing about, and in which they have no concern? The condition of neutrality, in not supplying anything to either belligerent with the object of assisting him against the other, or which would not be as readily supplied to the other, being observed, what reason can be suggested why the rights of the neutral in his relations with either belligerent, as they existed before war broke out, should be disturbed or altered?

An Italian jurist thus writes:

Il fatto della vendita degli oggetti di contrabbando avvenuta in territorio neutrale è opera dello stato stesso nella sua qualità di persona pubblica, o invece è l'operato di suoi privati cittadini, che fanno di ciò la loro abituale professione. Nel primo caso è fuor di dubbio che vi sarebbe motivo di laguanza per parte di uno dei belligeranti, poichè non entra negli officii dello stato l'attendere a privati mercimonii, ed ogni suo atto ha un valore internazionale o in senso di un diritto o in senso di una obbligazione, che non si può mai dissimulare. Ma lo stesso non si può dire ove la vendita degli oggetti, e quando sia il caso la fabbrica degli stessi, fosse il fatto particolare di privati cittadini di quello stesso stato. In esso non potrebbe ravvisarsi un fine politico come nell'azione pubblica del governo, non essendo lo scopo di tali cittadini che commerciale od industriale, epperò non lesivo in modo alcuno degli altrui diritti.

Se gli autori che hanno discusso la presente questione avessero ritenuta la capitale differenza che passa tra gli atti pubblici del governo e quelli dei privati cittadini, non avrebbero al certo classificato come atti contrari alla condizione neutrale la vendita fatta in territorio neutro da privati cittadini di armi e munizioni da guerra.'

Nevertheless, it is certain that the rights of a nation, as regards trade Effect of war on with another nation, do undergo very considerable modifineutral trade. cations, when such second nation engages in war with a third; and when it is said by some writers that neutrality is only the prolongation of the state of peace between the neutral and the belligerent, this language must be taken with considerable allowance. For, it is certain that, as regards trade and commerce, the rights of the peaceful neutral undergo very serious diminution. By the admitted rules of international law, a belligerent may seize articles contraband of war in transit by sea from the neutral to his enemy. By blockading his enemy's port he may shut the commerce of the neutral even in articles not capable of being applied to warlike use. True, say those writers who advocate the rights of neutrals against belligerents; but if the rights of the neutral subject in respect of trade had been regulated according to natural law, or, to speak more philosophically, according to the law which reason points out as for the common benefit of all, those rights would have remained undisturbed and unaffected by the wars of others with whom his own country remained at peace. But between distant nations trade can be carried on only by sea. The nations most powerful at sea have generally been those who have waged war on the ocean.

Avio "Nuova teoria dei rapporti giuridici internazionali," cited in Gola, “Corso di diritto internazionale," vol. 3, p. 30.

In such wars they have sought to weaken their adversaries by crippling their commerce, and to effect that object have imposed restraints on peaceful states less powerful than themselves. Some countries have even gone so far, in early times, as to interdict all commerce whatever with nations with which they were at war. The sense of mankind, it is true, revolted against pretensions so extravagant, and after a time the restraints which belligerents were entitled to impose on neutral commerce were rendered less oppressive. But they still bear the impress of their origin, as having been imposed by the strong upon the weak. They are manifestly in derogation of the common right of peaceful trade which all maritime nations enjoy in time of peace, but which is thus made to submit to restraint in order to serve the purposes of those by whom the peace of the world is disturbed.

Let us see how these restraints on neutral commerce became settled in time. As they existed till a very recent period, according to the general practice of nations, they were as follows:

1. Though the belligerent might resort to the neutral territory to purchase such articles as he required, even for his use in war, and the neutral in selling him such articles would be guilty of no infraction of neutrality, yet, in regard to things capable of being used in war, and which thenceforth received the appellation of " contraband of war," if, instead of the belligerent himself conveying them, the neutral undertook to convey them, such articles, if intercepted by the adversary, though the property of the neutral in them had not been transferred to the belligerent, were liable to be seized and became forfeited to the captor. If the article was of a doubtful character, ancipitis usus, that is, one that might be applied to purposes of peace or of war, the liability of seizure depended on whether the surrounding circumstances showed that it was intended for the one use or the other.

2. If either belligerent possessed sufficient force at sea to bar the access to a port belonging to his enemy, he was entitled to forbid the neutral all access to such port for the purpose of trade, however innocent and harmless the cargo with which his ship might be charged, under the penalty of forfeiting both ship and cargo.

3. The neutral was prohibited from carrying the goods of a belligerent. such goods not being protected by the neutral flag, but being subject to seizure.

4. Besides this, according to the practice of France, the neutral was prohibited from having his goods carried in the enemy's ship, and if the ship was taken the goods became prize.

Lastly, to enforce the rights thus assumed by powerful belligerents, the neutral had further to submit to what was called the right of search, in order that the belligerent might satisfy himself whether goods of the enemy, or goods contraband of war intended for the enemy, were being conveyed in the neutral ships.

By the wise and liberal provisions of the declaration of Paris of 1856, the last two oppressive restraints on the trade of neutrals, mentioned under heads 3 and 4, have, as between most of the leading nations of the world, been done away with. The others remain. America has not as yet formally assented to the declaration of Paris. The two rules in question do not, however, come into play on this occasion. But the two first of the restraints put on neutral commerce occupy a prominent place in the discussions which have occurred in the course of this inquiry. Both of them are manifestly restraints, and Blockade and conrestraints of a very serious character, on the natural free- traband of war. dom of neutral commerce. The advantage thus acquired of preventing

the trade of the neutral in articles of warlike use, at a time when that trade is the most likely to be profitable to him, and still more that of preventing it in any shape by the blockading of an enemy's port, is obviously obtained only at the expense of the peaceful rights of neutral

commerce.

The right of blockading a port, and thereby excluding from it neutral commerce of every sort, has been justified by assimilating it to that exercised by the besieger of a city or fortress, in investing it and debarring all access to it. But the analogy is not complete, for the immediate purpose of the besieger is to take the city or fortress, while that of the blockade is, not to capture the blockaded port, but to enfeeble the enemy and diminish his means by the gradual destruction of his commerce, which of course necessarily involves a corresponding loss inflicted on the commerce of the neutral. And though it may be said that, just as the besieger of a city or fortress is in occupation of the territory which surrounds it, and is, therefore, by the law of war, master of such territory and entitled to give laws to all within its ambit, and has thus full right as well as power to forbid access to it, so the blockading force has occupation of the territorial waters and can exercise a similar right in respect of them; yet for the most part such occupation is constructive only, and the blockading force is generally in the habit of sending cruisers far beyond the limits of the territorial waters, to intercept vessels intending to enter the blockaded port.

On whatever ground the right of blockade thus conceded to belligerents may be placed, it is obvious that it is a very serious encroachment on the freedom of the neutral in the peaceful pursuit of commerce.

In M. Calvo's work, "Le droit international," blockade is spoken of as "la plus grave atteinte qui puisse être portée par la guerre au droit des neutres.1"

Fiore says: "Le blocus est odieux et contraire à l'indépendance des peuples neutres; parcequ'il n'empêche pas seulement le commerce de certaines matières déterminées, comme la contrebande de guerre; mais il détruit toute espèce de commerce de quelque nature que ce soit avec les lieux assiégés et bloqués."2

Nor must it be forgotten, with respect to the trade carried on in defiance of a blockade, that the neutral owes nothing to the blockading belligerent, who, for his own purposes, thus seeks to shut out the innoc uous commerce of the neutral with his enemy, regardless of the loss and injury he is thereby inflicting on him.

The right to intercept articles of warlike use has been for the most Contraband of war. part treated by earlier writers on international law as an admitted encroachment on the neutral in respect of freedom of trade. It has been justified on the score of the necessity in which the belligerent captor is placed, of preventing that which will be used to his own hurt from reaching his adversary; or as arising from the law of self-defense, which gives to the belligerent the right of stopping things which may be used against him, while on their way to his enemy, and, furthermore, of confiscating them to his own use as a penalty on the neutral for having intended to convey them to the enemy.

Looked at from this point of view, it is said that the right of the belligerent to intercept this species of commerce, and the liability of the neutral to have his property captured and confiscated under such circumstances, do not arise out of obligations inherent in the nature of neutrality. They are purely conventional, and, as it were, a compromise

1 Vol. ii, p. 521.

*Vol. ii, p. 446.