as Right preponderates in favour of one or the other of the belligerent Parties; but in the system of Grotius the term War is used to designate any state of Contention by Force, (Status per vim certantium, quâ tales sunt,) whereas in the system of later publicists War is regarded as a Contention of Right by Force (juris sui persequendi causa concertatio,) and the term War is used to denote the state or condition of Nations which prosecute their Right by Force. Under this view of the nature of War it is the duty of Nations which have determined to take no part in the contention of belligerents, to refrain from showing favour to either Party, irrespective of all question of Right preponderating on the one or the other side; for to show favour to either of them on the ground of Right preponderating on its side would be to prejudge the question of Right, which they have determined to refer to the arbitrament of War, as too dubious to admit of being settled by an appeal to Reason. Bynkershoek accordingly observes, in commenting on the passage of Grotius, that "the justice or injustice of a war does not affect a common friend: it is not his business to sit as judge between two friends, and make each of them in turn his enemy, and to give or deny to one or the other more or less, according as he thinks his cause just or unjust. If I am neutral (medius) I cannot benefit the one, so as to do an injury to the other. But, a party may say, I will benefit both belligerents alike; I will carry to them both articles of the same character, and it is not my concern if they use them to injure one another." But here, to give the substance of Bynkershoek's further observations, both Reason and Usage intervene, and place restraint upon 2 Quæst. Jur. Publ. L. I. c. 9, § 4. Si medius sim, alteri 2 non possum prodesse, ut alteri noceam. Views of Wolff and the intercourse of neutrals with belligerents. It is not consistent with neutrality to convey to either belligerent arms or ammunition, or any warlike stores; for to furnish arms to the hands of one of two belligerent parties is to aid him directly in making war against his adversary. "Therefore," he goes on to say, "if we regard each of two belligerent Parties simply as a friend, we may carry on commerce with him, and send to him all articles of merchandise indiscriminately; but if we consider each of them to be the enemy of a friend, we must exclude from our commerce all those articles, from which harm may accrue to a friend in war3." § 211. Wolff, having discussed the Right of of Vattel. every Nation to abstain by virtue of its Natural Liberty from taking part in a War which has broken out between other Nations, goes on to say, that Neutral Nations ought to perform towards each of the belligerent Parties the same good offices, which they are bound by the Law of Nations to perform in time of Peace, unless they are bound by an express Convention with one of the Parties to perform or to abstain from performing certain good offices, which may have some reference to War, in which case they are bound to perform or to abstain from performing such good offices equally to both the belligerent Parties. To the same purport Vattel', having defined Neutral Nations to be those which in time of War do not take any part in the contest, but remain common friends of both, 3 Non licet igitur alterutri advehere ex quibus in bello gerendo opus est, ut sunt tormenta, arma, et quorum præcipuus in bello usus, milites. And again, Optimo jure interdictum est, ne quid corum hostibus submini stremus, quia his rebus nos ipsi quodammodo videremur amicis nostris bellum facere. Quæst. Jur. Publ. Univ. L. I. c. 9. + Droit des Gens. L. III. c. 7. § 103, 104. without favouring the arms of the one to the exclusion of the other, observes that so long as a Neutral Nation wishes securely to enjoy the advantages of her Neutrality, she must in all things show a strict impartiality towards the belligerent Parties. He then proceeds to consider in what consists this impartiality, which a neutral Nation ought to observe. "It solely relates to war and includes two articles. I. To give no assistance where there is no obligation to give it, nor voluntarily to furnish troops, arms, ammunition, or anything of direct use in war. I do not say 'to give assistance equally,' but 'to give no assistance;' for it would be absurd that a State should at one and the same time assist two Nations at war with each other; and besides, it would be impossible to do it with equality. The same things, the like number of troops, the like quantity of arms, of stores, &c. furnished under different circumstances, are no longer equivalent succours. 2. In whatever does not relate to war, a neutral and impartial Nation must not refuse to one of the Parties on account of his present quarrel, what she grants to the other. This does not deprive her of the liberty to make the advantage of the State still serve as her rule of conduct in her negotiations, her friendly connections, and her commerce. When this reason induces her to give preferences in things which are ever at the disposal of the possessor, she only makes use of her right, and is not chargeable with partiality. But to refuse any of those things to one of the Parties purely because he is at war with the other, and because she wishes to favour the latter, would be departing from the line of strict neutrality. I have said that a neutral State ought to give no assistance to either of the Parties, when under no obligation to give it. This restriction is necessary. We Views of 5 have already seen that when a Sovereign furnishes the moderate succour due in virtue of a former defensive alliance, he does not become an associate in the war. He may therefore fulfil his engagement, and yet observe a strict neutrality. Of this Europe affords frequent instances.' § 212. "Perfect Neutrality," says Martens, "consists, I. in abstaining from all participation in the operations of a war; 2. in behaving impartially in regard to everything which may be useful or necessary to the belligerents in respect of the war, either by granting or refusing to the one Party what we have granted or refused to the other, or at least by continuing the same behaviour which we have maintained in time of peace. As long as a Nation satisfies these duties, she has a right to demand to be treated as a friend by each of two Belligerent Parties, and to enjoy the independence which the Law of Nature assures to her, and which she is not obliged to sacrifice to the interests of the Belligerent Parties. But the Natural Rights and Duties of Neutrality being susceptible of modifications, the duties to be performed in case of war, either on the part of a Belligerent Nation towards a Neutral, or on the part of a Neutral Nation towards a Belligerent, may be extended or restricted by Conventions. Hence there results what is termed a Conventional Neutrality, which may apply either to the whole of the dominions of a Power, or only to portions of them, such for instance as the Austrian Low Countries in 1733." Martens then proceeds to consider in detail the rights and duties of Neutrals under three heads: 1. the succours which may be furnished to the Belligerent Parties; 2. the conduct to be observed in 5 Droit des Gens, L. III. c. 6. § 101. 6 Précis du Droit des Gens, L. VIII. c. 7. § 306, 307. regard to the territory of the Neutral Power; 3. Commerce. On the first two of these heads it may be observed that there is not much divergence either of theory amongst Jurists, or of practice amongst Statesmen in the present day. Thus a Nation may have engaged itself by Treaty to furnish limited succours to another Nation in case that its territory should be invaded by any third Nation; and in practice the fulfilment of such Treaty-engagements has been held to be not inconsistent with neutrality'. On the other hand the sacredness of Neutral territory is recognised in all Courts which hold cognisance of questions of Prize of War. It is on the third head of Commerce that differences of opinion are still found to prevail amongst Publicists, and that disputes in practice still arise between Nations, from the tendency of Belligerents to overlook the fact that the political duty of Nations, which are at peace with all other Nations, does not require them to restrain their Subjects from continuing their customary commerce by reason of war existing between other Nations. commerce territory of Powers. § 213. "That an enemy may come into the terri- Perfect Liberty of tory of a Neutral Power, and there purchase and thence remove any article whatsoever, even instru- within the ments of war, is a Law of Nations, long and uni- Neutral versally established." Such is the language of the Attorney General of the United States in his Report addressed on 20 January 1796° to the Secretary of State. Vattel1 to the same purport writes, "Further 7 Vattel, L. III. c. 6. § 9, supports this view and combats with great earnestness the opposite view of Wolff. § 736. 8 Vattel, L. III. c. 7. § III. De Tastet v. Taylor, 4 Taunton, p. 238. Bell v. Reid, 1 Maule and Selwyn, p. 727. 9 Opinions of the Attorneys General of the United States, Tom. I. p. 62. 10 Droit des Gens, L. III. c. 7. § 110. |