The passage of Bel through itself demanded its restitution22. But it is the privilege of the Neutral Power alone to vindicate the outrage against its Empire. "A capture," says Mr. Justice Story, "made within Neutral Waters is, as between Enemies, deemed to all intents and purposes rightful: it is only by the Neutral Sovereign that its legal validity can be called in question, and as to him, and him only, is it to be considered void. The Enemy has no rights whatever, and if the Neutral Sovereign omits or declines to interpose a claim, the property is condemnable, jure belli, to the captors. This is the clear result of the authorities, and the doctrine rests on well established principles of Public Law 23. § 218. A Neutral Nation has the same absolute ligerents Right of Sovereignty within its own Territory in Neutral respect of Belligerent Nations as it has in respect of Territory. Nations which are at peace with one another. It may accordingly grant a free passage through its Territory to the armed troops of a Belligerent Power without compromising its neutrality, if it is prepared to grant a free passage similarly to the armed troops of the other Belligerent24. "An innocent passage," says Vattel 25, "is due to all Nations with whom a State is at peace, and this duty extends to troops as well as to individuals. But it rests with the Sovereign of the Country to judge whether the passage be innocent, and it is very difficult for the passage of an army to be entirely so." "It is to 22 The Eliza Ann, 1 Dodson, p. 244. 23 The Anne, 3 Wheaton, p. 446. The doctrine of the British Courts of Prize on this subject is identical with that of the American Courts. suus 24 Qui transitum cum exercitu per terras petenti concedit, ei, contra quem eodem opus habet, injuriam minime facit. Wolff, § 689. 25 L. III. c. 7. § 119. be observed," says Lord Stowell 28, that the right of refusal of passage, even upon land, is supposed to depend more on the inconvenience falling on the Neutral State, than on any injustice committed to the third party, who is to be affected by the permission. Grotius 27 and Vattel both agree that it is no ground of complaint, nor cause of war against the intermediate Neutral State, if it grants a passage to the troops of a Belligerent, though inconvenience may thereby ensue to the State beyond; the ground of the right of refusal being the inconvenience that such passage may bring with it to the Neutral State itself. Since therefore the passage of troops and especially of an army is by no means a matter of indifference, he who desires to march his troops through Neutral Territory must apply for the Sovereign's permission 29. To enter his Territory without his consent, is a violation of his right of Empire, by virtue of which his Territory is not to be employed for any use whatever, without his express or tacit permission. Now a tacit permission for the entrance of a body of troops is not to be presumed, since their entrance may be productive of the most serious consequences. If the Neutral Sovereign has good reason for refusing a passage to them, he is not obliged to grant it, the passage in that case being no longer innocent 30. With regard however to the passage of the armed vessels of a belligerent Power over what is sometimes termed the Maritime Territory of a Neutral Nation, that is, over those portions of the sea which 26 The Twee Gebroeders, 3 Ch. Rob. p. 353. 27 De Jure Belli et Pace, L. II. c. 2. § 13. 2 Kent's Commentaries American Law, Tom I. p. 119. on 29 Qui cum exercitu per terras alterius Gentis iter facere vult, transitum petere debit. Wolff, Jus Gent. § 688. 30 Droit des Gens. L. III. c. 7. § 119-121. flow within the distance of three miles from its coast, and over which it exercises a jurisdiction of its own concurrently with the common Maritime jurisdiction of Nations, the case is different. A Nation may forbid the armed fleets of a belligerent Power to enter its ports, harbours, and estuaries, or any of its internal waters; but it cannot rightfully forbid them to pass over the seas which wash its coasts, although it has a qualified jurisdiction over such seas, inasmuch as the passage of ships over such external waters, whether such ships are armed for war or fitted out for commerce, is equally innocent as regards the Nation whose coasts are washed by such waters, for it does not sustain any damage by the passage of them. of them. "It is an observation," says Lord Stowell, "that the passage of ships over territorial portions of the sea, or external water, is a thing less guarded than the passage of armies over land, and for obvious reasons. An army in the strictest state of discipline can hardly pass into a country without the greatest inconvenience to the inhabitants: roads are broken up; the price of provisions is raised ; the sick are quartered on individuals, and a general uneasiness and terror is excited; but the passage of two or three vessels, or of a fleet over external waters, may be neither felt nor perceived. For this reason the act of inoffensively passing over such portions of water, without any violence committed there, is not considered as any violation of Territory belonging to a Neutral State: permission is not usually required; such waters are considered as the common thoroughfare of Nations, though they may 31 Grotius holds that a Neutral State may refuse a passage to a Belligerent army, if it is making an unjust war, or brings with it any enemies of the Neutral State, otherwise the right of the Neutral State will be limited to regulating the passage of the Belligerent troops, and requiring hostages for their good conduct. be so far Territory as that any actual exercise of hostilities is prohibited therein 32. to bellige discretional Powers. § 219. A Neutral State, by virtue of its Right of Hospitality Empire over everything within its Territory, may rent ships impose such conditions as it pleases upon belligerent on the part vessels which enter its Territory. The circumstance of Neutral that a vessel belongs to the citizen or subject of a Belligerent State will not disentitle its master and crew from claiming the ordinary rights of hospitality from a Neutral Nation in case of immediate danger from the perils of the sea, or pressing distress owing to sickness or want of water or provisions. Merchant ships are received in general into the ports of Neutral States without any distinction between those which are the property of the Subjects of Belligerent Powers and those which are the property of the Subjects of Neutral Powers; but with regard to armed ships, of which the Captain has a Commission of War from a Belligerent Power, and particularly with regard to private ships sailing under Letters of Marque, the hospitality of Neutral States is in practice restricted for the most part to supplying them with articles of pressing necessity. Hospitality to such an extent may be regarded as a common duty of humanity; but it is an act of Comity within the discretion of the Neutral State to allow the armed ship of a Belligerent Power to have free communication with the land (libre pratique) or to permit its crew to disembark on its shores. Further, it is competent for the Neutral Power without any disregard of the duties of humanity to require any armed Belligerent ship to continue its voyage as soon as its pressing necessities have been satisfied. It is by no means a rare event for a Neutral Power to notify publicly the 32 The Twee Gebroeders, 3 Ch. Rob. p. 352. 33 Bynkershoek, Quæst, Jur. Publ. L. I. c. 8. Neutral Rights of vessels of war in Neutral waters. conditions under which the armed ships of Belligerent Powers will be admitted into its ports, and to interdict them from entering certain of its ports, as for instance its military ports. Thus in the war between the three Allied Powers and Russia in 1854, the Swedish and Norwegian Government issued a Circular Notice to the effect that, whilst it conceded to Belligerent ships of war and of commerce permission to enter its ports, it reserved to itself the faculty of interdicting to Belligerent ships of war an entrance into certain ports: to wit, the port of Stockholm, inside of the fortress of Maxholm; the port of Christiania inside of the port of Kaholm; the interior basin of the military port of Horten; the ports of Carlsten and of Carlscrona within the fortifications; and the port of Slito in Gothland inside the batteries of Eneholm. In the exercise of an analogous right of Empire over her own Territory Denmark issued a circular note in the same spirit on 2 April 1854, reserving to herself the right of interdicting Belligerent ships of war and transport ships from entering the port of Christiansoe3. § 220. A Neutral State, in permitting Belligerent police over ships of war to enter within her territorial waters, is Belligerent bound, if it be within its power, to render their sojourn in those waters safe to them, equally as in granting a passage to their troops over land. She is under an obligation of good faith to render their passage through her territory safe, as far as depends upon her 35; otherwise to permit the vessels of a Belligerent to enter within her ports or harbours would be to ensnare them 36. Accordingly, it is the duty of zeiten. Hamburg, 1854. 34 Circular of the Danish Minister of Foreign Affairs, of 20 April 1854, in Sammlung Officieller Actentücke in Bezug auf Schiffahrt und Handel in Kriegs 35 Transeuntibus transitus præstandus est tutus. Wolff, § 704. 36 Vattel, L. III. c. 7. § 131. |