LECTURE VI.

OF THE GENERAL RIGHTS AND DUTIES OF NEUTRAL NATIONS.

THE rights and duties which belong to a state of neutrality, form a very interesting title in the code of international law. They ought to be objects of particular study in this country, inasmuch as it is our true policy to cherish a spirit of peace, and to keep ourselves free from those political connections which would tend to draw us into the vortex of European contests. A nation that maintains a firm and scrupulously impartial neutrality, and commands the respect of all other nations by its prudence, justice, and good faith, has the best chance to preserve unimpaired the blessings of its commerce, the freedom of its institutions, and the prosperity of its resources. Belligerent nations are interested in the support of the just rights of neutrals, for the intercourse which is kept up by means of their commerce, contributes greatly to mitigate the evils of war. The public law of Europe has established the principle, that, in time of war, countries not parties to the war, nor interposing in it, shall not be materially affected by its action; but they shall be permitted to carry on their accustomed trade, under the few necessary restrictions which we shall hereafter consider.

Neutrals. must be im

It belongs not to a common friend to judge between partial. the belligerent parties, or to determine the question of right between them. (a) The neutral is not to favor one of *116 them to the detriment of the other; and it is an essen

tial character of neutrality, to furnish no aids to one party, which the neutral is not equally ready to furnish to the other. (b) A nation which would be admitted to the privileges

(a) Bynk. b. 1, c. 9. Burlamaqui, vol. ii. part 4, c. 5, sec. 16, 17.

(b) Mr. Manning, after referring to the practice of former times on the subject of foreign levies in neutral countries, and critically examining the reasoning of Vattel, justly concludes that foreign levies may not be allowed to one belligerent, while

of neutrality, must perform the duties it enjoins. Even a loan of money to one of the belligerent parties, is considered to be a violation of neutrality. (a) A fraudulent neutrality is no neutrality. But the neutral duty does not extend so far as to prohibit the fulfilment of antecedent engagements, which may be kept consistently with an exact neutrality, unless they go so far as to require the neutral nation to become an associate in the war. (b) If a nation be under a previous stipulation made in time of peace, to furnish a given number of ships or troops to one of the parties at war, the contract may be complied with, and the state of peace preserved, except so far as the auxiliary forces are concerned. The cantons of Switzerland have been accustomed to furnish such assistance to, the other European powers. In 1788, Denmark furnished ships and troops to Russia, in her war with Sweden, in consequence of a previous treaty prescribing the amount; and this was declared by Denmark to be an act consistent with a spirit of amity and commercial intercourse with Sweden. It was answered by the latter in her counter declaration, that though she could not reconcile the practice with the law of nations, yet she embraced the Danish declaration, and confined her hostility, so far as Denmark was concerned, to the Danish auxiliaries furnished to Russia. (c) But, if a neutral power be under contract to furnish succors to one party, he is said not to be bound if his ally was the aggressor; and in this solitary instance the neutral may examine into the merits of the war, so far *117 as to see whether the casus fœderis exists. (d) An inquiry of this kind, instituted by the party to the contract, for the

purpose

refused to his antagonist, consistently with the duties of neutrality, unless such an exclusive privilege was granted by treaty antecedent to the war. Manning's Commentaries, p. 180.

(a) Mr. Pickering's Letter to Messrs. Pinckney, Marshall, and Gerry, 2d of March, 1798. In Dewutz v. Hendricks, 9 Moore's C. B. Rep. 586, it was held to be contrary to the law of nations, for persons residing in England to enter into engagements to raise money, by way of loan, for the purpose of supporting subjects of a foreign state in arms against a government in friendship with England, and no right of action attached upon any such contract.

(b) Vattel, b. 3, c. 6, sec. 99, 100, 101. Ib. c. 7, sec. 104, 105. Martens's Summary, b. 8, c. 5, sec. 9. Mr. Jefferson's Letter to Mr. Pinckney, September 7th, 1793. (c) New Ann. Reg. for 1788, tit. Public Papers, p. 99.

(d) Bynk. Q. J. Pub. b. 1, c. 9. Vattel, b. 2, c. 12, sec. 168.

Neutral ter

of determining on its binding obligation, holds out strong temptations to abuse; and, in the language of Mr. Jenkinson, (a) "when the execution of guaranties depends on questions like these, it will never be difficult for an ally who hath a mind to break his engagements, to find an evasion to escape." ritory invio- A neutral has a right to pursue his ordinary comlable. merce, and he may become the carrier of the enemy's goods, without being subject to any confiscation of the ship, or of the neutral articles on board; though not without the risk of having the voyage interrupted by the seizure of the hostile property. As the neutral has a right to carry the property of enemies in his own vessel, so, on the other hand, his own property is inviolable, though it be found in the vessels of enemies. But the general inviolability of the neutral character goes further than merely the protection of neutral property. It protects the property of the belligerents when within the neutral jurisdiction. It is not lawful to make neutral territory the scene of hostility, or to attack an enemy while within it; and if the enemy be attacked, or any capture made, under neutral protection, the neutral is bound to redress the injury, and effect restitution. (b) The books are full of cases recognizing this principle of neutrality. In the year 1793, the British ship Grange was captured in Delaware Bay by a French frigate, and upon due

(a) Discourse on the Conduct of the Government of Great Britain in respect to Neutral Nations, 1757.

(b) Grotius, b. 3, c. 4, sec. 8, note 2. Bynk. b. 1, c. 8. Vattel, b. 3, c. 7, sec. 132. Burlamaqui, vol. ii. part 4, c. 5, sec. 19.

1 The doctrine in the text was the subject of great discussion in a case of national interest.

The governments of the United States and of Portugal, by a convention of February 26th, 1851, submitted their differences, relative to "The General Armstrong," privateer, destroyed by an English squadron, in the port of Fayal, September 27th, 1814, to the decision of the President of the French Republic. The decision of Louis Napoleon, given November 30th, 1852, was in favor of Portugal, suggesting the following grounds:

That the English boats, approaching the privateer, in the night preceding the action, were ordered off, and fired upon by the American crew:

That the feebleness of the Portuguese garrison rendered an armed intervention impossible, and the governor endeavored, by remonstrance, to preserve the peace of his port: And the commander of the privateer, not having, from the beginning, had recourse to the intervention of the neutral power, and having employed arms to repel the attack, and thus disregarded the neutrality of the port, the neutral sovereign was released from the obligation to assure him protection by any other mode than pacific intervention.

complaint, the American government caused the British ship to be promptly restored. (a) So in the case of The Anna, (b) the sanctity of neutral territory was fully asserted and *118 vindicated, and restoration made of property captured by

a British cruiser near the mouth of the Mississippi, and within the jurisdiction of the United States. It is a violation of neutral territory for a belligerent ship to take her station within it, in order to carry on hostile expeditions from thence, or to send her boats to capture vessels being beyond it. No use of neutral territory, for the purposes of war, can be permitted. This is the doctrine of the government of the United States. (c) It was declared judicially in England, in the case of The Twee Gebroeders; (d) and though it was not understood that the prohibition extended to remote objects and uses, such as procuring provisions and other innocent articles, which the law of nations tolerated, yet it was explicitly declared, that no proximate acts of war were in any manner to be allowed to originate on neutral ground: and for a ship to station herself within the neutral line, and send out her boats on hostile enterprises, was an act of hostility much too immediate to be permitted. No act of hostility is to be commenced on neutral ground. No measure is to be taken that will lead to immediate violence. The neutral is to carry himself with perfect equality between both belligerents, giving neither the one nor the other any advantage; and if the respect due to neutral territory be violated by one party, without being promptly punished by *just animadver- *119 sion, it would soon provoke a similar treatment from the other party, and the neutral ground would become the theatre of war. (e) 1

(a) Mr. Jefferson's Letter to Mr. Ternant, of 15th May, 1793.

(b) 5 Rob. Rep. 373.

(c) Mr. Randolph's Circular to the Governors of the several States, April 16th, 1795. The American commissioners to the court of France, (Benjamin Franklin, Silas Deane and Arthur Lee,) in their circular letter in 1777, to the commanders of American armed vessels, carried very far the extension of neutral protection, when they applied it indiscriminately to all captures "within sight of a neutral coast." Diplomatic Correspondence, by J. Sparks, vol. ii. 110. Vide supra, Lecture II. (d) 3 Rob. Rep. 162.

(e) When Don Miguel, in 1828, ascended the throne of Portugal, by a vote of the

1 By a treaty, ratified July 4, 1850, between the United States and Great Britain, these

If a belligerent cruiser inoffensively passes over a portion of water lying within neutral jurisdiction, that fact is not usually considered such a violation of the territory as to affect and invalidate an ulterior capture made beyond it. The passage of ships over territorial portions of the sea, is a thing less guarded than the passage of armies on land, because less inconvenient, and permission to pass over them is not usually required or asked. To vitiate a subsequent capture, the passage must at least have been expressly refused, or the permission to pass obtained under false pretences. (a)

The right of a refusal of a pass over neutral territory to the troops of a belligerent power, depends more upon the inconvenience falling on the neutral state, than on any injustice committed to the third party, who is to be affected by the permission or refusal. It is no ground of complaint against the intermediate neutral state, if it grants a passage to belligerent troops, though inconvenience may thereby ensue to the adverse belligerent. It is a matter resting in the sound discretion of the neutral power, who may grant or withhold the permission, without any breach of neutrality. (b) No belligerent power can claim the right of passage through a neutral territory, unless founded upon a previous treaty, and it cannot be granted by a neutral, where there is no antecedent treaty, unless an equality of privilege, be allowed to both belligerents. This is the reasonable and just rule to be deduced from the opinions of jurists and the conventional law of modern nations. (c)

Portuguese Cortes, in violation of the title by succession of his niece, Donna Maria, England declared herself neutral as between those claimants, in their domestic quarrel for the crown. Having declared her neutrality, England maintained it with fidelity and vigor. She would not allow any warlike equipments by either party in her ports; and when an armament had been fitted out in disguise, and sailed from Plymouth, in support of the claims of Donna Maria, England sent a naval force, and actually intercepted the Portuguese armament in its destination to the island Terceira. (a) The Twee Gebroeders, 3 Rob. Rep. 336.

(b) Grotius, b. 2, c. 2, sec. 13, n. 4. Vattel, b. 3, c. 7, sec. 119, 123, 127. Sir William Scott, 3 Rob. Rep. 353.

(c) Grotius, b. 3, c. 7, sec. 2, 3. Vattel, b. 3, c. 7, sec. 126. Manning's Commentaries, 182-186. Within a few years after the expulsion of the Tarquins, the Romans,

powers engaged that neither would obtain exclusive control over a ship-canal which might be made between the Atlantic and Pacific oceans, by way of the river San Juan de Nicaragua, and guaranteed the neutrality of the canal.