1

1

Errata.

Page 109, note 4, for Central America, 1826, read Central America, 1825.

138, the treaty between England and the United Provinces, 1654, mentioned in notes 3 and 4, should appear in the latter only.

142, note, for Denmark, 1818 (De Martens, Nouv. Rec. iv. 532) read Sweden, 1827 (De Martens, Nouv. Rec. vii. 279).

THE

RIGHTS AND DUTIES OF NEUTRALS.

PART I.

CHAPTER I.

INTRODUCTION.

§ 1. THE relations of belligerents and neutrals Introto each other supply materials for the least certain ductory. and the most complex head of International Law. This relative complexity and uncertainty is partly inherent, and partly perhaps temporary; but it chiefly arises from permanent causes prior to law, which are unlikely ever to lose their influence on the minds of those who mould it by their practice. There must always be some nations which will tend over considerable periods to occupy the position of belligerents; and there must always be others which, from policy or necessity, will be likely to maintain neutrality. Some nations will always have a power on land wholly disproportioned to that which they can exercise at sea; and finally, there will always be countries which will care more to keep open channels for receiving supplies in time of war than to preserve the right, which they may be unable to use, of denying them to their enemy. In alliance with these discordant interests, two schools of speculative opinion,

B

and two independent currents of usage, have hitherto existed; and as the larger number of questions arising out of the neutral attitude happen to be necessarily connected with maritime war or commerce, the two theories of right have practically embodied the respective wishes of nations which were strong or weak at sea. The states which have successively possessed or hoped for maritime supremacy have in turn extended the privileges of belligerents; and neutral countries have joined with the unsuccessful competitors in endeavouring to limit them. In the actually existing rules which govern the relations of belligerents and neutrals, it is vain to look for anything more than the somewhat incoherent result of a struggle between competing interests for power or for existence.

At the end of the Napoleonic wars the theory which reflected the interests of belligerent maritime nations was predominant. During their continuance, England strengthened the heritage which general usage, created more by belligerent than by neutral states, had bequeathed to her. But since then the opposite theory has received a continually increasing amount of support; of late years the number of continental writers on international law has much exceeded that of English and American authors; and the theory which is identified with the commercial interests of neutrals has been brought into greater prominence. In some respects this is not a subject for regret. It is probably best for the general good of mankind that neutrals should be possessed of ample privileges; and if foreign publicists had been content to advocate modifications of law in the direction favoured by them, the points upon which an Englishman must at present disagree with their doctrine would be largely reduced. But they appear not in

frequently to be so much more occupied with what ought to be than with what is, that their treatises might more fitly be called proposals for a future code than analyses of existing law. They not infrequently state as an accepted rule what ought only to be put as a growing usage, or as one which it would be for the interest of all or of some nations to adopt. This quasi-speculative method does not appear to me to be suited to the treatment of international law. Whatever international right may be, international rule can be carried no further than the point at which the more influential nations are willing that it shall be fixed from time to time; and however ready they may be to make use of a new doctrine which helps them to gain an end, they will be sure to appeal to precedent when it serves their purpose better to do so. Any confusion between well-established law and that which is still open for the acceptance or rejection of nations is therefore not only incorrect but perilous. Its most likely result must be to make disputes and even collisions more frequent and more bitter. And that such confusion exists, is, I think, open to no doubt.

It may also be said of foreign publicists, without any impeachment on their fairness, that most of them naturally take views suited to the position occupied by their own countries. They are neither able fully to enter into the belligerent needs of a state, the weight of which depends upon the stress which it can put upon its enemies by sea; nor do they adequately feel the difficulties to which a country at once largely producing and maritime would be exposed if some of the more extreme theories of neutral duty were established as law.

The design of the present work is to ascertain, apart from all prepossessions in favour of English or

Necessity of inquiring into the

source of

interna

of continental views, what the relative authority of conflicting usages in fact is, and to separate distinctly those which have become obligatory from those which are still in course of growth.

§ 2. Some discussion as to the source from which authoritative international law is derived, and of the nature of the evidences by which its existence may tional law. be proved, is the necessary preliminary of an endeavour to analyse the actual body of existing rules. It is often in practice uncertain whether a principle, professing to be part of the law, is in fact authoritative. To determine whether it is so or not, the source from which it springs must be referred to; and no universal agreement exists as to what the sources of international rules of conduct in fact are. This almost necessarily arises from the shifting and uncertain nature of the external conditions under which international law exists. States are independent beings, subject to no control, and owning no superior; each one is only subjected to law by its own consent. The rules which govern their conduct do not therefore form a body of true law; they are not declared or enforced by a superior power. But when no definite authority exists which determines the law, there is obviously room for the adoption of rules on various grounds, and for attaching a varying value to these grounds. If the rules were themselves certain, this would be unimportant; but where, as in international law, different theories of the source of law give rise to conflicting results, a choice between the rival doctrines must be made, and must be justified by a statement of the relative value which in the mind of the writer is conceded to the several sources of authority.

Its origin.

It is perhaps unfortunate that international law has been allowed to assume the name which it has