The belligerent is allowed to latter directly. wrong, the belligerent right to interfere with it is theoretically a derogation from the strict rights of the neutral state, which refrains in so far as its subjects are affected by the belligerent from protecting them in the performance of innocent acts. The justification of this usage lies in its convenience. By existing custom the belligerent has the right of hindering neutral commerce when it is noxious to control the him, either because it supplies his enemy with articles of direct use in war, or because it diminishes the stress which he puts upon his enemy; or even because it is tainted by association with hostile property. In all these cases the neutral trader is left face to face with the belligerent nation. It alone determines whether he has infringed its privileges, and in its courts alone can he in the first instance find a remedy for wrongs done to him by its agents. The neutral state cannot interfere until the belligerent has overstepped the boundary of his rights. When he has done this by rendering unjust decisions, the question transfers itself to another head of international law. The belligerent has practically committed an act of war, and the neutral state can demand and exact such reparation as may be needful. The two branches of the Law of Neutrality. 1. That states in their relations to one an other. § 6. It appears, then, that international usage as between belligerents and neutrals consists of two branches, distinct in respect of the parties affected, of the moral relation of these parties to each other, and of the means by which a breach of the accepted rules can be punished. In one the parties are both sovereign states, belonging to a species of society, the members of which may in a certain sense be said to have duties to one another. The belligerent is held to be under an obligation to respect the sovereignty of the neutral; the latter is under an equal obligation not to aid, and within certain limits to prevent others from aiding, the enemy of the belligerent in matters directly bearing on the war. If a wrong is done the only remedy is international. in so affecting tion to one an other. In the other the parties are the belligerent state 2. That and the neutral individual. They are, and can be, states and bound by no obligations to each other. The only findivi duty of the individual is to his own sovereign; and so their reladistinctly is this the case, that acts done even with intent to injure a foreign state are only wrong far as they compromise the nation of which the individual is a member. At the same time the only duty of the belligerent state is to beings of like kind with itself; and it is merely bound to behave in a particular manner to the neutral individual because of the international agreement which sets limits to the severity which may be used in repressing his noxious acts. But within these limits the belligerent is irresponsible. He exacts in his own prize-courts the penalty for infraction of the rules which he is allowed to enforce; and if he inflicts a wrong, it is for him to repair it. branches are occa confused other. 7. This distinction between the usages affect- The two ing national and private acts is deeply rooted in the habits of nations. At no time since the rules which sionally make up international law began to assume definite with each form has there been any question as to the existence or nature of an authoritative practice in the matter. But the usage was shaped in the first instance by the blind working of natural forces, and its permanence is more due to their continued operation, than to the clearness with which its principle has been defined by publicists. It has been, and still is, usual for writers to confuse neutral states and individuals in a common relation towards belligerent states; and in losing sight of the sound basis of the established 1777. French of the Law 1793. American of the Law. practice they have necessarily failed to indicate any clear boundary of state responsibility. This want of precision is both theoretically unfortunate, and not altogether without practical importance. For it has enabled governments from time to time to put forward pretensions, which though they have never been admitted by neutral nations, and have never been carried into effect, cannot be often made without endangering the stability of the principles they attack. But the common sense of statesmen has always met such pretensions with a decided assertion of the authoritative doctrine, and state papers are not wanting in that clearness which is deficient in the writings of publicists. 6 In 1777, M. de Vergennes, in his observations on sta tement the celebrated English Mémoire Justificatif' of that year, said that 'it will be found, whether by consulting usage or treaties, not that trade in articles contraband of war is a breach of neutrality, but that the persons engaged in it are exposed to the confiscation of their goods." When England suggested to statement the United States in 1793 that the Government of that country 'will deem it more expedient to prevent the execution of the President's Proclamation than to expose vessels belonging to its citizens to those damages which may arise from their carrying articles of the description above-mentioned;' Mr. Jefferson answered, 'Our citizens have always been free to make, vend, and export arms. It is the constant occupation and livelihood of some of them. To suppress their callings, the only means perhaps of their subsistence, because a war exists in foreign and dis-. tant countries, in which we have no concern, would scarcely be expected. It would be hard in principle 1 De Martens, Causes Célèbres du Droit des Gens, iii. 247. and impossible in practice. The law of nations, therefore, respecting the rights of those at peace does not require from them such an internal derangement of their occupations.'1 Again, in 1855, President 1855, do. Pierce, speaking of articles contraband of war, laid down more plainly that the laws of the United States do not forbid their citizens to sell to either of the belligerent powers articles contraband of war, or take munitions of war or soldiers on board their private ships for transportation; and although in so doing the individual citizen exposes his property or person to some of the hazards of war, his acts do not involve any breach of national neutrality, nor of themselves implicate the Government.' 2 In unfortunate contrast with these frank expressions of the clear rule of law was the doctrine maintained by the United States during the civil war and afterwards before the tribunal of arbitration at Geneva. It was then urged that though belligerents may not 'infringe upon the rights which neutrals have to manufacture and deal in military supplies in the ordinary course of commerce,' yet that 'a neutral ought not to permit a belligerent to use the neutral soil as the main if not the only base of its military supplies;' in other words, it was argued that the character of contraband trade alters with the scale upon which it is carried on. In like manner, during the Franco-German war of 1870, Count Bismarck accused the British Government of not acting 'in conformity with the position of strict neutrality taken 1 Mr. Jefferson to Mr. Hammond, May 15, 1793. 2 President Pierce's Message, 1st Session 34th Congress. Among publicists Kent (Commentaries, Lect. vii.) and Ortolan (Diplomatie de la Mer, ii. 177) are distinguished by their clear recognition of the principle in- 3 Case of the United States, The two branches of law confused; recently by the United Germany. States and In 1801, by by it,' in permitting contracts to be entered into by the French Government with English houses for the supply of arms and ammunition.1 These claims are reflected in the language of M. Bluntschli, who declares that while 'the neutral state cannot be asked to prevent the issue in small quantities of arms and munitions of war, it is altogether different with wholesale export. The latter gives a sensible advantage to one of the two parties, and in the larger number of cases is in fact a subsidy.'2 Sometimes an inverse confusion occurs to that England. which is made in the above instance. In 1801 an English frigate seized some Swedish vessels at Oster Risper, within Norwegian waters. Lord Hawkesbury expressed the regret of the English Government that the Danish sovereignty had been violated, but failed to see that the international illegality of the capture required the application of an international remedy; and professing that the Government had no power to restore the ships, referred the aggrieved parties to the courts. In 1793, by 3 Again, in 1793, on the outbreak of war between Great Britain and France, the latter power endeavoured to use the territory of the United States as a base of operations against English commerce, and fitted out privateers in American ports. While measures were being taken to put a stop to these proceedings, the American Ministry had before it the 1 Lord Augustus Loftus to 2 Droit International, § 766. open violation of his territory should be submitted under any pretext whatever to the decision of the courts.' In the end Lord Hawkesbury receded from his pretension, and the ships were given up. Ortolan, Dip. de la Mer. Annexe F. ii. 427-33, where the text of the correspondence is to be found. |