Whether the sale of warlike use by a neutral state is. permissible. on international law a healthier rule is unquestioned. Money is in theory and in fact an article of commerce in the fullest sense of the word; and a belligerent no more dreams of complaining because the markets of a neutral nation are open to his enemy for the purchase of money, than because they are open for the purchase of cotton. Mr. Webster laid down the true law on the subject in 1842 with great decision. As to advances and loans . . . made by individuals to the Government of Texas or its citizens, the Mexican Government hardly needs to be informed that there is nothing unlawful in this, so long as Texas is at peace with the United States, and that these are things which no government undertakes to restrain.'1 § 17. The general principle that a mercantile act articles of is not a violation of state neutrality, is pressed too far when it is made to cover the sale of munitions or vessels of war by a state. Trade is not one of the common functions of a government; and an extraordinary motive must be supposed to stimulate an extraordinary act. The nation is exceptionally unfortunate which is forced to get rid of surplus stores precisely at the moment when their purchase is useful to a belligerent. In the year 1825, the Swedish Klüber, and Pando make no 1 Mr. Webster to Mr. Thomp- Phillimore relies as expounding the view of the English court, merely expresses his opinion that it is contrary to the law of nations for persons residing in this country to enter into engagements by way of loan for the purpose of supporting subjects of a foreign state in arms against a government in alliance with our own.' ix Moore, 586. During the Franco-German war both the French Morgan Loan and part of the North German Confederation Loan were issued in England. Government, wishing to reduce its navy, offered six frigates for sale to the Government of Spain. The latter refused to buy, and three of them were then sold to an English mercantile firm, who, as it afterwards appeared, were probably acting on behalf of Mexico, then in revolt against the mother country. In any case it became known before the vessels were handed over that a further sale had been, or was about to be effected to the recognised Mexican agent in England; and the Swedish Government, listening to the warmly expressed complaints of Spain, rescinded the contract at some monetary loss to itself, notwithstanding that the ships had been sold in ignorance of their ultimate destination.1 During the war between France and Prussia, the Government of the United States seems to have taken an opposite view of its duty;2 but there can be no question that Sweden, in yielding, chose the better part. The vendor of munitions of war in large quantities during the existence of hostilities knows perfectly well that the purchaser must intend them for the use of one of the belligerents, and a neutral government is too strictly bound to hold aloof from the quarrel to glean safety from the quibble that the precise destination of the articles bought has not been disclosed. neutral a § 18. During the eighteenth century it was an Whether a undisputed doctrine that a neutral state might grant state may a passage through its territory to a belligerent army, belligerent and that the concession formed no ground of com- force to plaint on the part of the other belligerent. The through its 1 De Martens, Causes Cél. v. 229. 2 A series of public sales of surplus guns, rifles, and other arms took place at New York. Large quantities were bought by French agents, were taken on board French ships direct from pass territories. 4 earlier writers of this century, and Sir R. Phillimore more lately, preserve this view, only so far modifying it as to insist with greater strength that the privilege, if accorded, shall be offered impartially to both belligerents. But the most recent authors assert a contrary opinion; 2 no direct attempt has been made since 1815, to take advantage of the asserted right; and the permission granted to the allies in that year to cross Switzerland in order to invade France, was extorted from the Federal Council under circumstances which would in any case rob the precedent of authority. The same country in 1870 denied a passage to bodies of Alsatians, enlisted for the French army, but travelling without arms or uniforms; and there can be no question that existing opinion would imperatively forbid any renewed laxity of conduct in this respect on the part of neutral countries. While the larger number of states were small, and their fragmentary possessions were strewed at random over the map, the right of passage was practically a necessity of war; but under the actual condition of Europe, where alone the question is of importance, the points of contact between the great powers can hardly be said to be inadequate; and it may be doubted whether a single case exists in which passage through a neutral state would not involve of necessity a strategical connection with the base of operations of the army. Whether this be so or not, the grant of permission is an act done by the state with the express object 1 De Martens, Précis, § 310; Kent, Lect. vi.; Klüber, Le Droit des Gens moderne de l'Europe, § 284; Manning, p. 186; Wheaton, Elem. Pt. iv. c. iii. § 8; Philli more, iii. § 152. Pando, cxci. follows Vattel in saying that in cases of extreme necessity the belligerent may effect his passage even against the will of the neutral. 2 Heffter, § 147; Bluntschli, § 770; Calvo, § 1074 3 Wheaton, Elem. Pt. iv. chap. iii. § 4. 4 Bluntschli, § 770. of furthering a warlike end, and is in its nature an interference in the war. It is therefore a nonneutral act; and the only excuse which can be accepted for its performance would be the impossible one, that it is equally advantageous to, and desired by, both belligerents at once. use of With the passage of troops in an organised con- Analogous dition across neutral territory, and as illustrating the neutral territory. ́advantages which a belligerent might reap from such passage, may be mentioned an ingenious attempt which was made by Germany in 1870 to use Belgian territory, under a plea of humanity, to facilitate the operations of war. After the battle of Sedan, the victorious army was embarrassed by masses of wounded, whom it was difficult to move into Germany by the routes which were open, and whose support in France, in part diverted the commissariat from its normal function of feeding the active army. The German Government therefore applied to Belgium for leave to transport the wounded across that country by railway. In consequence of the strong protest of France, Belgium after consultation with the English Government, rejected the application. It is indeed difficult to see,(apart from the grant of direct aid or of permission to move a corps d'armée from the Rhine Provinces into France) in what way Belgium could have more distinctly abandoned her neutrality than by relieving the railway from Nancy to the frontier from encumbrances, by enabling the Germans to devote their transport solely to warlike uses, and by freeing the commissariat from the burden of several thousand men lodged in a place of difficult access. committed § 19. It has been already seen that the commission Hostilities of hostilities within neutral territory was the earliest within subject of legal restraint. Their prohibition was so necessary a consequence of the doctrine of sovereignty, neutral territory. and is so undisputed a maxim of law, that it would be superfluous to recur to the subject were it not that aberrations in practice have been more common than in any other matter in which the rule is so clear. In 1793 the French frigate, Modeste, was captured in the harbour of Genoa by two English men of war; and it was neither restored nor was any apology made for the violation of Genoese neutrality.1 But in the same year the American Government acted upon this law by causing the restoration of the ship Grange, seized in Delaware Bay; and the English Courts gave effect to it by voiding a capture which took place within the mouths of the Mississippi.2 The principle upon which the closely allied act of issuing from neutral ground for an immediately hostile end is interdicted was laid down by Lord Stowell in a case in which an English frigate lying 1 Botta, Storia d'Italia, i. 161. See also the case already mentioned of the Swedish vessels seized at Oster Risper (p. 24); that of the General Armstrong in 1814 (p. 82); and that of the Florida, captured in Bahia Bay by the Wachusett in 1864 (p. 76). The worst modern instance occurred at Smyrna in 1853. The Austrian consul at that place arrested an Hungarian of the name of Kosszta under the capitulations between the Porte and his government, and put him on board an Austrian vessel to send him home for trial. Under the pretence that he had been naturalised in the United States, Captain Ingraham, commanding an American frigate, claimed his liberation. The frigate with shotted guns ranged alongside the Austrian vessel, and formal notice was sent that it would attack if the latter moved. The brig, being unable to resist, no actual violence was in fact done; but Kosszta was none the less liberated by force. The hostility, to apply language of Lord Stowell used of sufficiently analogous matter, was not complete indeed, but inchoate, and clothed with all the characters of hostility.' An act of war was therefore committed against Austria in flagrant violation of the sovereignty of Turkey, for which so little regard was shown that Captain Ingraham did not go through the form of applying to the governor of Smyrna before taking his own measures. He received the thanks of Congress for his conduct. De Martens, Causes Cél. v. 583. 2 Mr. Jefferson's letter to M. Ternant, Am. State Papers, i. 77. The Anna. v Robinson's Admiralty Reports, 373. |