CHAPTER VIII.

ON 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. In the United States they ought beyond all doubt to be objects of particular study, because whilst it is the true policy of that country to cherish a spirit of peace, so it has ever been the avowed aim of its government to keep itself free from those political connexions which would tend to draw it into the vortex of European contests. [Nor should they be less regarded with attention and respect in Europe, where, if on the one hand, owing to the complications arising out of family compacts, political confederations or alliances for mutual aid and defence, many of the powers find no little difficulty in keeping out of hostilities when war breaks out; on the other, in case they do succeed in standing aloof therefrom and maintaining a neutral attitude, they experience a fact which war soon makes patent, that their neutrality is by the belligerents considered as a stumblingblock in their paths, and that these watch with the most jealous suspicion the conduct of all who profess neutrality, contest with energy the rights they claim, and insist upon the strictest attention

1 On the general principles connected with neutrality and neutrals see Heffter, Liv. II. ch. iii. §§ 144-154, where most of the leading continental authorities are cited. Ortolan, Règles Įnternationales et Diss. de la Mer, Liv. III. ch. iv. Wheaton, Vol. 1. Part IV. ch. iii. §§ 1-5. Halleck On International Law, ch. xxvi. §§ 1-4. Phillimore, Vol. III. Twiss, On the Law of Nations, Vol. II. ch. xi.

2 Heffter, Liv. II. ch. iii. § 145.

of neu

to the obligations by which as neutrals they are bound'. Rights A correct appreciation therefore of the rights and duties and duties attaching to a state of neutrality is a matter of primary trals. importance, in the upholding of which both neutrals and belligerents are equally concerned.] For whilst every 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; so belligerents 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 shall be permitted to carry on their accustomed trade, under the few necessary restrictions which we shall hereafter considerR.

[There is one restriction upon the inviolability of neutral property when found in an enemy's country that must be noticed here, because there is no better place for its insertion. It is a peculiar claim set up by belligerents to seize the vessels of neutrals in the ports or waters of one of the hostile parties, and to employ them for warlike operations on condition of paying an indemnity for their use or for injury to them. It is known by the name of Droit d'angarie, Jus angariæ, and by some writers is classed with the right of embargo, of which something has already been said. This claim, which Azuni looks upon as a prerogative founded upon the supreme power enjoyed by nations in their own territory, is allowed only in cases

1 In support of this statement English writers and Englishmen generally may appeal to the attitude of the government of the United States during the late civil war in that country, the constant reclamations and sometimes the harsh charges of want of faith and breach of neutrality then made, and the extravagant demands at one point of the Alabama negotiations pressed against us, shew how hard is the position of a neutral, and how difficult it is to avoid causes of offence to one or other of the belligerents.

2 Vattel, Bk. III. ch. vii. § 104. Wheaton's Elements, Vol. 11. Pt. Iv. ch. iii. § 1. De Cussy, Droit Maritime, Liv. 1. tit. iii. § 9, and Opinions of Attorneys-General (American), Vol. 11. p. 87.

of strong necessity. It is, as Massé with great force urges, and duties less the exercise of a right than the abuse of that power

Rights

of neu

trals.

which a sovereign disposes of in places within his dominion—but it has been recognized both by Treaty and by special agreement as a necessary part of war. A very remarkable instance of the claim to and concession of it was exhibited in the Franco-German War of 1870. Some English vessels were seized by the German General in command at Rouen and sunk in the Seine at Duchair, in order to prevent French gunboats from running up the river and interfering with the operations of German troops on its banks. In answer to the reclamations of the English government the measure was justified by Count Bismarck on the ground of necessity, however exceptional it was in its nature. "It did not" he said "overstep the bounds of international warlike usage, and was, so far as a neutral state was concerned, entirely a matter for indemnification for the damage done." To this proposition the British Government assented, and after some correspondence between the two countries a sum of money something like £7,000 was offered and agreed to be accepted as compensation. This indemnity, be it noticed, covered'

1. The value of the ships with 25 per cent. addition for the effect of a seizure that was in the nature of a forced sale so far as the owners of the vessels were concerned.

2. The highest market value of the cargoes at the place of shipment at the time of seizure, minus port dues and charges for unloading, which at the time of seizure had not been paid.

3. Small sums for expenses incurred by the seamen on account of protests and counter certificates.

4. 5 per cent. interest on the above items from the 1st May to the end of April.

In addition to the claims under the above four heads two others were also sent in to the British authorities.

One was that of the master and seamen for loss of employment and effects: but that part of it which relates to loss of employment was rejected by the British government, and not sent in. For loss of effects a small allowance only was recognized as claimable, viz. for such

1 See Annual Register for 1871, "Public Documents, &c.," pp. 255-259.

and duties

damage as might fairly have been sustained in consequence Rights of rapid and hasty removal, and of the natural difficulty of neuexperienced in the conveyance of the goods from Rouen trals. to London. The other, which was admitted on both sides as fair, was for charges incurred by the government of her Majesty the Queen of England in transmitting the seamen to their homes'.]

must be

It belongs not to a common friend to judge between Neutrals the belligerent parties, or to determine the question of impartial. right betwen them. The neutral is not to favour one of them to the detriment of the other; and it is an essential character of neutrality, to furnish no aids to one party, which the neutral is not equally ready to furnish to the other3. A nation which would be admitted to the privileges of neutrality, must perform the duties it enjoins. A loan of money to one of the belligerent parties is considered to be a violation of neutrality*, [if contracted by the act, consent, advice of, or even collusion on the part of the neutral state. But so far as this country, at all events, is concerned, as the judgment in ex parte Chavasse re Grazebrook shews', the acts of individuals independent of, and unknown to, their government, cannot in the matters of loans any more than sales of munition of war, be considered violations of neutrality.] A fraudulent neutrality

1 On the subject of Angaria, see Azuni, Droit Maritime de l'Europe, Tom. 1. ch. iii. art. 5, §§ 1, 2, and Droits des Nations Neutres, T. III. tit. XIV. pp. 416-431. Heffter, Das. Eur. Volk. § 150. Massé, Droit Commercial, T. 1. Liv. ii. tit. 1. ch. ii. sec 2, § VI. U. S. Statutes at Large, Vol. VIII. pp. 92, 170, 384, 470. State Papers, 1871, lxxxi. c. 251.

2 Bynk. Q. J. P. Lib. 1. ch. ix. Burlamaqui, Vol. 11. Pt. IV. c. v. §§ 16, 17.

3 Manning's Law of Nations, p. 180.

4 Mr Pickering's Despatch to Messrs Pinckney, Marshall, and Gerry, Envoys and Ministers Plenipotentiary to the French Republic, March 2nd, 1798. American State Papers, Vol. IV. p. 142. [This document however shews that what was prohibited was an advance of money by loan or otherwise from the representatives of a neutral state to one of the belligerent parties. In no event, says Mr Pickering, "is a treaty to be purchased with money by loan or otherwise."]

5 34 Law Journal, Bankruptcy Cases, p. 17.

66

[ The following cases have been cited by Mr Chancellor Kent and other writers, in support of the doctrine of the learned Chancellor's, as to the illegality of a loan of money; but as to the first (De Wutz v. Hendricks) it is sufficient to say that the statement in it to the effect that it is contrary to the law of nations, for per

Rights andduties of neu

trals.

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'. 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. 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. But if a neutral power be under contract to furnish succours 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 as to see whether the casus fœderis exists3. An inquiry of this kind, instituted by the party to the contract, for the purpose of determining on its binding obligation, sons 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, was but an obiter dictum of the learned Judge who delivered the judgment of the Court of Common Pleas, and that the case itself did not turn upon that point at all. As to the others, on reference to them, it will be found that whilst they have little or no bearing upon the subject referred to in the text, they certainly do not support the learned author's statement in its broad and unlimited sense-these cases are: De Wutz v. Hendricks, 9 Moore's C. B. Reports, 586. Yrisarri v. Clement, 11 Moore, C. B. Reports, 308. Thompson v. Powles, 2 Simon, 194. Jones v. Garcia Del Rio, I. Turner and Russell, 297.]

1 Vattel, Bk. 1. ch. vi. § 101; ch. vii. §§ 104, 105. Mr Jefferson's Letter to Mr Pinckney, Sept. 7, 1793, Jefferson's Works, Vol. IV. p. 61; and see also Wheaton's Elements, Vol. 11. Pt. iv. ch. iii. § 5, and Twiss, On the Law of Nations, Vol. 11. ch. xi. § 212.

2 New A. Reg. for 1788, tit. Public Papers, p. 99.

3 This subject has already been discussed in a preceding chapter (III). Bynk. Q. J. P. Lib. 1. ch. ix. Vattel, Bk. 11. ch. xii. § 168. Twiss's Law of Nations, Vol. II. ch. xii. § 129.