Page images
[merged small][merged small][ocr errors]

and that fact had been kno

agents, and that fact had been known to our government, or if, instead of sending agents, Louis Napoleon or Frederick William had personally appeared at the War Department to purchase arms, it would have been lawful for us to sell to either of them, in pursuance of a national policy adopted by us prior to the commencement of hostilities."1 This last statement does not accord with the best opinion and doubtless would not be maintained at the present time. The first and second claims might justify the sale, though it would be in better accord with a strict neutrality for a state to refrain from all sale of supplies of war during the period of war between two states, toward which states it professes to maintain a neutral attitude. This, of course, does not affect the rights of commerce in arms on the part of the citizens of a neutral state.

(c) The authorities are practically agreed that loans of money to a belligerent state may not be made or guaranteed by a neutral state. This does not, however, affect the commerce in money which may be carried on by the citizens of a neutral state.

(d) A neutral may not permit the enlistment of troops for belligerent service within its jurisdiction. This applies to such action as might assume the proportions of recruiting. The citizens or subjects of a neutral state may enter the service of one of the belligerents in a private manner.

§ 129. Positive Obligations of a Neutral State

Not only must a neutral state refrain from direct assistance of either belligerent, but it must also put

13 Whart., § 391.

forth positive efforts to prevent acts which would assist a belligerent. If a state has neutrality laws, it is under obligations to enforce these laws, and is also under obligation to see that the principles generally recognized by international law are observed. Most states make provision for the enforcement of neutrality. In the United States the President is authorized to employ the land and naval forces or militia to execute the law.1 Jefferson said that, “ If the United States have a right to refuse the permission to arm vessels and raise men within their ports and territories, they are bound by the laws of neutrality to exercise that right, and to prohibit such armaments and enlistments.”2 There can be no difference of opinion upon the proposition that a neutral state is bound to restrain within its jurisdiction all overt acts of a character hostile to either belligerent.

There are, however, many acts which in themselves have no necessarily warlike character. Whether such acts are in violation of neutrality must be determined by inference as to their purpose. By such acts, as Hall says, “the neutral sovereignty is only violated constructively.”3 These acts vary so much in character and are of so wide a range that the determination of their true nature often imposes severe burdens upon the neutral attempting to prevent them. The destina tion of a vessel that is in the course of construction may determine its character so far as the laws of neutrality are concerned. If it is for a friendly state which is at peace with all the world, no objection to 1 U. S. Rev. Sts., § 5288. 2 1 Amer. State Papers, 116. .

3.p. 627, § 221.

its construction and sale can be raised. If a subject of a neutral state builds a vessel for one of the belligerents, such an act has sometimes been regarded as a legitimate business transaction, at other times as an act in violation of neutrality. As a business transaction, the vessel after leaving neutral territory is liable to the risk of seizure as contraband. As an act in violation of neutrality, the neutral state is bound to prevent the departure of the vessel by a reasonable amount of care. The line of demarcation which determines what acts a neutral state is under obligation to prevent, and what acts it may allow its subjects to perform at their own risk, is not yet clearly drawn. It is certain that a state is bound to use “ due diligence” to prevent the violation of its neutrality. In the case of the Alabama, this phrase was given different meanings by the representatives of the United States and Great Britain. The arbitrators declared that “ due diligence” should be “in exact proportion to the risks to which either of the belligerents may be exposed from a failure to fulfil the obligations of neutrality on their part.” 2 This definition is not satisfactory, and the measure of care required still depends upon the circumstances of each individual case, and is therefore a matter of doubt.

1 See Appendix, p. 435. 23 Whart., $ 402 a, p. 632.




130. Ordinary COMMERCE.

(a) Destination.
(6) Ownership of goods.
(c) Nationality of vessel.

(d) Declaration of Paris.
133. UNNEUTRAL Service.
134. Visit AND SEARCH.

(a) Right.
(b) Object.
(c) Method.
(d) Ship’s papers.
(e) Grounds of seizure.

(f) Seizure.
135. Convoy.

(a) Historical.
(6) Conditions of existence.
(c) A war measure.
(d) Who can declare.
(e) Notification.
(f) Must be effective.

(9) Cessation.

$ 130. Ordinary Commerce As a general principle, subjects of a neutral state may carry on commerce in the time of war as in the time ci peace. At the same time, owing to the fact of war, a belligerent has the right to take measures to reduce his opponent to subjection. The general right of the neutral and the special right of the belligerent come into opposition. The problem becomes one of “taking into consideration the respective rights of the belligerents and of the neutrals; rights of the belligerents to place their opponent beyond the power of resistance, but respecting the liberty and independence of the neutral in doing this; rights of the neutrals to maintain with each of the belligerents free commercial relations, without injury to the opponent of either.”].

In regard to commerce in the time of war, the matters of destination, ownership of goods, and the nationality of the vessel have been the facts ordinarily determining the treatment by the belligerent. If there is nothing hostile in the destination of the commercial undertaking, in the nature of the goods, or in the means of transport, the commerce is free from interruption by the belligerent.

(a) The questions arising in regard to destination will naturally be treated under the subjects of blockade and continuous voyage.

(6) The ownership of goods has usually been a fact determining their liability to capture.

1 Bonfils, “Droit Int. Public,” 1494 ff.; Despagnet, “Droit Int. Public,” $ 682 ff.; Investigation Chalmette Supply Camp, House Doc. 568, 57th Cong. U. S., 1902.

« PreviousContinue »