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 other. A nation, which would be admitted to the privileges of neutrality, must perform the duties it enjoins. Even a loan of money to one of the belligerant parties, is considered to be a violation of neutrality. A fraudulent neutrality 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, except so far as the auxiliary forces are concerned. The cantons of Switzerland have been accustomed to furnish such assistance to the other European powers. 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

a Mr. Manning, after referring to the practice of former times on the subject of foreign levies in neutral countries, and critically examining the reasoning of Vattel, justly concludes that foreign levies may not be allowed to one belligerant, while refused to his antagonist, consistently with the duties of neutrality, unless such an exclusive privilege was granted by treaty antecedent to the war. Manning's Commentaries, p. 180.

Mr. Pickering's Letter to Messrs. Pinckney, Marshall and Gerry, 2d of March, 1798. In Dewutz v. Hendricks, 9 Moore's C. B. Rep. 586, it was held to be contrary to the law of nations, for persons 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, and no right of action attached upon any such contract. Vattel, b. 3. c. 6. sec. 99, 100, 101. Ib. c. 7. sec. 104, 105. Martens' Summary, b. 8. c. 5. sec. 9. Mr. Jefferson's Letter to Mr. Pinckney, September 7th, 1793.

be an act consistent with a spirit of amity and commer-
cial 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 neu-
tral power be under contract to furnish succours to one
party, he is said not be bound if his ally was the
-aggressor; and in this solitary instance the* neu- *117
tral may examine into the merits of the war, so
-far as to see whether the casus fœderis exists. An inquiry
of this kind, instituted by the party to the contract,
for the purpose of determining on its binding obligation,
holds out strong temptations to abuse; and, in the lan-
guage of Mr. Jenkinson, "when the execution of gua-
ranties depends on questions like these, it will never be
difficult for an ally who hath a mind to break his engage-
ments, to find an evasion to escape."

ritory invio

A neutral has a right to pursue his ordinary commerce, Neutral terand he may become the carrier of the enemy's goods, lable. without being subject to any confiscation of the ship, or of the neutral articles on board; though not without the risk of having the voyage interrupted by the seizure of the hostile property. As the neutral has a right to carry the property of enemies in his own vessel, so, on the other hand, his own property is inviolable, though it be found in the vessels of enemies. But the general inviolability of the neutral character goes further than merely the protection of neutral property. It protects the property of the belligerants when within the neutral jurisdiction. It is

New Ann. Reg. for 1788, tit. Public Papers, p. 99.

·↳ Bynk. Q. J. Pub. b. 1. c. 9. Vattel, b. 2. c. 12. sec. 168.

• Discourse on the Conduct of the Government of Great Britain in respect to neutral nations, 1757.

not

not lawful to make neutral territory the scene of hostility,. or to attack an enemy while within it; and if the enemy be attacked, or any capture made, under neutral protection, the neutral is bound to redress the injury, and effect restitution. The books are full of cases recognising this principle of neutrality. In the year 1793, the British ship Grange was captured in Delaware Bay by a French frigate, and upon due complaint, the American government caused the British ship to be promptly restored.b *118 So in the case of the Anna, the *sanctity of neutral territory was fully asserted and vindicated, and restoration made of property captured by a British cruiser near the mouth of the Mississippi, and within the jurisdiction of the United States. It is a violation of neutral territory for a belligerant ship to take her station within it, in order to carry on hostile expeditions from thence, or to send her boats to capture vessels being beyond it. No use of neutral territory, for the purposes of war, can be permitted. This is the doctrine of the government of the United States. It was declared judicially in England, in the case of the Twee Gebroeders ;e and though it was not understood that the prohibition extended to remote objects and uses, such as procuring provisions and other innocent articles, which the law of nations tolerated, yet it was explicitly declared,that no proximate acts of war were

Grotius, b. 3. c. 4. sec. 8, note 2. Bynk. b. 1. c. 8. Vattel, b. 3. c. 7. sec. 132. Burlamaqui, vol. ii. part 4. c. 5. sec. 19.

Mr. Jefferson's Letter to Mr. Ternant, of 15th May, 1793.
5 Rob. Rep. 373.

a Mr. Randolph's Circular to the Governors of the several states, April 16th, 1795. The American commissioners to the court of France, (Benjamin Franklin, Silas Deane and Arthur Lee,) in their circular letter in 1777, to the commanders of American armed vessels, carried very far the extension of neutral protection, when they applied it indiscriminately to all captures "within sight of a neutral coast." Diplomatic Correspondence, by J. Sparks, vol. ii. 110. Vide supra, Lecture II.

• 3 Rob. Rep. 162.

Lec. VI.]

OF THE LAW OF NATIONS.

118

in any manner to be allowed to originate on neutral
ground; and for a ship to station herself within the neu-
tral line, and send out her boats on hostile enterprises, was
an act of hostility much too immediate to be permitted.
No act of hostility is to be commenced on neutral ground.
No measure is to be taken that will lead to immediate
violence. The neutral is to carry himself with perfect
equality between both belligerants, giving neither the one
nor the other any advantage; and if the respect due to
neutral territory be violated by one party, without
being promptly punished by *just animadversion, *119
it would soon provoke a similar treatment from the
other party, and the neutral ground would become the
theatre of war.a

If a belligerant cruiser inoffensively passes over a portion of water lying within neutral jurisdiction, that fact is not usually considered such a violation of the territory as to affect and invalidate an ulterior capture made beyond it. The passage of ships over territorial portions of the sea, is a thing less guarded than the passage of armies on land, because less inconvenient, and permission to pass over them is not usually required or asked. To vitiate a subsequent capture, the passage must at least have been expressly refused, or the permission to pass obtained under false pretences.b

The right of a refusal of a pass over neutral territory to the troops of a belligerant power, depends more upon the inconvenience falling on the neutral state, than on

• When Don Miguel, in 1828, ascended the throne of Portugal by a vote of the Portuguese Cortes, in violation of the title by succession of his niece, Donna Maria, England declared herself neutral as between those claimants in their domestic quarrel for the crown. Having declared her neutrality, England maintained it with fidelity and vigour. She would not allow any warlike equipments by either party in her ports; and when an armament had been fitted out in disguise, and sailed from Plymouth, in support of the claims of Donna Maria, England sent a naval force, and actually intercepted the Portuguese armament in its destination to the island Terceira.

The Twee Gebroeders, 3 Rob. Rep. 336.

any injustice committed to the third party, who is to be affected by the permission or refusal. It is no ground of complaint against the intermediate neutral state, if it grants a passage to belligerant troops, though inconvenience may thereby ensue to the adverse belligerant. It is a matter resting in the sound discretion of the neutral power, who may grant or withhold the permission, without any breach of neutrality. No belligerant power can claim the right of passage through a neutral territory, unless founded upon a previous treaty, and it cannot be granted by a neutral, where there is no antecedent treaty, unless an equality of privilege be allowed to both belligerants. This is the reasonable and just rule to be deduced from the opinions of jurists and the conventional law of modern nations.b

*120

*Bynkershoeck makes one exception to the general inviolability of neutral territory, and supposes that if an enemy be attacked on hostile ground, or in the open sea, and flee within the jurisdiction of a neutral state, the victor may pursue him dum fervet opus, and seize his prize within the neutral state. He rests his opinion entirely on the authority and practice of the Dutch, and admits that he had never seen the distinction taken by the publicists, or in the practice of nations. It appears, however, that Casaregis, and several other foreign jurists mentioned by Azuni,d held a similar doctrine. But D'Abreu, Valin, Emerigon, Vattel, Azuni

a Grotius, b. 2. c. 2. sec. 13. n. 4. Vattel, b. 3. c. 7. sec. 119. 123. 127. Sir William Scott, 3 Rob. Rep. 353.

b Grotius, b. 3. c. 7. sec. 2, 3. Vattel, b. 3. c. 7. sec. 126. Manning's Commentaries, 182-186. Within a few years after the expulsion of the Tarquins, the Romans, under the auspices of the Consul Spurius Cassius, concluded a league with the thirty cities or states of Latium; and one article was, that neither party should give to each other's enemies a passage through their lands. Dionysius, b. 6. sec. 95. Niebuhr's History of Rome, vol. ii. 28.

Q. J. Pub. b. 1. c. 8.

4 Maritime Law, vol. ii. 223. edit. N. Y.