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NEUTRALS.

"NEUTRAL nations (says Vattel, B. iii. c. 7) are those which, in time of war, do not take any part in the contest, but remain common friends to both parties, without favouring the arms of the one to the prejudice of the other. As long as a neutral nation wishes securely to enjoy the advantages of a neutrality, she must in all things show a strict impartiality towards the belligerent powers. Should she favour one of the parties to the prejudice of the other, she cannot complain of being treated by him as an adherent and confederate of his enemy. Her neutrality would be a fraudulent neutrality, of which no nation will consent to be the dupe. The impartiality which a neutral nation ought to observe relates solely to war, and includes two articles, first, to give no assistance when there is no obligation to give it, nor voluntarily to furnish troops, arms, ammunition, or anything of direct use in war-I do not say 'to give assistance equally,' but 'to give no assistance;' for it would be absurd that a state should at one and the same time assist two nations at war with each other; and besides it would be impossible to do it with equality. The same things, the like number of troops, the like quantity of arms, of stores, &c., furnished in different circumstances, are no longer equivalent succours. In whatever does not relate to war, a neutral and impartial nation must not refuse to one of the parties, on account of his present quarrel, what she grants to the other."

There may, indeed, be exceptions to this rule, arising out of previous treaties, as where Denmark, under a

previous treaty of defensive alliance, furnished limited succours in ships and troops to the Empress Catharine of Russia, in the war of 1788, against Sweden; or where, under the treaty of amity and commerce of 1778, between the United States and France, the latter reserved to herself special privileges in the American ports; admission for her privateers with their prizes to the exclusion of her enemies, and the admission for her public ships of war, in case of urgent necessity, to refresh, victual, repair, &c., but not exclusively with other nations at war with her. The fulfilment of such an obligation does not necessarily forfeit for the neutral power his neutral character, nor render him the enemy of the other belligerent nation, because it does not render him the general associate of his enemy. This kind of neutrality is described by Martens on Captures, &c., p. 217, as a species of conventional neutrality. "Consequently," continues Martens, "a power which sends assistance in troops or money to one of the belligerent powers, or even in strictness which permits its subjects to take out letters of marque from the enemy, in order to fit out a privateer, can no longer demand to be treated as a neutral power, although, in certain cases, as when sovereigns let out their troops to the enemy by virtue of treaties of subsidy, it has become customary to treat it as such, and to attribute to it an imperfect or limited neutrality.

"As every state, then, has a right, in time of peace, to grant or refuse permission to any power to raise troops in its dominions, or to cause a detachment of troops to enter or pass through them, and even to grant one power what it refuses another, it may in like manner grant or refuse these privileges to belligerent

powers, and even continue in time of war to observe the same inequality as it observed in time of peace, without deviating by that act from the sentiments of impartiality, of which a neutral power ought to make a law.

"In practice it is generally acknowledged, that it is as little allowable in time of war as in time of peace to enter with an armed force into a neutral territory, without having asked and obtained permission so to do; but it is allowed that an entry, made against the will of such a power, may be justified by necessity. Every inequality, which a power observes in this respect during the war, is considered as being in fact contrary to neutrality, so that we think ourselves in the right to take by force what, by refusing to us, it grants the enemy; and even, when displeased with the real or apparent equality which a neutral power offers to establish, we are permitted sometimes to prevent, indeed, what it is of more importance to the enemy than to us to obtain, or to appropriate to ourselves that of which the refusal is more disadvantageous to us than to the enemy, under the pretext of either the want of real impartiality or of the law of necessity.

"In like manner, the law of nature prohibits the commencing or prosecuting of hostilities on the territories, or on parts of the sea, subject to a neutral power, which could not be done without violating the privilege of life and death of the sovereign ruling there. Thus this point is acknowledged by custom, and powers have often even engaged by treaty, not to commit and not to suffer hostilities on neutral territory; and although there are only a few instances of this kind of violations, no custom can originate from them,

inasmuch as complaints have not ceased to be made, and necessity alone can serve as a pretext to justify them. It is not, therefore, allowable to take away from a friendly territory the hostile property found there; and, by a consequence of the same principle, the booty which the enemy introduces there does not cease to belong to him, and does not fall again into the hands of the ancient proprietor. He may even sell it, unless this last point has been settled otherwise by treaties.”

In like manner the property of a neutral power which we find in the enemy's hands, whether movable or immovable, ought to be exempted from hostilities, the belligerent power having no claim on them. This point, therefore, is observed with as much strictness as the confusions of war will permit. It is uncertain whether the universal law of nations allows, the case of extreme necessity excepted, of the seizure (embargo) of neutral ships, which are found in our ports at the time when the war first breaks out, with the intention of making use of them for the wants of the fleet, if we pay them for their services. Custom has introduced the exereise of this privilege, but several treaties have abolished it. The leading principles of the law of nations, as affecting the goods of a neutral, are thus succinctly laid down in the report made to the king, in 1753, by Sir George Lee, Judge of the Prerogative Court, Dr. Paul, Advocate General, Sir Dudley Ryder, Attorney General, and Mr. Murray (afterwards Lord Mansfield), Solicitor General:

1. The goods of an enemy on board the ship of a friend may be taken.

2. The lawful goods of a friend on board the ship of an enemy ought to be restored.

3. Contraband goods going to the enemy, though the property of a friend, may be taken as prize, because the supplying the enemy with means which enable him better to carry on the war,

is a departure from neutrality.

"One of the most important points," writes Martens (ubi sup.), "with respect to the conduct which neutral powers have to observe, is, the commerce to be carried on with the enemy. But if we consider the affair on the part of the neutral power, the right which it had in time of peace of selling and conveying every species of merchandize to every nation that would trade with it, remains also to it at the time war arises between two powers, so that it may permit its own subjects to convey every species of merchandize, and even arms and ammunition, to both the belligerent powers, or to either of them, with which such commerce can be still carried on or be established most advantageously: so long as the state does not embroil itself, either by prohibiting commerce to be carried on with one or with both the belligerent parties, it seems that it does not transgress by such conduct the duties of neutrality. Nevertheless, as the belligerent power has a right to prevent its enemy from being reinforced by what is of use in war, the case of necessity in which it finds itself may justify it in preventing the enemy from receiving these commodities; it ought at all times to confine itself to the detention of them during the continuance of the war, or to appropriate them to its own use on paying the value of them to the neutral proprietor. But the right of confiscating these commodities, or even the ships which are carrying them, cannot it seems belong to an enemy till a

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