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. They ought to be objects of particular study in this country, inasmuch as it is our true policy to cherish a spirit of peace, and to keep ourselves free from those political connections which would tend to draw us into the vortex of European contests. A 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. Belligerent nations 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 they shall be permitted to carry on their accustomed trade, under the few necessary restrictions which we shall hereafter consider.

It belongs not to a common friend to judge between the belligerent parties, or to determine the question of right between them.¹ The neutral is not to favor one of theta 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 belligerent parties, is considered to be a violation of neutrality.² A fraudulent neutrality is no neutrality, Hut the neutral duty does not extend so far as to prohibit the fulfillment of antecedent engagements, which may be kept consistently with an exact neutrality, unless they go so far as to require the neutral nation to became au associate in the war.³ 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.⁴ But if a neutral power be under contract to furnish succors 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 foederis exists.⁵ 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 language of Mr. Jenkinson,⁶ “when the execution of guaranties depends on questions like these, it will never be difficult for any ally who has a mind to break his engagements, to find an evasion to escape.”

A neutral has a right to pursue his ordinary commerce, and he may become the carrier of the enemy’s goods, without being subject to any confiscation of the ship, or of the neutral articles on board; though riot 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 belligerents when within the neutral jurisdiction. It is 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.⁷ The books are full of cases recognizing this principle of neutrality. la 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.⁸ So, in the case of the Anna,⁹ 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 belligerent 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.¹⁰ It was declared judicially in England in the case of the Twee Gebroeders;¹¹ 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 in any manner to be allowed to originate on neutral ground; and for a ship to station herself within the neutral line. and send out tier 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 belligerents, 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, it would soon provoke a similar treatment from the other party, and the neutral ground would become the theatre of war.

If a belligerent 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 subsequent capture, the passage must at least have been expressly refused, or the permission to pass obtained under false pretenses.¹²

The right of refusal of a pass over neutral territory to the troops of a belligerent power, depends more upon the inconvenience falling on the neutral state, than on 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 belligerent troops, though inconvenience may thereby ensue to the adverse belligerent. 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.¹³

Bynkershoek¹⁴ 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 Azuni¹⁵ held a similar doctrine. But d’Abreu, Valin, Emerigon, Vattel, Azuni, and others, maintain the sounder doctrine, that when the flying enemy has entered neutral territory, he is placed immediately under the protection of the neutral power. The same broad principal that would tolerate a forcible entrance upon neutral ground or waters, in pursuit of the foe, would lead the pursuer into the heart of a commercial port. There is no exception to the rule, that every voluntary entrance into neutral territory, with hostile purposes, is absolutely unlawful.¹⁶ The neutral border must not be used as a shelter for making preparations to renew the attack; and though the neutral is not obliged to refuse a passage and safety to the pursued party, he ought to cause him to depart as soon as possible, and not to lie by and watch his opportunity for further contest. This would be making the neutral country directly auxiliary to the war, and to the comfort and support of one party. In the case of the Anna¹⁷ Sir William Scott was inclined to agree with Bynkershoek to this extent: that if a vessel refused to submit to visitation and search, and fled within neutral territory, to places which were uninhabited, like the little stud islands before the mouth of the Mississippi, and the cruiser, without injury or annoyance to any person, should quietly take possession of his prey, he would not stretch the point so far, on that account only, as to hold the capture illegal. But, in this, as well as in every other case of the like kind, there is, in stricto jure, a violation of neutral jurisdiction, and the neutral power would have a right to insist on a restoration of the property. It was observed by the same high authority, in another case, depending on a claim of territory,¹⁸ “that when the fact is established, it overrules every other consideration. The capture is done away; the property must be restored, notwithstanding that it may actually belong to the enemy.”

A neutral has no right to inquire into the validity of a capture, except in cases in which the rights of neutral jurisdiction were violated; and, in such cases, the neutral power will restore the property, if found in the hands of the offender, and within its jurisdiction, regardless of any sentence of condemnation by a court of the belligerent captor.¹⁹ It belongs solely to the neutral government to raise the objection to a capture and title, founded on the violation of neutral rights. The adverse belligerent has no right to complain, when the prize is duly libeled before a competent court.²⁰ If any complaint is to be made on the part of the captured, it must be by his government to the neutral government, for a fraudulent, or unworthy, or unnecessary submission to a violation of its territory, and such submission will naturally provoke retaliation. In the case of prizes brought within a neutral port, the neutral sovereign exercises jurisdiction so far as to restore the property of its own subjects, illegally captured; and this is done says Valin,²¹ by way of compensation for the asylum granted to the captor and his prize. It has been held, in this country, that foreign ships, offending against our laws, within our jurisdiction, may be pursued and seized upon the ocean, and rightfully brought into our ports for adjudication.²²

The government of the United States was warranted by the law and practice of nations, in the declarations made in 1493 of the rules of neutrality, which are particularly recognized as necessary to be observed by the belligerent powers, in their intercourse with this country.²³ These rules were, that the original arming or equipping of vessels in our ports, by any of the powers at war, for military service, was unlawful; and no such vessel was entitled to an. asylum in our ports. The equipment by them of government vessels of war, in matters which, if done to other vessels, would be applicable equally to commerce or war, was lawful. The equipment by them of vessels fitted for merchandise and war, and applicable to either, was lawful; but if it were of a nature solely applicable to war, it was unlawful. And if the armed vessel of one nation should depart from our jurisdiction, no armed vessel, being within the same, and belonging to an adverse belligerent power should depart until twenty-four hours after the former, without being deemed to have violated the law of nations.²⁴ Congress have repeatedly, by statute, made suitable provision for the support and due observance of similar rules of neutrality, and given sanction to the principle of them, as being founded in the universal law of nations. It is declared to be a misdemeanor for any person, within the jurisdiction of the United States, to increase or augment the force of any armed vessel, belonging to one foreign power at war with another power, with whom we are at peace; or to set on foot or prepare any military expedition, against the territory of any foreign nation with whom we art at peace; or to hire or enlist troops or seamen, for foreign military or naval service; or to be concerned in fitting out any vessel, to cruise, or commit hostilities in foreign service, against a nation at peace with us; and the vessel, in this latter case, is made subject to forfeiture. The President of the United States is also authorized to employ force to compel any foreign vessel to depart, which, by the law ref nations, or by treaty, ought not to remain within the United States, and to employ the public force generally, in enforcing the observance of the duties of neutrality prescribed by law.²⁵ In the case of the Santissima Trinidad,²⁶ it was decided, that captures made by a vessel so illegally fitted out, whether a public or private armed ship, were torts, and that the original owner was entitled to restitution, if the property was brought within our jurisdiction; but that an illegal outfit did not affect a capture made after the cruise to which the outfit had been applied had terminated. The offense was deposited with the voyage, and the delictum ended with the termination of the cruise.

Though a belligerent vessel may not enter within neutral jurisdiction, for hostile purposes, she may, consistently, with a state of neutrality, until prohibited by the neutral power, bring her prize into a neutral port, and sell it.²⁷ The neutral power is, however, at liberty to refuse this privilege, provided the refusal be made, as the privilege ought to be granted to both parties, or to neither. The United States, while a neutral power, frequently asserted the right to prohibit, at discretion, the sale within their ports, of prizes brought in by the belligerents, and the sale of French prizes was allowed as an indulgence merely, until it interfered with the treaty with England of 1794, in respect to prizes made by privateers.²⁸ In the opinion of some jurists, it is more consistent with a state of neutrality, and the dictates of true policy, to refuse this favor; for it must be very inconvenient to permit the privateers of contending nations to assemble, to ether with their prizes, in a neutral port. The edict of the States General of 1656, forbade foreign, cruisers to sell their prizes in their neutral ports, or to cause them to be unladen; find the French ordinance of the marine of 1681 contained the same prohibition, and that such vessel should not continue in port longer than twenty-four hours, unless detained by stress of weather.²⁹ The admission into neutral ports of the public ships of the belligerent parties, without prizes, is considered to be a favor, required on the principle of hospitality among friendly powers, and it has been uniformly conceded on the part of the United States.³⁰

But neutral ships do, not afford protection to enemy’s property, and it may be seized if found on board of a neutral vessel, beyond the limits of the neutral jurisdiction. This is a clear and well-settled principle of the law of nations.³¹ It was formerly a question, whether the neutral ship conveying enemy’s property, was not liable to confiscation for that cause. This was the old law of France, in cases in which thee master of the vessel knowingly took on board enemy’s property; but Bynkershoek truly observes, that the master’s knowledge is immaterial in this case, and that the rule in the Roman law, making the vessel liable for the fraudulent act of the master, was a mere fiscal regulation, and did not apply; and for the neutral to carry enemy’s goods is not unlawful, like smuggling, and does not affect the neutral ship. If there be nothing unfair in the conduct of the neutral master, he will even be entitled to his reasonable demurrage, and his freight for the carriage of the goods, though he has not carried them to the place of destination. They are said to be seized and condemned, not ex delicto, but only ex re. The capture of them it by the enemy, is a delivery to the person, who, by the rights of war, was substituted for the owner.³² Bynkershoek³³ thinks the master is not entitled to freight, because the goods were not carried to the port of destination, though he admits that the Dutch lawyers, and the consolato, give freight. But the allowance of freight in that case has been the uniform practice of the English admiralty for near two centuries past, except when there was some circumstance of mala fides, or a departure from a strictly proper neutral conduct.³⁴ The freight is paid, not pro rata, but in toto, because capture is considered as delivery, and the captor pays the whole freight, because he represents his enemy, by possessing himself of the enemy’s goods jure belli, and he interrupts the actual delivery to the consignee.³⁵

The right to take enemy’s property on board a neutral ship, has been much contested by particular nations, whose interests it strongly opposed. This was the case with the Dutch in the war of 1756, and Mr. Jenkinson (afterwards Earl of Liverpool) published, in 1757, a discourse very full and satisfactory, on the ground of authority and usage, in favor of the legality of the right, when no treaty intervened to control it. The rule has been steadily maintained by Great Britain. In France it has been fluctuating. The ordinance of the marine of 1681 asserted the ancient and severe rule, that the neutral ship, having on board enemy’s property, was subject to confiscation. The same rule was enforced by the arrets of 1692 and 1704, and relaxed by those of 1744 and 1778.³⁶ In 1780, the Empress of Russia proclaimed the principles of the Baltic code of neutrality, and declared she would maintain them by force of arms. One Oft he articles of that code was, that “all effects belonging to the subjects of the belligerent powers, should be looked upon as free on board of neutral ships, except only such goods as were contraband.” The principle powers of Europe, as Sweden, Denmark, Prussia, Germany, Holland, France, Spain, Portugal, and Naples, and also these United States, acceded to the Russian principles of neutrality.³⁷ But the want of the consent of a power of such decided maritime superiority as that of Great Britain, was an insuperable obstacle to the success of the Baltic conventional law of neutrality; and it was soon abandoned, as not being sanctioned by the existing law of nations, in every case in which the doctrines of that code did not rest upon positive compact. During the whole course of the wars growing out of the French Revolution, the government of the United States admitted the English rule to be valid, as the true and settled doctrine of international law; and that enemy’s property was liable to seizure on board of neutral ships, and to be confiscated as prize of war.³⁸ It has, however, been very usual in commercial treaties, to stipulate, that free ships should make free goods, contraband of war always excepted; but such stipulations are to be considered as resting on conventional law merely, aud as exceptions to the operation of the general rule, which every nation not a party to the stipulation is at perfect liberty to exact or surrender. The Ottoman Porte was the first power to abandon the ancient rule, and she stipulated, in her treaty with France in 1604, that free ships should make free goods, and she afterwards consented to the same provision in her treaty with Holland in 1612; and, according to Azuni,³⁹ Turkey has, at all times, on international questions, given an example of moderation to the more civilized powers of Europe.

The effort made by the Baltic powers, in 1801, to recall and enforce the doctrines of the armed neutrality in 1780, was met, and promptly overpowered, and the confederacy dissolved, by the naval power of England. Russia gave up the point, and, by her convention with England of the 17th of June, 1801, expressly agreed, that enemy’s property was not to be protected on board of neutral ships. The rule has since been very generally acquiesced in; and it was expressly recognized in the Austrian ordinance of neutrality, published at Vienna the 7th of August, 1803. Its reason and authority have been ably vindicated by English statesmen and jurists, and particularly by Mr. Ward, in his treatise of the relative lights and duties of belligerent and neutral powers in maritime, affairs, published in 1801, and which exhausted all the law and learning applicable to the question.

It is also a principle of the law of nations relative to neutral rights, that the effect of neutrals, found on board of enemy’s vessels, shall be free; and it is a right as fully and firmly settled as the other, though, like that, it is often changed by positive agreement.⁴⁰ The principle is to be met with in the Consolato del Mare, and the property of the neutral is to be restored without any compensation for detention, and the other necessary inconveniences incident to the capture. The former ordinances of France of 1543, 1584, and 16231, declared such goods to be lawful prize; and Valin⁴¹ justifies the ordinances, on the ground that the neutral by putting his property on board of an enemy’s vessel, favors the enemy’s commerce, and agrees to abide the fate of the vessel But it is fully and satisfactorily shown, by the whole current of modern authority, that the neutral has a perfect right to avail himself of the vessel of his friend to transport his property; and Bynkershoek has devoted an entire chapter to the vindication of the justice and equity of the right.⁴²

The two distinct propositions, that enemy’s goods found on board a neutral ship may lawfully be seized as prize of war, and that the goods of a neutral found on board of an enemy’s vessel, were to be restored, have been explicitly incorporated into the jurisprudence of the United States, and declared by the Supreme Court⁴³ to be founded in the law of nations. The rule, as it was observed by the Court, rested on the simple and intelligible principle, that war gave a full right to capture the goods of an enemy, but. gave no right to capture the goods of a friend. The neutral flag constituted no protection to enemy’s property, and the belligerent flag communicated no hostile character to neutral property. The character of the property depended upon the fact of ownership, and riot upon the character of the vehicle in which it is found. After vindicating the simplicity and justice of the original rule of the law of nations, against the speculations of modern theorists, and the ultima ratio of the armed neutrality, which attempted to effect by force a revolution in the law of nations; the Court stated, that nations have changed this simple and natural principle of public law, by conventions between themselves, in the whole or in part, as they believed it to be for their interest, but that the one proposition, that free ships should make free goods, did not necessarily imply the converse proposition, that enemy’s ships should make enemy’s goods. If a treaty established the one proposition, and was silent as to the other, the other stood precisely as if there had been no stipulation, and upon the ancient rule. The stipulation that neutral bottoms should make neutral goods, was a concession made by the belligerent to the neutral, and it gave to the neutral flag a capacity riot given to it by the law of nations. On the other hand, the stipulation subjecting neutral property found in the, vessel of an enemy to condemnation ion as prize of war, was a concession made by the neutral to the belligerent, and took from the neutral a privilege he possessed under the law of nations; but neither reason nor practice rendered the two concessions so indissoluble, that the one could not exist without the other. It rested entirely in the discretion of the contracting parties, whether either or both should be granted. The two propositions are distinct and independent of each other, and they have frequently been kept distinct by treaties, which stipulated for the one, and not for the other.

The government of the United States, in their recent negotiations with the republics in South America, have pressed very earnestly for the introduction and establishment of the principle of the Baltic code of 1780, that the friendly flag should cover the cargo; and this principle is incorporated into the treaty between the United States and Colombia, in 1625. The introduction of these new republics into the great community of civilized nations, has justly been deemed a very favorable opportunity to inculcate and establish, under their sanction, more enlarged and liberal doctrines on the subject of national rights. It has been the desire of our government to obtain the recognition of the fundamental principles, consecrated by the treaty with Prussia in 1785, relative to the perfect equality and reciprocity of commercial rights between nations: the abolition of private war upon the ocean and the enlargement of the privileges of neutral commerce. The rule of public law, that the property of an enemy is liable to capture in the vessel of a friend, is now declared, on the part of our government, to have no foundation in natural right; and that the usage rests entirely on force. Though the high seas are a general jurisdiction, common to all, yet each nation has a special jurisdiction over its own vessels; and all the maritime nations of modern Europe have, at times, acceded to the principle, that the property of an enemy should be protected in the vessel of a friend. No neutral nation, it is said, is bound to submit to the usage; and the neutral may have yielded, at one time, to the usage, without sacrificing the right to vindicate, by force, the security of the neutral flag at another. The neutral right to cover enemy’s property is conceded to be subject to this qualification, that a belligerent nation may justly refuse to neutrals the benefit of this principle, unless it be conceded also by the enemy of the belligerent to the same neutral flag.⁴⁴

But, whatever may be the utility or reasonableness of the neutral claim, under such a qualification, I should apprehend the belligerent right to be no longer an open question; and that the authority and usage on which that right rests in Europe, and the long, explicit, and authoritative admission of it by this country, have concluded us from making it a subject of controversy; and that we are bound, in truth and justice, to submit to its regular exercise, An every case, and with every belligerent power who does not freely renounce it.

It has been a matter of discussion, whether the captor of the enemy’s vessel be entitled to freight from the owner of the neutral, goods found on board, and restored. Under certain circumstances, the captor hits been. considered to be entitled to freight, even though the goods were carried to the claimant’s own country, and restored; and he clearly is entitled to freight, if he performs the voyage, and carries the goods to the port of original destination. In no other case is freight due to the captor, and the doctrine of pro rata freight is entirely rejected, because it would involve a prize court in a labyrinth of minute inquiries and considerations, in the endeavor to ascertain, in every case, the balance of advantage or disadvantage, which an interruption and loss of the original voyage, by capture, might have produced to the owner of the goods.⁴⁵

In the case of the Nereide, the Supreme Court of the United States carried the principle of immunity of neutral property on board an enemy’s vessel, to the extent of allowing it to be laden on board an armed belligerent cruiser; and it was held, that the goods did not lose their neutral characters not even in consequence of resistance made by the armed vessel, provided the neutral did not aid in such armament or resistance, notwithstanding he had chartered the whole vessel, and was on board at the time of the resistance. The act of arming was the act of the belligerent party, and the neutral goods did not contribute to the armament, further than the freight, which would be paid if the vessel was unarmed, and neither the goods nor the neutral owner were chargeable for the hostile acts of the belligerent vessel, if the neutral took no part in the resistance. A contemporary decision of an opposite character, on the same point, was made by the English High Court of Admiralty in the Case of the Fanny;⁴⁶ and it was there observed, that a neutral subject was at liberty to put his goods on board the merchant vessel of a belligerent; but if he placed them on board ate armed belligerent shin, he showed an intention to resist visitation and search, by means of the association, and, so far as he does this, he was presumed to adhere to the enemy, and to withdraw himself from his protection of neutrality. If a neutral chooses to take the protection of a hostile force, instead of his own neutral character, he must take (it was observed) the inconvenience with the convenience, and his property would, upon just and sound principles, he liable to condemnation along with the belligerent vessel.

The question decided in the case of the Nereide is a very important one in prize law, and of infinite importance in its practical results; and it is to be regretted, that the decisions of two courts of the highest character, do such a points should have been in direct contradiction to each other. The same point afterwards arose, and was again argued, and the former decision repeated, in the case of the Atalanta.⁴⁷ It was observed in this latter case, that the rule with us was correct in principle, and the most liberal and honorable to the jurisprudence of this country. The question may, therefore, be considered here as at rest, and as having received the most authoritative decision that can he rendered by any judicial tribunal on this side of the Atlantic.