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CHAPTER XI."

NEUTRALITY:

388. Definition.- Neutrality on the part of a State not a party to the war, consists in refraining from all participation in the war, and in exercising absolute impartiality in preventing, tolerating, and regulating certain acts on its own part, by its subjects and by the belligerents. It is the duty of belligerents to respect the territory and rights of the neutral States,

1 The written law on the subject of neutrality in regard to land warfare is found in conventions III and V of The Hague of 1907.

The purpose and effect of the rules laid down at The Hague in convention V were (1) to define more clearly the rights and duties of neutral powers in war on land and defining their positions with regard to the belligerents; and (2) defining the term neutral and the position of neutral individuals in their relations with the belligerents.

389. Notification of state of war and effect upon neutrals.-H. Con. III, Art. II. The existence of a state of war must be notified to the neutral powers without delay, and shall not take effect with regard to them' until after the receipt of a notification, which may, however, be given by telegraph. "Neutral powers, nevertheless, can not rely on the absence of notification if it is clearly established that they were in fact aware of the existence of a state of war. i Vide par. 21, supra.

NEUTRAL RIGHTS AND DUTIES. 390. Inviolability of territory.-H. C.V, Art. I. The territory of neutral powers is inviolable."

1 It is a principle of the law of nations that no belligerent can rightfully make use of the territory of a neutral State for belligerent purposes without the consent of the neutral Government. 7 Opp. Att. Gen., 367, Cushing.

391. Movements of troops and convoys of supplies.-H. C. V, Art. II. Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral power.

392. Neutral can résist, violations of neutrality by force.-H. C. V, Art. X. The fact of a neutral power resisting, even by force, attempts to violate its neutrality can not be regarded as a hostile actor."

393. Patrolling the frontier.—It is quite usual, frequently neeessary, and therefore the duty of a neutral power whose terri

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tory is adjacent to a theater of war, to mobilize a portion of its forces to enforce its neutrality along the frontier. That is to prevent troops of either belligerent to enter its territory, to intern such as may be permitted to enter, and generally to enforce its neutrality duties.

1 In 1806 the Danes formed a cordon of troops along the frontier near Lubeck, with arms in their hands to make their neutrality respected. They fired on French troops who were pursuing the Prussians. Letters and documents, Murat, Vol. IV, Despatch 2639. In 1870-71 both Belgium and Switzerland mobilized troops on their frontiers to prevent violations of their neutrality by the belligerents. Germany complained that no measures were taken by the Grand Duchy of Luxemburg to prevent French troops from crossing their territory and violating their territory. There have been frequent mobilizations of United States troops on the Mexican frontier for the enforcement of our neutrality laws during rebellions in Mexico. For the past three years the entire frontier has been patrolled along the Mexican border and we now have the

border at or near Ojinaga. 394. Effect of failure in preventing belligerent troops violating neutrality.-Should the neutral State be unable, or fail for any reasons, to prevent violations of its neutrality by the troops of one belligerent entering or passing through its territory, the other belligerent may be justified in attacking the enemy forces on this territory.1

1 In August, 1870, Von Moltke issued orders to the Third, and Meuse armies, directing that: “Should the enemy pass over into Belgium without being at once disarmed, he is to be pursued thither without delay.". Ger. Off. Hist., pt. 1, Vol. II, Appendix 42.

In the South African War' a Boer commando retreated into Swazi. land (understood and agreed to be neutral), where it was followed and attacked by a British column in March, 1901. Times Hist., Vol. V, p. 177.

In the Russo-Japanese War, Manchuria and Chosen, both neutral States, became the theater of military operations between the two belligerents. The avowed object of the war was the expulsion of the Russians from these two States, neither of which were able to prevent violations of their neutrality. Japan deliberately violated the neutrality of Chosen in order to forestall similar action by Russia. Prof. Ariga said that in man cases "a violation of neutrality may, in land war, have so very great an influence on the general issue of the operations that the other belligerent will usually not have to resort to the always uncertain methods of diplomacy; he must therefore retort in kind and at once to the act of violation, whatever be the intention of the neutral nation." P. 506.

For protest of Mr. Evarts, Secretary of State, against the troops of Gen. Diaz crossing the border into Texas and attacking his enemies, vide Digest of International Law, Moore, sec. 1334.

395. Convoys of munitions and supplies.-A distinction must be drawn between the official acts of the belligerent State in Convoying or shipping munitions and supplies through neutral territory as part of an expedition and the shipment of such supplies commercially. The former is forbidden while the latter is not.

1 Vide IT. C. V. Art. VII, par. 403 infra.

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RECRUITING.

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396. Forming corps of combatants and recruiting forbidden.H. C. V., Art. IV. Corps of combatants can not be formed nor recruiting agencies opened on the territory of a neutral power to assist the belligerents.

397. What is prohibited.—The establishment of recruiting agencies, the actual recruiting of men, the formation and organization of hostile expeditions on neutral territory, and the passage across its frontiers of organized bodies of men intending to enlist, are prohibited."

1 Rev. Stat. U. S., secs. 5281-5291. Sec. 5282. “Every person who, within the territory or jurisdiction of the United States, enlists or enters himself, or hires or retains another person to enlist or enter himself, or to go beyond the limits or jurisdiction of the United States with intent to be enlisted or entered in the service of any foreign prince, State, colony, district, or people, as a soldier,

shall be deemed guilty of a high misdemeanor, and shall be fined not less than one thousand dollars, and imprisoned not more than three years."

Sec. 5291. “The provisions of this title shall not be construed to extend to any subject or citizen of any foreign prince, State, colony, district, or people, who is transiently in the United States."

398. Personnel of Voluntary Aid Society.This prohibition does not extend to the medical personnel and units of a recognized voluntary aid society duly authorized to join one of the belligerents."

1 Vide Geneva Conference, 1906, Art. II.

399. Does not extend to individuals.-H. C. V, Art. VI. The responsibility of a neutral power is not engaged by the fact of individuals crossing the frontier separately to offer their services to one of the belligerents.

400. What the test. The prohibition in the two foregoing rules is directed against organized bodies which only require to be armed to become an immediate fighting force. Individuals crossing the frontier singly or in small bands that are unorganized create no obligation on the neutral State."

1 The Santissima Trinidad, I Brock, 478. “An American citizen may enter either the land or naval service of a foreign Government without compromising the neutrality of his own.'

United States v. Louis Kazinski, 2 Sprague, 7. “ It is not a crime, under the neutrality law, to leave this country with intent to enlist in foreign military service; nor to transport persons out of the country with their own consent who have an intention of so enlisting. To constitute a crime under the statute, such person must be hired or retained to go abroad with the intent to be so enlisted."

Vide, 4, Op. Att. Gen., 336 (Nelson) and 7 Op. Att. Gen., 367 (Cushing). 8 id. 468 and id. 476." It goes without saying that the neutral State must prevent its frontiers being crossed by corps or bands which have been organized on its territory without its knowl. edge. On the other hand, individuals may be considered as acting in an isola manner when there exists between them no bond of a known or obvious organization, even when a number of them pass the frontier simultaneously." Hague Con. Actes, p. 127.

et seg.

401. Nationals of belligerent not included.-Nationals of a belligerent State are permitted freely to leave neutral territory to join the armies of their country"

1 In 1870 the United States permitted large numbers of French and Germans to leave this country under recalls from their Governments. In one case about 1,200 Frenchmen embarked in French ships with 96,000 rifles and 11,000,000 cartridges. The United States held that the men were not officered or in any manner organized, and as the arms and ammunition were legitimate subjects of commerce, the issuing of the ships from an American port did not constitute an expedition. Vide Hall Int. Law, p. 609, and Spaight, War Rights on Land, pp. 492

See also sec. 5291, U. S. Rev, Stát., supra, note 1, par. 397. 402. Officers on active list.-Officers of the land forces of neutral powers on the active list should not be permitted to join a belligerent, and having joined such belligerent forces should be recalled.

1 Sec. 5281, U. S. Rev. Stat. : “ Every citizen of the United States who, within the territory or jurisdiction thereof, accepts and exercises a commission to serve a foreign prince, State, colony, district, or people, in war, by land or by sea, against any prince, State, colony, district, or people, with whom the United States are at peace, shall be deemed guilty of a high misdemeanor, and shall be fined not more than two thousand dollars and imprisoned not more than three years." Murray v. Schooner Charming Betsy, 2 Cranch, 64, 82.

The consensus of opinion is that it is an unneutral act for a State to permit its officers on the active list to take service in a foreign belligerent army. The practice of States has not always been uniform. In 1899, Germany recalled and punished some of her officers on the active list for taking service in the South African War. In 1876, Russia permitted many of her officers to serve in the Servian Army against Turkey, but in 1887 withdrew her officers from the Bulgarian Army on the outbreak of war with Servia,

Mr. Spaight says that, “Retired officers, having ceased to possess an official character, as it were, are recognized as having a freedom of action which the usages affecting neutrality do not allow to serving officers. War Rights on Land, p. 495.

As to medical personnel, see par. 398.

SUPPLIES.

403. Neutral not bound to prevent shipment of supplies.H. C. V, Art. VII. A neutral power is not called upon to prevent the export or transport, on behalf of one or other of the belligerents, of arms, munitions of war, or, in general, of anything which can be of use to an army or a fleet.

404. Obligations of neutral state as to supplies.-A neutral state, as such, is prohibited from furnishing supplies, munitions of war, or to make loans to a belligerent. It is also forbidden to permit the use of its territory for the fitting out of hostile expeditions. It should issue a proclamation of neutrality.

1 As to loans by individuals see H. C. V., Art. XVIII, infra, par. 430.

2 U. S. Rev. Stat., Sec. 5286.-" Every person who, within the territory or jurisdiction of the United States, begins, or sets on foot, or provides or prepares the means for, any military expedition or enterprise,

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etc., by the

the U. S. Govt. Dig. Int. Law,

to be carried on from thence against the territory or dominions of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace, shall be deemed guilty of a high misdemeanor, and shall be fined not exceeding three thousand dollars, and imprisoned not more than three years."

Kennett v. Chambers, 14 How., 38. United States v. Ybanez, 53 Fed. Rep., 536. Wiborg v. United States, 163 U. S., 632, 655. U. S. v. Murphy, 84 Fed. Rep., 609. United States v. Hart, 78 Fed. Rep., 868.“ Sec. 5286, Rev. Stat., creates two offenses, (1) the setting on foot, within the United States, a military expedition, to be carried on against any power, etc., with whom the United States are at peace; (2) providing the means for such expedition.”

Vide as to sales of arms, Moore, sec. 1309.

12T 3 See par. 389 supra. For neutrality proclamations of President Grant, Aug. 22, 1870, see For. Rel., 1870, p. 45; also Dig. Int. Law, Moore, sec. 1319. After setting forth categorically acts prohibited by the laws of neutrality, warns the population that “while all persons may lawfully and without restriction, by reason of the aforesaid state of war, manufacture and sell within the United States arms and munitions

of war, and other articles ordinarily known as contraband of war, yet they can not carry such articles upon the high seas for the use or service of either belligerent, nor can they transport soldiers and officers of either,

* without incurring the risk of hostile capture, and the penalties denounced by the law of nations in that behalf." See also the proclamation of President Roosevelt on February 11, 1904, upon the opening of hostilities between Japan and Russia. For, Rel., 1904, pp. 32 et seq.

405. Commercial transactions not prohibited. Commercial transactions by neutral companies, citizens, or persons resident in its territory with belligerents are not prohibited. That is, a belligerent can purchase from neutral companies, citizens, or persons within its territory supplies, munitions of war, or anything that can be of use to an army or fleet, which can be exported or transported without involving the neutral state.

1 United States v. The Laurada, 85 Fed. Rep., 760.--"The neutrality laws are not designed to interfere with commerce, even in contraband of war, but merely to prevent distinctly hostile acts, as against a friendly power, which tend to involve this country in war.' Pearson v. Parson, 108 Fed. Rep., 461.

The Peterhoff, 5 Wall., 28.—" The trade of neutrals with belligerents in articles not contraband is absolutely free, unless interrupted by blockade.”

Northern Pac. Ry. Co. v. American Trading Co., 195 U. S., 439, 465.— Contracts for the transportation of contraband articles are enforceable."

Hendricks v. Gonzales, 67 Fed. Rep., 351 ; 14 C. C. A., 659,-"A collector of customs is not justified in refusing clearance to a vessel and her cargo, under sec. 5290, Rev. Stat., because she is intended to transport arms and munitions of war for the use of an insurrectionary party in a country with which the United States is at peace.".

406. Means of communication.-H. C. V, Art. VIII. A neutral power is not called upon to forbid or restrict the use on behalf of the belligerents of telegraph or telephone cables or of wireless telegraph apparatus belonging to it or to companies or private individuals.

407. Must not manifestly assist one belligerent.—The liberty of a neutral State to transmit dispatches by means of its tele

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