refraining from assisting the besieged." In Barbeyrac's note to Pufendorf, 1706, the discussion shows that the idea of neutrality is clearer, but still confused by the attempt to admit a variety of qualified forms by which a state may be neutral in some respects and not in others.2 Bynkershoek in 1737 said, "I call those non hostes who are of neither party.' "13 This statement of Bynkershoek furnishes a convenient starting-point for his successors. Vattel, in 1758, accepting this definition, also says that a state may give such aid as has been promised in a treaty of alliance previously made with one of the states, and still preserve exact neutrality toward the other state.4 (b) By Article XVII of the Treaty of Amity and Commerce between the United States and France, in 1778, “It shall be lawful for the ships of war of either party, The United States and the and privateers, freely to carry whithersoever they please the ships and goods taken from their enemies; principles of neutrality. on the contrary, no shelter or refuge shall be given in their ports to such as shall have made prize of the subjects, people or property of either of the parties," except when driven in by stress of weather. By Article XXII of the same treaty, foreign privateers were not allowed to be fitted out or to sell their prizes in the ports of either party. In 1793 M. Genêt, the French minister, began to fit out privateers, to give commissions to citizens of the United States to cruise in the service of France against the British, and to set up prize courts in the French consulates. He justified himself under the provisions of the Treaty of 1778. His action threatened to bring the United States into war with Great Britain and led to the enunciation of the principles by the United States authorities, of which Canning in 1823 said, "If I wished for a guide in a system 1 "De Jure Belli ac Pacis," Lib. III, C. XVII, iii, 1. "Le Droit de la Nature et des Gens," Liv. VIII, C. VI, vii, n. 2. "Quaestiones Juris Publici," I, ix. "Droit des Gens," III, viii. of neutrality, I should take that laid down by America in the days of the presidency of Washington and the secretaryship of Jefferson." 1 The President's Proclamation of December 3, 1793, declares that, in the war of France and the European powers, "the duty and interest of the United States require that they should with sincerity and good faith adopt and pursue a conduct friendly and impartial toward the belligerent powers. "2 While the Proclamation does not mention "neutrality," the orders and instructions issued in accordance with it use the word. By the Act of Congress of June 5, 1794, and by subsequent acts codified in 1818,3 the United States assumed a position which marks an epoch in the history of neutrality. The principles then enunciated are the generally accepted rules of the present day. Great Britain passed similar enactments in 1819, and made these more definite and stringent by the Foreign Enlistment Act of 1870.4 125. Declaration of Neutrality In recent years it has become customary to issue proclamations of neutrality, or to make known the attitude of the state by some public announcement. This method publishes to other states and to the subjects of the state issuing the announcement the position which the state will take during the hostilities. Ordinarily some specifications as to what may be done during the war accompany the proclamation. In the war between the United States and Spain in 1898 and in subsequent wars, practically all the leading states of the world made known their neutrality. Germany, according to the custom in that state for twenty years preceding, made no public proclamation, but the neutrality of the Empire was announced less formally by the Emperor in a speech before 15 Speeches, 50. 21 Messages and Papers of the Presidents, 156. U. S. Rev. Sts., §§ 5281-5291, see Appendix, p. 465. For cases, see 1 Gould and Tucker, 990, and 2 ibid., 627. 33 and 34 Vict., c. 90, p. 560. See also 2 Lorimer, 490. the Reichstag. The British proclamation of April 23, 1898, is, however, a very full statement of the principles which are to be observed during the hostilities.1 A clause from the Russian Declaration of April 18, 1898, is an example of the announcement of the general fact of neutrality: "It is with keen regret that the Imperial Government witnesses an armed conflict between two states to which it is united by old friendship and deep sympathy. It is firmly resolved to observe with regard to these two belligerents a perfect and impartial neutrality." 2 126. Relations between Neutrals and Belligerents The relations between neutrals and belligerents naturally fall into two divisions: (a) The relations between neutral states and belligerent states as states. These relations are determined by the respect for sovereignty, by international usage, and by treaties. (b) Relations between the states and individuals. These relations involve: (1) Ordinary commerce. (2) Contraband. (3) Unneutral service. (4) Visit and search. (5) Convoy. (6) Blockade. (7) Continuous voyage. (8) Prize and prize courts. 1 Proc. and Decrees during the war with Spain, p. 31. Ibid., p. 63. President Cleveland's neutrality proclamations as to the war in Cuba are given in 29 U. S. Sts. at Large, 870, 881. OUTLINE OF CHAPTER XXIII RELATIONS OF NEUTRAL STATES AND BELLIGERENT STATES 127. GENERAL PRINCIPLES OF THE RELATIONS BETWEEN STATES. 128. NEUTRAL TERRITORIAL JURISDICTION. (a) Inviolability of neutral territory. (b) Passage of belligerents through neutral territory restricted. (c) Maritime jurisdiction of a neutral. (d) Neutral territory as a base of military operations forbidden. 129. REGULATION OF NEUTRAL RELATIONS. (a) Obligation of neutral state to offer asylum to belligerent troops seeking refuge. (b) Right of asylum of a belligerent vessel in a neutral port. (c) Internment of a vessel in a neutral port to escape capture. (d) Ordinary entry depends upon the will of the neutral. (e) Time of sojourn of vessels usually limited to twenty-four hours. (1) Regulation by proclamation. (2) Regulations in regard to vessels with prizes. 130. NO DIRECT ASSISTANCE BY THE NEUTRAL ALLOWED. (a) Military assistance on any grounds not now justified. (b) Furnishing of supplies of war not allowable. (c) Loans of money forbidden. (d) Enlistment of troops within the jurisdiction of a neutral state not permitted. 131. POSITIVE OBLIGATIONS OF A NEUTRAL STATE. (a) Obligation to restrain hostile acts. (b) Acts in themselves not necessarily warlike must be judged by inference as to their purpose. CHAPTER XXIII RELATIONS OF NEUTRAL STATES AND BELLIGERENT STATES 127. General Principles of the Relations between States Of the general principle Wheaton says, "The right of every independent state to remain at peace whilst other states are engaged in war is an incontestable attribute of sovereignty." 1 Equally incontestable is the right of a belligerent state to demand that a state not a party to the war shall refrain from all participation in the contest, whether it be direct or indirect. The modern tendency is to remove from the neutral all possible inconveniences which might result from war between states with which the neutral is at peace. The normal relations between neutral and neutral are unimpaired. As the neutral is at peace with the belligerents, the relations between the neutral and the belligerents are affected only so far as the necessities of belligerent operations demand. "Every restriction, however, upon the rights of a neutral or belligerent must have a clear and undoubted rule and reason. The burden of proof lies upon the restraining government." 2 128. Neutral Territorial Jurisdiction (a) One of the earliest principles to receive the sanction of theory and practice was that of the inviolability of territorial Inviolability of neutral territory. jurisdiction of neutrals. This principle has been liberally interpreted in recent times, and the tendency has been to make increasingly severe the penalties for its violation. 1 Wheat. D., p. 509. 2 "International Law," Naval War College, 2d ed., p. 118. |