of neutrals that there was little thought of the injured belligerent holding the neutral to account for them.1

The middle of the eighteenth century marks a decided growth in the recognition of the rights of neutral states, but it was not until the close of the century that the standard of neutral duty rose appreciably higher. As regards the rights of neutral states, in consequence of a better recognition of the principle of territorial sovereignty there were fewer instances of the violation of the sovereignty of neutral states by the commission of hostilities by belligerents within neutral territory; and we find Wolff stating, in 1749, that no one may raise troops in a foreign country without the consent of the sovereign; and he who presumes to do so violates the Law of Nations, and therefore does an injury to the foreign state." But in the matter of neutral duties it was still possible, in 1737, for a writer of such good judgment as Bynkershoek to think that "the purchase of soldiers among a friendly people is as lawful as the purchase of munitions of war," and that if help has been promised by a state to an ally, and the latter goes to war with a friendly state, the neutral state must stand by its promise.* Vattel, writing in 1758, qualified his general statement that a neutral state must give no help to either party by the condition, "if it is not bound [by treaty] to do so," upon which he comments as follows: When a sovereign furnishes the moderate assistance which he owes in virtue of a former defensive alliance, he does not become a party to the war: accordingly, he may acquit himself of his obligation and maintain, in other respects, a strict neutrality;" and he attempts to justify this preference of one belligerent over the other on the ground that the neutral state "might have reasons" for confiding its troops to one belligerent rather than to the other. Another exception to the general rule that a neutral must give no help to either party is made with respect to loans of money. Vattel holds that the practice is lawful "so long as it appears that the nation is lending its money solely for the purpose of obtaining interest," and a similar discrimination, as in the case of levies of troops, in favor of one belligerent over the

1Hall quotes several proclamations of neutral states in the 17th century to prove that, in spite of the frequent violations of neutral sovereignty, "the right of a sovereign to forbid and to resent the performance of acts of war within his lands or waters was theoretically held as fully then as now to be inherent in the fact of sovereignty." Op. Cit., 576.

2Jus Gentium, s. 754; Phillimore, International Law, III, §CXLIV. Quaestionum Juris Publici, lib. I, cap. XXII.

4Ibid. cap. IX.

"Le Droit des Gens, liv. III, cap. VII, §§104-105.

Neutral duties become more definite.

other is justified by the principle that a nation has the right to lend its money "where it thinks it has good security."

But putting these inconsistent exceptions aside Vattel is to be credited with having formulated in clear terms the two fundamental principles of neutral duty: First, that the mere impartial treatment of the belligerent parties in the sense of giving equal help to both is not sufficient to comply with the duties of neutrality. A nation must abstain from helping either party; for, as Vattel justly observes, "the same number of troops, the same quantity of arms, munitions, etc., furnished under different circumstances, do not amount to equivalent help." Secondly, in all matters not connected with the war, a neutral state must not refuse to one of the belligerents what it grants to the other.2

The subsequent history of the law of neutrality shows us an increasingly better understanding of the force of the two principles formulated by Vattel, and of their proper application to the disputes arising between belligerents and neutrals. Gradually it came to be generally recognized that a neglect on the part of neutral states to prevent the arming and equipping of cruisers in their ports by private persons, in the interest of belligerents, was in violation of the duties of neutrality. By the year 1788 we find Sweden declaring that the justification of a treaty obligation, offered by Denmark in explanation of the fact that certain of its troops were acting as auxiliaries of Russia against Sweden, was a "doctrine which His Swedish Majesty cannot altogether reconcile with the Law of Nations and the rights of Sovereigns." It was left for the United States, in 1794, by the enactment of municipal legislation for the better fulfilment of its neutral duties, to formulate into a consistent system the most enlightened usages, and to set a new standard of the obligations incumbent upon the status of neutrality.

But it is evident that the standard set by the United States in 1794 could could not be expected to form a permanent code of neutrality. It was a statement of principle as applied to existing circumstances, and was necessarily limited to the continuance of those

1Le Droit des Gens, liv. III, cap. VII, §110.

2Ibid. liv. III, cap. VII, §104.

Hall refers to a series of neutrality edicts issued after the outbreak of the war between England and France in 1778 as illustrating an attempt on the part of certain maritime states to fulfill their duties in this respect. Op. Cit., 584, 4The declaration is quoted in full by Phillimore, III, §CXL.

5The character and effects of this legislation on the part of the United States will be treated in full in the following chapter.

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circumstances, or similar ones. In the course of time new conditions arose which required a more careful analysis of the general principles of neutral duty, in order to secure a more consistent application of them to the actual situation. The consideration of these new deductions from the fundamental principles of neutrality, and of the different rules which have been adopted in consequence, will find its proper place in a subsequent chapter.

Passive duties.

In the light of the fundamental principles determining the status of Analysis of neutrality we may proceed to analyse the ways in which a neutral neutral duties. state may act in violation of it. It was stated above that the obligation of abstaining from all participation in a war imposes upon neutral states both active and passive duties. The passive duties are fulfilled by the merely negative attitude of non-intervention in the war on the part of the neutral state. Here we immediately meet with the distinction between acts of a state in that sovereign and corporate capacity in which it maintains public relations with other states and acts of the citizens or subjects of the state, who as a body constitute the state, but whose actions as individuals cannot be imputed to the governmental organs of the state. Setting aside for the moment the acts of citizens of the state, and considering only the acts of the state in its corporate capacity, it is the accepted rule that a state cannot furnish aid, whether directly or indirectly, to either of the parties at war. How far this general rule must be modified, with respect to indirect aid, by the continuance by the neutral state towards the belligerents of certain acts of comity shown by all states in time of peace, is still one of the debated questions of international law. A fairly satisfactory compromise was reached by the Powers at the. Second Hague Conference by the adoption of rules fixing certain limitations upon the asylum which may be granted to belligerent war-ships in neutral ports, and defining in fairly exact terms the amount of supplies and fuel which may be shipped in neutral ports, and the extent to which repairs may be carried out therein.1 In so far as these acts of courtesy, which may under certain circumstances enable a belligerent to resume hostilities and therefore constitute indirect assistance' to him, are impartially shown to both belligerents, they cannot be said to constitute an interference by the neutral in the war.

Passing from the consideration of acts of a state in its corporate Acts of individcapacity to acts of individual citizens or subjects of the state, we find uals excepted. a different rule applicable to them. It is clear that however much |

1See below, pp. 143-145.

Corresponding right of belligerents.

the state itself may desire to maintain an attitude of non-interference in a foreign war, it cannot exercise such an effective control over its citizens as to prevent them, as individuals, from giving direct or indirect assistance to either of the belligerents. In the first place, the jurisdiction of a state is limited to its own dominions,1 and it would not have the right, even if it had the power, to exercise a control over the acts of its subjects in other countries. Hence, a neutral state cannot be held accountable by a belligerent even for acts of direct hostility committed by its citizens against the belligerent, provided those acts do not take their inception upon the territory of the neutral state. In the second place, even within their own dominions, where they are supposed to exercise a certain measure of control over the acts of their subjects, neutral states have been unwilling to restrict the ordinary commercial undertakings of their citizens merely because those undertakings happen, in time of war between two foreign countries, to result in direct or indirect assistance being given to one of the parties to the disadvantage of the other. A statement of Jefferson has been frequently quoted as illustrating the position taken by neutral states on this subject. In a letter to the French minister, on May 15, 1793, Jefferson said: "We have answered [to Great Britain], that our citizens have always been free to make, vend, and export arms; that it is the constant occupation and livelihood of some of them. To suppress their callings, the only means, perhaps, of their subsistence, because a war exists in foreign and distant countries, in which we have no concern, would scarcely be expected. It would be hard in principle, and impossible in practice. The law of nations, therefore, respecting the rights of those at peace, has not required from them such an internal derangement in their occupations. It is satisfied withy the external penalty pronounced in the President's proclamation, that of confiscation of such portion of these arms as shall fall into the hands of any of the belligerent Powers on their way to the ports of their enemies. To this penalty our citizens are warned that they will be abandoned, and that the purchases of arms here may work no inequality between the parties at war, the liberty to make them will be enjoyed equally by both.”2

The latter part of Jefferson's remarks shows that while on the one hand neutral states have successfully vindicated their claim to be

1The jurisdiction of a state over its merchant vessels on the high seas is of too limited a character to constitute an exception to the principle, in so far as responsibility for acts committed by such vessels is concerned.

2Am. State Papers, For. Rel., I, 147.

released from the duty of interfering with the ordinary commercial avocations of their citizens, on the other hand belligerent states have obtained the recognition of their paramount claim to restrict neutral commerce when direct or indirect assistance might result to the enemy therefrom. It is clear that a large part of the commerce which would normally be carried on between a neutral state and a belligerent state, if the latter were at peace, may prove a serious obstacle to the other belligerent in the conduct of military operations. Supplies of munitions of war, and even supplies of food, whatever be the mercantile basis upon which they are furnished by a neutral citizen to the army or navy of a belligerent, are none the less embarrassing to the other belligerent; and since neutral states have been unwilling to assume the obligation of preventing such supplies from being given, whether from a recognition of their own inability to meet the situation or from an unwillingness to impose an undue burden upon their citizens, the belligerent has been left to apply the necessary remedy. It thus happens that a certain part of the trade of neutral citizens with the belligerents, while not forbidden by the municipal law of their own state, is subject to the penalty of capture and confiscation by the injured belligerent The circumstances under which this right of capture and confiscation may be exercised by a belligerent have been a traditional subject of dispute between belligerent and neutral states. For while belligerent states have been left free to deal directly with the offending neutral citizen, neutral states have been vigilant to see that the belligerent does not act arbitrarily in enforcing his rights.

The active duties of a neutral state are deducible from the principle that if a nation cannot give help to the belligerents without compromising its neutrality, it must prevent them or persons in their interest from making any use of its territory which would give one of the belligerents an advantage over the other. Behind this duty of preventing any use of its territory in favor of either belligerent stands the sovereign right of a state over the domain subject to its jurisdiction. But this right is at the same time the source of its responsibility. It follows therefore that in time of war between two foreign countries a neutral state must actively exert certain rights which lie more or less dormant in time of peace. The neutrality of a state would with reason be regarded as fraudulent if, while professing an attitude of non-interference in the war, it should permit any use to be made of its territory for hostile purposes. The belligerents cannot 1Hall, Int. Law, 75.

Active duties, with regard to