Cyclopædia of Political Science, Political Economy, and the Political History of the United States
NEUTRALITY may be considered in its principle, in its history, in the rights which it gives, or rather preserves, and in the duties which it imposes.
—I. History of Neutrality. Neutrality flows from the mutual independence of nations. If the right to declare and wage war is one of the rights belonging to sovereign power, is not the right to remain at peace when other nations engage in war a still stronger proof of independence, and a far more precious prerogative of that condition in which a people belong to themselves and are absolute masters of their decisions and acts? From this point of view, the history of the progress of neutrality is also that of the progress of the independence of peoples. If neutrality was, among the nations of antiquity, scarcely anything more than an idle word, and in the middle ages but an object of disdain and hatred; if, even after the formation of modern Europe, it was for a long time weak and precarious, imperfectly defined and insecure, it was because it had not passed through all its social phases and arrived, by means of Christian civilization, at that equal balancing of power among the different states which secures to each a real and important independence. When Rome labored to inclose all the nations of the world in the meshes of her net, there were to be found but tributaries conquered by her arms; dediticii, who had submitted to her yoke; allies, who were in a state of dependence upon her, and were obliged to aid her in pursuing the course of her conquests; or, finally, enemies, who were bound to submit, sooner or later, to her victorious legions: but she recognized no neutrals. Nor could ancient Greece boast any superiority over Rome in this respect; for, within her limited boundaries, her numerous rival and jealous petty republics were leagued in turn one against another; and if neutrality was in a manner acknowledged, it was merely to protect, by means of the amphictyonic treaty, Delphi and its temple: a memorable example given by Paganism to Christianity, and one which serves to show how states can agree among themselves to mutually protect a holy city. But beyond this line of religious' neutrality, what do we find in the world of antiquity? It was not as neutral states, but as the vassals of the powerful kingdoms of the east, that the maritime cities on the coast of Asia Minor and Syria, or those of the Mediterranean, obtained privileges and franchises for their commerce. Their ships of war composed the fleets of the king of Persia and served him as instruments wherewith to attempt the subjugation of Greece itself; as, latter on, they formed the strength of the Roman fleets, when, after the fall of Carthage, Rome undertook the conquest of the world.
—Nor were the centuries which saw the dissolution of the Roman empire centuries of neutrality, but rather of general and incessant strife. What nation would have pretended to remain neutral between the legions of Rome and the barbarians? There was then without doubt a principle in the spirit of Christianity which was destined to transform the world, and to produce modern civilization by mingling the ruins of ancient civilization with the new spirit of the gospel. But before it was able to enjoy peace, modern Europe had to found its independence by war. During the crusades all christendom was under arms. Abroad, the struggle against the infidels was not merely a war of state against state. The question was as to which should rule, Christian Europe or Mussulman Asia. To remain neutral in such a contest it would have been necessary to abandon one's faith. In Europe itself the feudal organization of the several states was no less exclusive of the principle of neutrality. With the requirements of military dependence, which obliged every vassal to sustain, with arms, the cause of his suzerain, the neutral would have been nothing but a felon. It was by means of maritime commerce that the principle of neutrality made its way into the law of nations. But the commercial cities of Italy were too much divided by malicious rivalries to appreciate the advantages of peace. Their very commerce lived by war and increased by the aid of monopoly and arms. The Hanseatic league, founded upon the union of interests, seemed better disposed to the practice of neutrality, but commercial ambition too often led it to deviate from this way. Not content with having obtained its own franchises, it would make a privilege of them, and this great confederation, which should have given peace and freedom to the north of Europe, was the cause of war throughout its whole extent. It was at the time of the decline of the great feudal system, when Europe began to be divided between three or four monarchies, which were about equally possessed of the different elements of wealth and strength, that neutrality became, like the leagues of states, a political means of counterpoise and balance. But at first this means could be used more by small states than by great empires. Commercial cities made use of it to protect their isolated condition; others employed it as a means of developing their power. The neutrality of Switzerland was established not only for the benefit of the Swiss people, but also for the reciprocal advantage of her powerful neighbors, and as an expedient to protect their respective frontiers against sudden invasions. The neutrality of the kingdom of Belgium has been established under similar condition in our own day. But all neutrality imposed by treaties has in it something of weakness. To be complete, the idea of neutrality implies the liberty to choose between peace and war; it supposes, in the neutral nation, strength sufficient to defend, in case of need, the position it has freely chosen. If the state which wishes to remain neutral, has not itself sufficient resisting force, it can ally itself with other nations who have the same interests. Hence, the armed leagues by which neutrality began to cause its rights to be recognized as against the unjust claims of belligerents. Leagues of this kind can be more easily formed in maritime wars than in wars on land, for on land neutral forces, unless belonging to states bordering on one another, could not combine without crossing the belligerent states, while, as the ocean ways always remain free, the naval forces of the neutral powers there find a vast field whereon to rally and to aid each other. Therefore the most important part of the history of neutrality is that which concerns maritime nations, and it was especially in the states bordering on the North sea that permanent interests were first found which made maritime neutrality the basis of their politics. Holland occupies the first rank among these nations.
—In the new order of things created by the discovery of America, maritime commerce, which increased with the increase in extent of the known world, was divided into two parts. The transatlantic commerce remained for a long time in the hands of the Spaniards and Portuguese: but once they reached Europe, the products of America and India were loaded upon Dutch vessels to be distributed from port to port. Thus, as soon as the Dutch achieved their independence, they needed the freedom of the seas to preserve it. England, more ambitious, desired to establish her maritime domination everywhere by monopoly and privilege. She at the same time disputed with Spain the commerce with America, and with Holland the trade of the European seas. She did not then hesitate to proclaim distinctly, for her own benefit, the thesis of the subjugation of the seas. Her colonial system on the one hand, and the navigation act on the other, were the instruments she employed to draw to herself and to concentrate, if it were possible, in her own powerful hands the two branches of the maritime commerce of the world. To resist these pretensions of England the other northern nations felt the need of devising measures of defense and of uniting their forces. The old Hanseatic cities of Holland found for allies those Scandinavian kingdoms over which they had formerly wished to rule. Sweden and Denmark more particularly, as champions of the rights of neutrals, gave proof of an energy which powerfully aided this holy cause. But to insure its success, it was necessary that some of the great maritime powers should put themselves at the head of these leagues, formed not only for the defense of a people, but for the defense of a principle too. France, under Louis XVI., took this generous initiative by the declaration of 1778, and it alone of all the great states did not cease for one instant to lend the support of its influence or its arms to the cause of neutrality, in war as well as in peace, until it had achieved its complete triumph Russia under Catharine and under Paul I. noble concurred in this work of justice, by boldly urging the neutral powers of the north, in its manifestoes of 1780 and 1800, to league themselves together against England; this alliance, however but interruptedly observed, indicated the end desired, without obtaining it. The great event for which France prepared the way, which was to give the neutral powers a new attitude in the world, was the establishment beyond the seas of a great maritime state, which took neutrality as the basis of its political system, and as the grand starting point of the development of its power. It may be that the United States of America have not always defended with sufficient determination all the principles of the right of neutrality; but the very fact of the existence of this permanent neutrality of a great state during the entire period of the European wars of the French revolution and of the first empire, almost with out deviating from its waiting and pacific policy, has very naturally given to the position of the neutral powers in the world a strength which they did not have before. In the face of the antiquated maxims of maritime tyranny which Old England persistently upheld in Europe, there arose the maxims of free navigation which the emancipated colonies of New England professed in America. These maxims France had constantly proclaimed: it was in their name that she had established the continental blockade, which, however, went so far as to violate and destroy all rights. But it was not by such unlawful use of force that the opposition of England was to be overcome. It was by the salutary influence of peace that France obtained, in 1856, of her old rival, now become her ally, the tardy recognition of the principles which formed the basis of the rights of neutrals.
—II. General Principles. This brief historical résumé shows, better perhaps than any amount of philosophical reasoning could have done, how intimately the cause of neutrality is allied to the principle of national independence and maritime equilibrium. It has been the subject of much discussion whether or not, from a scientific point of view, there is to be found a satisfactory and complete definition of neutrality. Viewed from the standpoint of reason, we find this simple truth, that neutrality is "peace established in the midst of war and respecting its rights." The difficulty which perpetually arises between belligerents and neutrals therefore, is to know how to reconcile the rights of war with the rights of peace. It would become impossible to solve this difficulty, if the respective definitions of each of these opposite rights were pushed to the extreme: if it were true, on the one hand, that "anything that can serve to injure an enemy is permitted to belligerents"; and if, on the other hand, it could be rightly maintained that "the neutral power, which wished to remain at peace can take no account whatever of the war, which should be for it as though it were not going on at all." In this absolute antagonism of contradictory principles, no reconciliation would be possible, and the neutral powers would only have to arm themselves to defend their rights by force, if need be. The systems based upon exclusive theories must inevitably lead to this conclusion. Some, under pretense that necessity justifies all things in war, are led to recognize in neutrals no right which does not depend more or less on the caprice of the belligerents. Others, rightly seeing in the cause of neutrals that of commerce and of all the peaceful interests which constitute the life of human society and the wealth of states, would not accord to belligerents any rights except those from which neutrals would not have to suffer in any event. Truth is not to be found in either of these principles. Nor can we find it either in the odd system proposed by Lampredi, which consists in leaving the rights of belligerents and the rights of neutrals to be exercised parallely to the full length that they can extend, as if it were not folly to abandon to chance or force the care of finding the limit which reason should seek for and which should be determined by the law of nations. To make proper allowance for the rights of belligerents, and to establish likewise just limits to the rights of neutrals, is evidently the end which we must strive to accomplish. This was the way taken by the publicists who, in the very midst of maritime wars, began to build upon solid foundations the science of the rights of neutrality, by Bynkershoeck, Hübner, Galiani, Gérard de Rayneval, Azuni, and by Hautefeuille, Massé and Ortolan, who at a more recent date, have resumed and developed these studies in time of peace. Each of these publicists has, according to his personal tendencies, enlarged or restricted the application of one principle or another; but all recognized the fact that war, as well as peace, has its just rights, and that they must limit each other with out any one of them being suppressed, unless it be those which have nothing but the name of right, and which are manifest inventions of violence and arbitrary power.
—Side by side with this labor of science there was another labor going on in morals, which was destined, without doubt, to prepare and facilitate the recognition of the rights of neutrals. It would be an interesting and profitable study to note how many injustices disappear of themselves according as individuals and nations gradually correct false theories founded upon ignorance and error. The moral result we here refer to was aided even by the material revolution operated in our day in the art of war, and, above all, in naval warfare.
—In the conflict between the two principles represented by belligerents and by neutrals, the principle of peace and the principle of war, every inch of ground is disputed, and the right of peace naturally profits by every surrender made by the right of war, either spontaneously or by force, in the same of strict justice, or in the name of humanity. Thus, in 1856, the spontaneous resolution of the maritime powers to abolish the right of privateering effected the realization of a progress most favorable to the interests of neutrality, although neutrals had in principle no right to claim such a softening of the severities of war. This last consideration was absolutely indispensable in order to show the true character of the recent progress of the law of nations. We would have a very imperfect idea of this progress if we were to study each fact in it apart from the others. They are connected one with another, and can not be exactly appreciated except when considered as a whole. Neutrals did not obtain justice for their most sacred rights in time of war until commerce had obtained the recognition of the grand principle of the freedom of seas in time of peace.
—III. Duties of Neutrals. Neutrality being, as its very name indicates, nothing more than an abstention from war, the fundamental duty of neutral nations consists in abstaining from all participation in hostilities. Neutrarum partium esse; neutri parti, belli causa, favere, as Wolff expresses it. But beside this duty, which constitutes, so to speak, passiveneutrality, there is another, the fulfillment of which requires neutrality to become active, that is, impartiality in the performance of the good offices which the neutral powers ought to render to each of the belligerents.
—The first principle is self evident, and the second is the result of reasoning and theory. If a neutral power loses all claim to this title when it directly aids either party in the war, is it any more in keeping with its character to refuse to one of the belligerents the indirect assistance which its partial friendship lends to the other? But let us proceed. From this impartiality of neutral powers, which has been made a duty, it has been concluded that such powers should so act as not merely to offer the same friendly relations to both the belligerents, but also to prevent either one of them from assailing with impunity the rights and privileges of neutrality, by violating by hostile acts, for instance, the territory or territorial seas of a neutral state.
—There are, above all, two very weighty matters connected with the duty of abstention imposed upon neutral powers, the law of contraband and the law of blockade. The two things are intimately connected with each other. In fact, when we say that neutral powers ought to "abstain from all participation in hostilities", we do not say enough; and this duty, by a natural consequence, requires that a neutral power should do nothing the direct result of which would be to prevent between two enemies the warlike operations allowed by the law of nations. Hence it follows, that neutral powers are obliged not only not to carry contraband of war to belligerents, but also to respect a blockade established under regular conditions. In general, "anything for use in war" furnished the enemy by a neutral power, is called contraband of war. But if we take this word in its broadest acceptation, it is evident that all commerce between belligerents and neutral powers should be forbidden. In fact, war, and especially naval warfare, is waged, on the one hand, by means of arms of different kinds which must be manufactured and supplied with ammunition; on the other hand, by means of soldiers and sailors, who must be enrolled, paid, clothed, equipped and fed; finally, by means of ships, which must be built and, if necessary, clad in iron, armed with powerful machines, and provisioned. What then would remain, if we were to reckon as contraband everything that might serve, either proximately or remotely, the many and varied requirements of war? A distinction had, therefore, to be made between articles which might be freely traded in and articles of contraband: but to whom should belong the establishment of this distinction? To give it to belligerents would be to destroy the rights of neutrals. To give it to neutrals would be to compromise the rights of war. States finally agreed, by international treaties, what kinds of merchandise, what persons and what acts should be considered contraband. Thcy acknowledged the fact that the manufacture or sale of all articles, even those to be used in war, can not in general be prohibited upon neutral territory; that in accordance with this principle, and saving all proper exceptions, the only kind of commerce which is absolutely forbidden to neutrals is the transportation of contraband goods to the enemy's country, whether these goods have been already sold upon neutral territory or whether the object of their transportation is, that they should be sold to one of the belligerents in its own ports. Among the rare exceptions to this rule there are two deserving of special notice: the one has reference to the enlistment of soldiers, and the other to the building or arming of ships of war in a neutral country for the service of belligerents.*72 It is perfectly clear that in these two cases it is not a question of things that merely may be used in war, but rather of things that constitute the body and substance of war itself, for no naval war can be carried on, or even imagined, without ships of war, nor can a war of any kind be waged without soldiers. Thus not only the transportation but even a sale made to a belligerent is, for a neutral, a hostile and forbidden act. As to other articles of commerce, the secondary law seems to have adopted as its rule that only those articles should be included in the contraband list which, in the state in which they are delivered to the enemy, can be of immediate service in carrying on the war, whether they consist of arms and implements of war or of materials that are of themselves directly fitted for use in war. To do away with all doubts, many of the great international treaties contain, together with the list of things prohibited in time of war, a counter-list of those that are not forbidden. Nevertheless, no matter what trouble may be taken to regulate these details of the secondary law, the changes which are constantly occurring in the art of navigation and in the form of engines of war give rise to new questions in every epoch. To cite but one: the question has arisen in our own day, whether coal should not, by reason of its indispensable necessity in steam fleets, come under the prohibition which most of the great European treaties have placed upon sulphur and saltpetres but public opinion would protest against this classification; for, of all the mineral substances which the earth conceals within its bowels, what one is there more inoffensive in its nature, and what one is there that owes less to the labor of man than coal, which passes, in its natural state from our mines to the furnaces of our steamships? within these limits the interdiction of the carrying of contraband of war to the enemy is surely the most reasonable and just of all the burdens imposed upon neutrals by the law of nations. It would even be difficult to understand how this prohibition could disappear without profoundly affecting the natural notions of peace and war. Is it not already a great deal for neutral nations to be allowed to take advantage of the immunity of their territory to manufacture and sell to belligerents munitions and arms, which are the instruments wherewith they fight? To transport these arms in their own vessels to the very theatre of the war would be, in the eyes of morality, to overstep the limit which separates peaceable commerce from active participation in hostilities, Does not the merchant, who, for a consideration, puts the gun into the hands of the soldier, perform an act of war as much as the soldier himself, who, by pulling the trigger, inflicts death directly?
—It must, however, be admitted, that even a limited interdiction of contraband of war produces a lamentable consequence for neutrals—that neutral vessels are obliged to submit, even on the high seas, to be searched by belligerents. There is, perhaps, no arbitrary and violent measure which has, in practice, been the cause of more dissatisfaction and hatred than the abuse of the right of search. Nothing irritates a proud and generous people so much as the vexations to which their fellow-countrymen are daily exposed. But are the abuses of the right of search of such a character that they can not be corrected? Would it not be, not only possible, but easy, by reducing the thing to what the name expresses, by submitting the verification of the ship's papers to certain rules, without authorizing the annoying search of the interior of the vessel, to have the inspection accompanied with so much politeness and consideration that it would lose its character of a police measure and become little more than a mere formality? The only inconvenience it would then cause an unoffending vessel would be a slight delay.
—There is not, on the contrary, in the entire law of nations a principle whose application produces graver, more irreparable and apparently more unreasonable consequences to the neutral than the right of blockade. In everything else it is upon belligerents, and justly so, that the evils of war press heaviest; for the belligerent, who suffers by the war, always has a means of putting an end to his sufferings by offering or accepting peace. But what means of putting an end to the war has the neutral who suffers from the blockade, if his offers of mediation are rejected? He may, therefore, see himself ruined by a state of things which he has done all in his power to prevent.
—IV. Rights of Neutrals. Whatever may be the fatal necessity of war, whatever may be its justice, dignity and glory under certain circumstances, it is but an exceptional and abnormal state in the life of civilized nations. What are called the rights of belligerents are means of force and violence, which, in order to secure satisfaction for a just grievance, disturb all the ordinary relations of nations. With the rights of neutrals it is entirely different. Neutrality, as we have said already, represents commerce, civilization and peace. Its noble mission is to continue this peace in the very midst of the barbarities of war. Its rights are nothing else than the common rights of mankind, and we have no need of subtle definitions to explain them. According to Hübner's idea, whatever is not forbidden to neutrals by a formal restriction of the law of nations, is allowed them. First of all, they have a right, an absolute right, to respect for their persons and their goods.
—Respect of territory is the first condition of the independence of neutral nations: it is also the easiest to observe, for here the line of demarcation between peace and war is traced with mathematical accuracy. The opinion was, however, held in former times that the belligerent had the right to convey his troops over neutral territory, provided it were done in an inoffensive manner. This is what Grotius and his school call transitus innoxius. Vattel even went so far as to pretend that a belligerent could, in case of extreme necessity, place a garrison for a time in a fortress situated in a neutral country. But all now agree that to take neutral territory by force in order to use it for warlike operations would be a flagrant violation of the rights of neutrality.
—By neutral territory is meant not only the continental or insular possessions of a neutral state, but even those parts of the sea near the shore which the law of nations considers as part of the territory of a country. We will presently consider the question whether a neutral vessel should not also be considered as a detached portion of the territory.
—The immunity of neutral territory naturally protects everything that is found in it, both the goods and persons of neutrals themselves and the goods and persons of belligerents. This is what constitutes the right of axylum. But, in order thus to share the privilege of neutrality, it is necessary that the belligerent who resides or takes refuge on neutral territory should continue, while he enjoys this asylum, in a situation analogous to that of neutrals themselves, that is to say, he should abstain from all acts of hostility.
—The lives of the enemy's troops, when closely pressed in a hard pursuit, are spared, if they succeed in reaching the frontier of the neutral state; but they must at once lay down their arms. Ships of war of belligerents may find a similar refuge in a neutral port, or in the waters of a neutral country near such a port. Once received into this port the crew of a ship of war may revictual the ship there, and repair the injuries she has received from storms or in battle, but upon condition of there living at peace with any of the enemy's ships that chance, tempest or war may have driven like herself, into this place of asylum. Further: if this armed vessel desire to put to sea again, the law of nations, in its foresight. will not allow her to leave a neutral port until one day after the departure of the enemy's ship which had preceded her has elapsed. The sacred rights of hospitality have imposed this salutary restriction upon the rights of war, which is known as the twenty-four hour rule.
—If the law of nations protects even the persons and goods of the enemy upon neutral territory it has still greater reason to protect the goods and person of a neutral upon the territory of belligerents. But, by a just reciprocity the citizens of a neutral state, residing in the theatre of war, can avail themselves of this right of immunity only so long as they remain neutral in their acts as well as by their nationality. If they take a personal part in the war, they must submit to the laws of war. But so long as they abstain from all mingling in hostilities, their privilege as neutrals follows them every where: however isolated they may be in a strange land, their cause must not be confounded with that of the people with whom they are accidentally intermingled. How, then, shall we qualify, from the point of view of justice, the measures by which a belligerent, the moment a war is declared, lays hand on neutral ships moored in his ports. cither arbitrarily to detain them under form of an embargo, or to press them into service for the transportation of troops or munitions of war in virtue of a pretended right of angaria? These measures are evidently contrary to the rights of neutrals, and can find no pretext for their practice but in the iniquitous theory, that everything necessity requires, even though it act as an injury to neutrals, is excusable or lawful.
—We have reserved for the last the consideration of the gravest and most debated series of questions, those which concern commerce by sea between belligerents and neutrals. On land the separation of peace from war is naturally made by the distinction of natural territory. On the high seas this separation is altogether a moral one, and can only exist and be enforced according to the rules laid down in the law of nations. The vast expanse of the ocean is no one's domain; it belongs in common to all nations, and serves equally for the uses of peace and of war. It is the grandest commercial route for the peaceful intercourse of nations and the largest battle-field for the settlement of their quarrels. The law of nations established the separation between belligerents and neutrals at sea by the use of the flag, which is the conventional sign of the nationality of vessels. As to ships of war, as they represent the national force of the state whose flag they carry, and are armed for its defense, the right of a neutral flag to the absolute respect of belligerents has never been called in question. But in regard to inoffensive and unarmed merchantmen, it seems to us almost incredible how variable and confused the rules of maritime law were for a long time. The enjoyment of the rights of neutrality certainly could not be denied to a ship when the vessel and the cargo both were the property of neutrals. What was denied to neutrals was the right to transport upon their vessels even goods not contraband belonging to the enemy. There was a time when it was considered not only just but indulgent toward neutrals for a belligerent power to confine itself to confiscating an enemy's goods found on board of a neutral vessel, provided the vessel itself was allowed to continue its journey, and the captain was paid for the freight he would have earned on the intercepted merchandise. This was the provision of the consulat de la mer, and became almost the common law of the middle ages. In some maritime states the domestic laws concerning prizes went much farther: they condemned to confiscation not only an enemy's goods, but also the neutral ship which carried them. An ordinance issued in 1681 by Louis XIV., who was so wise upon other points, sanctioned the unjust maxim: "robe ennemie confisque navire ami."
—Some laws and treaties, carrying their violation of the rights of neutrals to the utmost limit, laid down the principle that "navire ennemi confisque robe amis." Thus the nationality of the belligerent vessel seemed to communicate its character to neutral merchandise and cause its loss, while the nationality of a neutral vessel was effaced by contact with an enemy's goods. In order to understand such a deviation from the rules of justice, it must be borne in mind that privateering was then the chief means of carrying on a maritime war, and that "to encourage privateers" they believed themselves obliged, by reasons of state, to deliver over to them not only the enemy's goods, but those of neutrals also. Only the abolition of this kind of war could dry up the source of the evil. Progress had been at first slow and imperfect. Down to the middle of the eighteenth century it was believed that the suppression of the two most odious cases of confiscation, by declaring neutral vessels exempt from confiscation for carrying goods belonging to the enemy, and by declaring the goods of a neutral not liable to seizure when found on board an enemy's ship, would be sufficient justice. It was quite a different thing to declare that an enemy's goods carried by a neutral vessel should be everywhere respected. The principle of free transportation of an enemy's goods by neutral vessels was, it is true, admitted by a great number of European treaties; but the internal public law of England and even of France obstinately retained the contrary principle; and the same disagreement which existed in practice between the internal laws and the treaties existed, in science, between the different opinions of publicists. At the very time that it was to Holland's best political interest to cause the exemption of the neutral flag to be recognized, the celebrated Dutch publicist, Bynkershoeck, declared that, viewed from the standpoint of natural law, he saw no reason to exempt from seizure by belligerents an enemy's goods when carried upon neutral vessels.
—There are two ways of looking at a neutral vessel freighted with an enemy's cargo. We may, on the one hand, look at such a vessel from a totally material point of view, and see in it "only a sea vehicle" which serves to transport goods, but without changing the laws which govern them. Or, on the other hand, we may ascend to a higher plane and consider a merchant vessel as a detached parcel of the neutral territory, which, upon an element essentially neutral, preserves the privilege of covering with territorial inviolability all that it carries with it. This beautiful and generous theory, which Hübner was the first to proclaim and Hautefeuille defended in an able and complete argument, could belong only to an age of civilization and progress. It impresses the mind by the noble simplicity of its formula (the ship is territory), and attracts it by the greatness of the interests which it protects; but does it possess, in an equal degree, that decisive authority which compels acceptance in virtue of a principle of natural and absolute justice? I should regret to enfeeble the reasons so confidently and so earnestly advanced in favor of a cause to which all the sympathies of my soul incline. Nevertheless, now that this great cause has won, we may explain to ourselves the resistance and delays its triumph met with by admitting that there was question here not so much of accomplishing an act of strict justice, as of taking another step upon the road of the progress of mankind; not so much of recognizing a right of neutrals, as of tempering and softening a right of war. What was the right which the belligerent denied the neutral flag? The right to take from its pursuit commercial and private property of the enemy. The fixed territory of the neutral power protects such property only on condition that it remain motionless in the neutral state. The ship, which the law of nations made neutral territory, though floating and traveling territory, transports the enemy's goods to all points of the globe, puts them within the reach of all nations, and in fact restores, through the intermediation of neutrals, the possibility of maritime commerce by the enemy which the belligerents claimed to have the right to destroy.
—This pretended right of suppressing all the commerce of an enemy was too long claimed by England. It was claimed by her when she wished to forbid neutrals the power to substitute during war their own vessels for those of belligerents between a mother country and a colony beyond the seas, and again when she denied to the commanders of ships of war of a neutral state, serving as escort to merchant vessels, the right to exempt the latter from search, by asserting their neutrality and declaring that they carried no contraband. The trouble and wars which this question of the search of convoyed vessels occasioned in the maritime world at the close of the last century, are well known. All these consequences of the old principle naturally fell with it, and the new principle "that the neutral flag absolutely covers the merchandise, even though belonging to an enemy, provided it is not contraband" thus became the keystone of modern maritime law.
—V. Conclusion. To sum up in a few words the principles and facts in the foregoing, we may distinguish three periods or three degrees in the progress of international law in what concerns neutrals and especially maritime neutrals.
—Down to the declaration of Louis XVI., in 1778, the rights of neutrality were in some measure left to the mercy of the domestic laws and particular treaties entered into between different states. Not but that we find written in the most important of these treaties respect for the neutral flag with a more or less exact definition of contraband of war, and certain provisions limiting the right of maritime blockade; but, as no general agreement had been concluded upon this subject, the true principles were sometimes admitted and sometimes disregarded, according to changing circumstances and the caprice of governments.
—In the second period, which extends from 1778 to 1856, the neutral nations endeavored, in different ways, to concert together more exactly to define their rights and secure their recognition, either by diplomatic means, or even, if necessary, by force of arms. France, Russia, and the United States, in turn, took the lead in this progressive movement, which, begun in time of war, is followed up and extended in time of peace. The cause of neutrality became little by little the cause of all maritime nations, except England; for this last named nation, trusting in her strength and always regarding her commercial empire as indissolubly connected with the maintenance of her old maxims touching her rights on the sea, could not bring herself definitively to renounce any of them.
—The cessation of England's opposition marks the third period. Yielding to the force of circumstances which led her toward a system of commercial liberty, she consented to recognize the fundamental principle that "the neutral flag covers an enemy's goods". Men now began to perceive at last that the recognition of the rights of neutrals was most intimately connected with the lessening of the hardships of war and the free development of international commerce. They therefore resolved upon the abolition of privateering as the principle from which was to flow the freedom of the seas, such as it is understood in the nineteenth century.
—Under this two-fold aspect, the second article of the declaration of principles of April 16, 1856, is in our eyes the culmination of the progress ending; and its first article the point of departure of a new progress. Text of the declaration: "1. Privateering is now and for ever abolished; 2. A neutral flag covers enemy's goods, excepting contraband of war; 3 Neutral goods, excepting contraband of war, shall not be seized under the enemy's flag; 4. A blockade, to be obligatory. must be effective, that is to say, it must be maintained by a force sufficient to prevent access to the enemy's coasts."
Notes for this chapter
The treaty of Washington, May 8, 1871, between the United States and Great Britain (Alsbama claims) lays down the following principles: A neutral government is bound, 1, to use all diligence to prevent the arming of any vessel which it has reason to believe is intended for service as a privateer, or to take part in hostile operations against a power with which it is at peace, and also to use the same diligence to prevent even the departure from its jurisdiction of any vessel destined for privateering, or to take part in hostile operations, such vessel having been in whole or in part adapted for purposes of war within said jurisdiction; 2, not to allow any of the belligerent nations to make its ports or its waters a basis of operations, nor to make use of them to increase of replenish their military supplies or arms, or to recruit troops; 3, to exercise all necessary diligence in its own ports and waters, and over all persons under its jurisdiction, to prevent any violation of the obligations and duties above mentioned.
End of Notes
Return to top