The divisions of the Law of Neutrality. § 248. One of the most important distinctions in the whole range of International Law is that between the two senses of the word neutral when used as a substantive. It may mean either a neutral state or an individual who is a subject and citizen of a neutral state. The rights and obligations of the former differ widely from those of the latter; and yet, owing to the ambiguity of the term applied indifferently to both, even approved writers sometimes use language calculated to cause error and confusion. Halleck, for instance, says of neutrals, "While in some respects their trade and commerce may be increased in extent and profit, it is restricted with respect to blockades and sieges and the carrying of contraband, and their vessels are subjected to the inconvenience and annoyance of visit and search. Not only are they obliged to maintain strict impartiality towards the belligerents, but they are bound to prevent and punish any violation of the rights of neutrality by either of the parties at war with each other." Of these two sentences the first applies exclusively to neutral individuals, the second to neutral states. Yet there is nothing in the text to suggest the difference, and a student reading them without the aid of other sources of information would imagine either that neutral vessels of war were used as tradingships and subjected to belligerent search, or that neutral individuals were under an obligation to punish any violations of neutrality by the parties to the war. Both propositions are not only untrue, but the very reverse of the truth. It would be absurd to suppose that Halleck wished to convey impressions so obviously wrong. His mistake lay in neglecting to make a distinction at the outset between the two great divisions into which the whole Law of Neutrality naturally falls. They are 1 Halleck, International Law, Ch. XXIV., § 3. I. Rights and obligations as between Belligerent States and Neutral States. II. Rights and obligations as between Belligerent States and Neutral Individuals. The distinction has only to be stated in order to be recognized as just and necessary. A neutral state has many rights against a belligerent which from the nature of the case a neutral individual cannot have, and is under many obligations from which a neutral individual is free. On the other hand the neutral individual may do many acts which the neutral state may not do, and is subjected to many interferences from which the neutral state is free. And just as the rights and obligations differ in the two cases, so also do the remedies. When state wrongs state, the remedy is international; but when a neutral individual indulges in conduct which a belligerent has a right to prevent, the injured government strikes directly at him and punishes him in its own courts. The neutral state of which he is a subject has nothing to do with the matter, unless the belligerent attempts to punish for acts deemed innocent by International Law or to inflict severer penalties than its rules allow. As we consider in detail the rights and obligations of neutrality, the distinction we have just drawn in outline will become fully apparent. Our two main divisions work out into a variety of subordinate heads, each of which will be dealt with in a separate chapter. The following table shows in a graphic manner the way in which we propose to arrange the subject. Law of Neutrality as between II. Law of Neutrality as between (1) Duties of a Belligerent State towards Neutral States. (2) Duties of a Neutral State towards (1) Ordinary Neutral Commerce. (3) Contraband Trade. (4) Unneutral Service. CHAPTER II. THE DUTIES OF BELLIGERENT STATES TOWARDS NEUTRAL STATES. § 249. THE law of nations is fairly explicit on the subject of the obligations of belligerent states in their dealings with those of their neighbors who remain neutral in the contest. The first and most important of their duties in this connection is To refrain from carrying on hostilities within neutral (1) To refrain from carrying on hostilities within territory. We have already seen that, though this obligation was recognized in theory during the infancy of International Law, it was often very imperfectly observed in practice. But in modern times it has been strictly enneutral territory. forced, and any state which knowingly ordered warlike operations to be carried on in neutral territory, or refused to disavow and make reparation for such acts when committed by its subordinates on their own initiative, would bring down upon itself the reprobation of civilized mankind. Hostilities may be carried on in the territory of either belligerent, on the high seas and in territory belonging to no one. Neutral land and neutral territorial waters are sacred. No acts of warfare may lawfully take place within them, and if any are unlawfully entered upon, the offending belligerent ought to make ample reparation and apology. The rule is strictly construed against warring powers. Even when their cruisers have begun the chase of an enemy vessel on the high seas, they may not follow it into neutral waters, and there complete the capture. Prepa Nevertheless all authorities admit that the exigencies of self-defence will justify a temporary violation of neutral territory. But it must be confined within the strictest limits. required by the necessity of the case, and the power which is obliged to resort to it should tender a prompt apology. The act is illegal; but if the necessity is sufficiently imperative, a wise neutral will condone it on the tender of proper explanations. The whole question was threshed out in the case of the Caroline, which occurred in the course of the rebellion against the British authorities in Canada during the winter of 1837-1838. The insurgents had occupied Navy Island, an island in the Niagara River, through the midst of which the boundary between the United States and the British possessions runs, and with the aid of American sympathizers they were using the steamer Caroline to transport munitions of war and armed men to the island. rations were being made to cross from it to the Canadian side, when the British commander determined to put an end to the danger by seizing the insurgent vessel. He sent a body of men to capture her in the night at her usual moorings in Canadian waters. She had, however, been moved over to the American side, whither she was followed by the attacking party, who boarded and captured her, and then set her on fire and sent her adrift down the rapids and over the falls of Niagara. A correspondence ensued between the two governments, each of which deemed that it had a grievance against the other. The Cabinet of Washington complained of the attack as an outrage upon the territory of the United States, and the British Ministry replied by calling attention to the impunity enjoyed by the insurgents in fitting out armed expeditions on American soil. No satisfactory result was arrived at, and after a time the matter dropped, till its reappearance in a more threatening form was caused by the arrest of Alexander McLeod in January, 1841, within the territory of the State of New York. He had been a member of the party which boarded the Caroline, and was put on his trial for the murder of one Durfee who had been killed in the attack. Great Britain demanded his release on the ground that he was acting under orders from his commanding officer and was therefore an agent of the government. The act in which he took part was a state act, for which the nation assumed full responsibility. It was argued that under such circumstances an individual could not be held answerable in his private capacity; and Mr. Webster, then Secretary of State at Washington, admitted the justice of the contention, while pointing out that, as the case had come before the courts, the release of McLeod must be brought about by judicial procedure and could not be effected by administrative order. Unfortunately technical difficulties, since removed by act of Congress, blocked the way; but the accused was at last found "not guilty" by a court of the state of New York, and in consequence regained his liberty on the main issue and not on the point raised by the British Government. During the correspondence upon his case the question of the capture of the Caroline was revived, and Lord Ashburton, who had been sent to Washington in 1842 to settle all outstanding difficulties between England and America, expressed regret for the violation of neutral territory and the absence of any explanation and apology at the time. He, however, contended that the attack on the Caroline was justifiable by the test that Mr. Webster himself had supplied in the statement that, in order to excuse such an act, it was necessary "to show a necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation." The American Government accepted these assurances in a conciliatory spirit, and the incident then terminated.1 It may be held to show that 1 Wharton, International Law of the United States, §§ 21, 50 c., 350; Annual Register for 1841, pp. 310-317; Annual Register for 1842, pp. 319-320. |