and railways. At the present moment (August, 1894) the belligerent governments of China and Japan are besieged by offers of money from groups of European investors. When practice points entirely in one direction it is idle to pit against it a so-called rule based on nothing better than the statement that gold is a prime necessity in war. It certainly is; and nearly all agree that a belligerent may lawfully confiscate any supplies of it he may find in a neutral vessel on its way to his enemy. Money is contraband of war, and must be treated like other articles in the same category.1 The neutral trader in it lends at his own risk, but he commits no breach of the common law of nations by lending, and his government is under no obligation to attempt the impossible task of preventing him. When in 1823, the British Cabinet consulted its law officers as to the legality of subscriptions and loans "for the use of one of two belligerent states by individual subjects of a nation professing and maintaining a strict neutrality between them," it received in reply an opinion to the effect that voluntary subscriptions of the nature alluded to were inconsistent with neutrality and contrary to the law of nations. But with respect to loans the distinguished lawyers consulted, among whom was Copley, afterwards Lord Lyndhurst, declared that "according to the opinion of writers on the law of nations and the practice which has prevailed, they would not be an infringement of neutrality." The documents in which these views are embodied are printed at length by Sir Sherston Baker in a note to his edition of Halleck; 2 but they certainly give no support to the opinions expressed in the text of the book against the legality of commercial transactions in money between neutral individuals and belligerent governments. Even in deciding, and rightly deciding, that voluntary gifts and subscriptions were illegal, the British law officers took care to add that the belligerent against whom they were directed would not have the right to consider 1 See §§ 277-279. 2 International Law, II., 195-197. them as constituting an act of hostility on the part of the neutral government. Moreover, they abstained from recommending a prosecution of the subscribers on the ground that it would be almost certain to fail. There has never been any question among competent authorities of instituting legal proceedings against neutral subjects concerned in floating loans for belligerents or taking stock therein. The utmost extension of the obligations of neutral states in this matter can make them go no further than the prohibition of any assistance direct or indirect on the part of their executive officers. This applies to sales of arms, stores and instruments of warfare, as well as to loans of money. In 1885 Mr. Bayard, then Secretary of State at Washington, instructed the American Consul-General at Shanghai to withhold consular intervention, where it was necessary in order to effect a valid transfer of American-owned steamers to the Chinese Government for use against France in the hostilities then raging between the two countries.1 Nothing more could be required by the most exacting belligerent. A neutral administration which refrains from such transactions itself, and refuses official aid and countenance to any of its subjects who take part in them, has fulfilled its entire duty. $ 255. A curious instance of the growth of opinion in matters of international concern is afforded by the obligation of neutral states Not to allow belligerents to send troops through their territory or levy soldiers therein. It is now acknowledged almost universally that a neutral state which permits the passage of any part of a belligerent 1 Wharton, International Law of the United States, § 393. send troops territory or levy soldiers therein. army through its territory is acting in such a partial manner as to draw down upon itself just reprobation, and with regard to permission to recruit a still stronger (8) Not to allow feeling exists. Yet Grotius laid down that a belligerents to right of passage existed and might be taken through their by force if denied without just cause,1 and Vattel declared that it was no breach of neutrality to permit levies of troops in favor of a belligerent, if they did not form his principal strength.2 The Swiss publicist discussed also the question of a right of passage. He reasoned about it at great length, and came to the conclusion that the belligerent should always ask it of the neutral and never presume to take it by force, except under stress of extreme necessity or when the refusal was on the face of it unjust. In all other cases the denial of the neutral state must be conclusive; but if it gave the required permission it was guilty of no offence, provided that it was ready to grant a similar passage to the opposing troops at the request of their government. This doctrine is still to be found in the works of writers of repute. Wheaton, for instance, admits a right of passage, but calls it an imperfect right, by which he means that it cannot be enforced against the will of the neutral, and Manning declares that it may be granted without an infraction of neutrality as long as it is given impartially to both sides. But, as Hall points out, the more recent writers express a contrary opinion, and there can be little doubt that they are right. Such a grant of passage is in its own nature incapable of impartial distribution, however blameless may be the intentions of the neutral who grants it. In the crisis of a great war it may be a matter of life and death to one belligerent to pass a body of troops 4 1 De Jure Belli ac Pacis, Bk. II., II., XIII., and Bk. III., XVII., II. 3 Ibid., III., §§ 119-134. 2 Droit des Gens, III., § 110. International Law, § 427. 5 Law of Nations (Amos's ed.), Bk. V., Ch. II. • International Law, § 219. across an outlying portion of neutral territory, whereas the other may never be placed in a similar position through the whole course of hostilities. It would be little consolation to him in the midst of defeat and ruin to be told that he would have received the same privileges as his adversary, had the conditions been reversed. Moreover, the permission is of necessity given to further a warlike end, and is therefore inconsistent with the fundamental principle of stateneutrality. These considerations have influenced practice during the present century, and the weight of modern precedent is against the grant of passage in any case. In 1815 permission was extorted from the unwilling Swiss for the passage of Austrian troops through the territory of the Confederation on their way to invade Southeastern France.1 But in 1870 the government of the Republic would not allow bodies of Alsatian recruits for the French army to cross her frontiers. In the same war Belgium declined to give permission to the Germans to send their wounded home over her railways, on the ground that to relieve the congestion of their lines of communication with their own country would enable them to bring up troops and stores more easily for the reinforcement and support of the armies invading France.2 There was some controversy at the time as to whether this was not an undue and over-scrupulous extension of neutral duties. France, however, declared that she would regard the passage of German wounded over Belgian territory as a breach of neutrality; but in 1874 her representative at the Brussels Conference was able to assent to the guarded doctrine contained in the Military Code then drawn up. Article 55 declared that "the neutral state may authorize the transport across its territory of the wounded and sick belonging to the belligerent armies, provided that the trains which convey them do not carry either the per 1 Wheaton, International Law, §§ 418, 419. 2 Rolin-Jacquemyns, La Guerre Actuelle in the Revue de Droit International, Vol. II., pp. 708, 709. sonnel or the matériel of war."1 In 1877 the United States strongly remonstrated with the Government of Mexico on account of the violation of the Texan frontier by a body of troops who pursued some flying insurgents on to American soil, and there attacked and dispersed them.2 The only instance of permission in recent times is afforded by Roumania at the commencement of the Russo-Turkish war of 1877. Just before the outbreak of hostilities the Russian and Roumanian Governments negotiated a convention by which the former agreed to give the troops of the latter free passage through its territory on their march to the Danube for the purpose of invading European Turkey. They were to have the use of all railways, roads and telegraphs, but were not to pass through Bucharest, the Roumanian capital, nor to interfere with the internal affairs of the state. The Russian commanders were responsible for the good order of their soldiers, and were to pay for all supplies they took from the country. In pursuance of this agreement at least half a million Russian troops passed through Roumania during the war, and crossed the Danube into Bulgaria. The case looks at first sight like an important reversion to the old practice; but on closer examination it proves to be an utterly anomalous proceeding which cannot be drawn into precedent on one side or the other. The only purpose it serves is to illustrate afresh that strange divorce between diplomatic theory and concrete fact which is a prominent feature of the complicated group of problems called by Europe the Eastern Question. Technically Roumania was a part of the Turkish Empire, and therefore the entry of Russian troops into Roumanian territory was in law an invasion of Turkey. In reality Roumania was a self-governing state, whose nominal subjection to Turkish suzerainty scarcely concealed its practical independence. It recognized in the Russian attack on 1 British State Papers, Miscellaneous, No. 1 (1875), p. 324. 8 Fyffe, Modern Europe, III., 497. |