Passive assistance. › 960. Passive assistance is that which is rendered by the members or domiciled residents of the nation, and which it permits, either expressly, or by not pre-. venting it, or which, on complaint, it refuses to redress. Intervention. 961. No nation has a right to intervene between any other nations engaged in war. To intervene is to become a party to the war. If the principles of intervention cannot stand, treaties of guaranty, which contemplate such intervention, must be condemned also; for they have in view a resistance, at some future time, to the endeavors of third parties to conquer or in some way control the guaranteed States in question. An agreement, if it involve an unlawful act, or the prevention of lawful acts on the part of others, is plainly unlawful. Woolsey's Intern. Law, 42, note, p. 57. Recognizing independence of insurgents. 962. So long as a nation is engaged in a domestic war with a portion of its own members, any other nation which recognizes their independence commits an act of aggression, and becomes a party to the war. But it may without offense recognize them as belligerents. See Lawrence's Commentaire sur Wheaton, pt. I., ch. II., p. 174. Recognizing them as belligerents for the purposes of the war is allowed by Article 708. By Article 118, the reception of a public minister from the insurgents would be a recognition of their independence. Mediation. 963. Every nation, party to this Code, may freely offer to mediate between any two or more of the other parties, who may be engaged in war; and neither the offer to mediate, nor the rejection of the offer, shall be deemed an unfriendly act. But no nation may offer to mediate between a nation and its own members, engaged in domestic war. If it be deemed best to extend the restriction against mediation in domestic wars to the case of such wars in nations not parties to the Code, it should be considered whether an exception should not be made of cases where the laws of civilized warfare laid down in Part VIII., entitled THE CONDUCT OF WAR, are disregarded. Woolsey, however, recognizes an exception in the case of crimes committed by a government against its subjects. Woolsey, Intern. Law, § 42, p. 52. See also, Id., § 50, p. 73; and Lawrence's Wheaton, Elem. of Intern. Law, p. 128, § 9; Dana's Wheaton, § 69, p. 115. Active duties of neutrals. 964. A neutral government is bound : 1. To use due diligence to prevent the fitting out, arming, or equipping within its jurisdiction of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a power with which it is at peace, and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended thus to cruise or carry on war, such vessel hav ing been specially adapted, in whole or in part, within such jurisdiction, to warlike use; 2. Not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men; 3. To use due diligence to prevent its members and domiciled residents, and other persons within its jurisdiction, from engaging in any traffic which is contraband or otherwise interdicted under the provisions of this Code,' and from doing any act within its territorial limits which directly subserves the purposes of the war; and, 4. To exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violation of the obligations of neutrals defined in this Division of the Code." This Article, with the exception of the third subdivision, which is new, embraces substantially the rules adopted in the Treaty of Washington for the government of the arbitrators at Geneva in deciding the matters submitted to them, and also for the government of the parties to the treaty in the future; and which they agreed to bring to the knowledge of other maritime nations, inviting their adoption of them. 1 This subdivision is intended to impose a more stringent restriction on neutral traffic in contraband than now exists. 2 The better opinion is that loans of money cannot be raised by a belligerent in a neutral State, without a violation of the latter's neutrality. Halleck, Intern. Law and Laws of War, p. 526; Kennett v. Chambers, 14 Howard's U. S. Supr. Ct. Rep., 38, 44; Gardner's Institutes, ch. XI., & 10. During the Franco-Prussian war, Mr. GLADSTONE stated that, after consulting the law officers of the crown, the government had decided that it would be a breach of neutrality for an English company to lay a telegraphic cable between Dunkirk and some northern point connected with Denmark. Annual Register, 1870, p. 102. On a hearing in the Court of Admiralty, on a charge that the International, a ship belonging to the Telegraph Works Company, was about to sail for France, to lay a cable along the French coast, from Dunkirk to Verdon, it was held that the proposed line was characteristically a commercial and not a military one; and the fact, that it might serve a mili. tary purpose, was not ground of condemnation under the statute. Reported in London Times, January 18, 1871, quoted in Foreign Relations of the United States, 1871, pp. 424, 425. For declarations of neutrality issued by neutral powers during various wars, see Bernard's Neutrality of Great Britain during the American Civil War, pp. 135-150. 3 This subdivision, taken from the Treaty of Washington, is here extended so as to include all breaches of neutrality. Breach of neutrality not justified by precedent obligation. 965. An act which, according to the provisions of this Chapter, is a breach of neutrality, is not excused by the existence of an obligation contracted before the war, to perform or suffer such act. If such obligation was not contracted with express reference to performance during war, the neutral nation may suspend performance during the war, and thereby preserve its neutrality. The authorities are in conflict as to whether assistance rendered to a belligerent, in pursuance of a previous compact, is a breach of neutrality. See Hautefeuille, tit. IV., § II.; Fioré, Nouveau Droit Intern., v. 2, p. 366, who assert that it is. The more numerous authorities support the doctrine, that furnishing to a belligerent a moderate succor, due in virtue of a former defensive alliance, is not a departure from a strict neutrality. Halleck, Intern. Law and Laws of War, p. 514; Wheaton, Elements of Intern. Law, p. 710, § 5; Dana's Wheaton, § 424; Twiss, Law of Nations, Part II., p. 430, and authorities cited. It does not seem practicable to lay down any well defined rule respect ing such violations of neutrality, under color of a previous obligation; and it is thought that, as between the nations uniting in this Code, the exception stated ought not to be continued. These nations may properly reserve the right to renounce any such obligation, on the breaking out of a war, which renders its performance a breach of neutrality, unless it be an alliance expressly contemplating war; in which case, performance ought to be considered a belligerent act. See Article 537, which provides for an alliance to enforce the provisions of this Code. Aid to sick and wounded. 966. Sick and wounded soldiers and sailors, singly and collectively, are neutral so long as they are unable to serve their nation, and succor to them in any form whatever is not a breach of neutrality. In the Franco-Prussian war, 1870, the German wounded were refused passage through Belgium, on the objection of France that it would be a breach of neutrality to allow it. It should seem that there ought to be no such restriction. Pilotage. 967. No assistance can be given by a pilot of a neutral nation to a public armed ship of a belligerent, except in cases of entering or departing, provided for by article 845, or in cases of distress. Mr. GLADSTONE's answer to Mr. HODGSON, House of Commons, August 8, 1870. Purchase of conquest forbidden. 968. A neutral cannot purchase or take possession of a conquered territory from the conqueror, while the war continues. It is inconsistent with neutrality to do so; for either paying for it, or maintaining possession against the original owner, is aiding his adversary. Twiss, Law of Nations, pt. II., p. 127. Halleck, (Intern. Law & Laws of War, p. 802,) however, asserts the general right of neutrals to purchase in good faith. Time when duties of neutrality take effect. 969. The obligations imposed by this Division, on a neutral nation, attach from the time that either belligerent has officially communicated to it the declaration of war; or from the time that it voluntarily makes public in its own jurisdiction, a declaration of its neutrality. See Article 709, and note. Liability for negligence in enforcing neutrality. 970. A neutral nation that fails to exercise a degree of diligence in enforcing the provisions of article 964, in exact proportion to the risks to which either belligerent may be exposed by failure to fulfill the obligations of neutrality on the part of such neutral, is bound to indemnify the belligerent aggrieved thereby for all losses directly resulting from such breach of neutrality. This is the rule of diligence declared obligatory upon neutral nations by the decision of the Tribunal of Arbitration of the Alabama Claims, under the Treaty of Washington. The British government, however, contended for a more lax rule. In the British case it was said that a charge against a sovereign government of having evinced culpable negligence in the exercise of one of the powers of sovereignty, is an imputation which should be sustained by strong and solid reasons. Every sovereign government asserts the right of being independent of all supervision, of all foreign intermeddling in the exercise of these powers; and it must be assumed that they are exercised with good faith and with reasonable diligence, and that the administration of the laws is just and uniform, so long as this assumption is, not set aside by proof to the contrary-an assumption without which it would be impossible to have peace and friendly relations among nations. It is not sufficient to indicate or to demonstrate that a government, in exercising a reasonable discretion on a question of fact or of law, and in making use of the means at its control for acquiring information, forms, for the regulation of its conduct, an opinion which another government may repudiate or may ask an arbitrator to repudiate. Still less is it sufficient to demonstrate that a judgment rendered by a competent judicial court, and by which the executive was guided, is tainted with error. An administrative act based on an error or the erroneous decision of a tribunal, may, it is true, give cause under certain circumstances for a demand for compensation on the part of the person or government wronged by this act or decision. But the charge of negligence against a government should not be established on such basis. It does not suffice to point out or to show that, in the execution of his administrative duties, a government officer acted so as to leave something, however small, to be desired as regards judgment or penetration, or even that he remained within the limits of all possible promptitude and celerity. To found on this basis exclusively a demand |