2. A neutral Government is bound to prevent the neutral territory from being so used.

3. A neutral Government, if it permit, or fail to prevent, such use of the neutral territory, becomes a direct participator in the belligerent operations.

The first proposition is the main hinge of the argument. The second is a mere corollary, and the third, although going beyond in words what is directly propounded in the Case, is in reality the result at which the reasoning should logically arrive, and that which the portentous demand with which it concludes necessarily implies. In drawing the unrestricted conclusion of our liability for the general expenses of the war, the Case forcibly illustrates the importance of the first proposition on which the argument is built, and exhibits the absolute necessity of fixing the rights of belligerents on a specific and firm basis, if we expect the position of the neutral to be tolerable or practicable for the future. This is the more important, as it will appear in the sequel that the principles on which these propositions depend cannot be confined to vessels intended for warlike purposes, but would, if admitted, extend to all articles which are contraband of war. We propose, therefore, to devote a few pages to elucidate the foundation and the limits of such belligerent rights.

war.

We designedly speak of the rights of belligerents, not of the rights of neutrals. Neutrals acquire no rights by the quarrels of their neighbours. Excepting in so far as they may be limited by the privileges of belligerents, the rights of neutrals are precisely the same, whether other nations are at peace or at It is a fallacy, or rather an inaccuracy, very prevalent in such discussions, but one which has led to great confusion, to speak of the immunities of neutrals, as if neutrality conferred privileges. A neutral State is simply one which is not at war with either belligerent, and which is entitled to carry on its usual avocations without being molested by either of the contending Powers, or by anyone else, except in so far as the special privileges accorded to belligerents by the usages of nations may limit its rights, or impose obligations. Save in the exercise of these special privileges, a belligerent is bound to precisely the same duties to all nations as before he quarrelled with his adversary; and if, beyond these limits, he interfere with the property or commerce or subjects of another nation, his responsibility is precisely the same, whether he is at war or at peace with any given State.

Although these propositions are self-evident, they have often been lost sight of from the fact that, until recently, the belli

gerent was strong, and the non-belligerent weak; and the law has been made by the stronger for the stronger. The very name of 'neutral' is of modern growth. In former days, the giants fought; and States of smaller stature were compelled to submit to what the formidable combatants might dictate. But now that non-intervention is the policy of powerful nations, it is essential that these questions should be put on their true footing, and that communities which take no part in the quarrels of their neighbours should resolutely insist on belligerents keeping strictly within the line of the exceptional privileges which their character of belligerents gives them.

These privileges rest on two distinct principles, which are too often confounded-the first arising out of the exigencies of war, and the second out of breaches of neutrality. Although all international law resolves itself into the will of the stronger, and we cannot reduce rules which rest on comity or goodwill to juridical precision, this distinction will be found clearly developed throughout the received international code. There are certain acts which imply on the part of the professed neutral, favour to one side, and unfriendliness to the other. These the belligerent is entitled to complain of, resent, and resist, as in aid of his enemy, and adverse to himself. But there is another class of acts which, although indicating on the part of the neutral no favour or preference for either side, a belligerent is yet entitled to prevent or interfere with. His right to do so arises, not from any indication of hostility on the part of the neutral, but from the benefit to be attained by his enemy.* Of these, the right of search is a good example, which entitles a belligerent to stop, invade, and search a vessel belonging to a nation which has no concern with his disputes, and has done nothing, and has no intention of doing anything, to interfere with them. Under the same category is comprehended the class of belligerent rights restrictive of neutral trade. They proceed solely on the principle of the exigencies of the status of belligerency, not on that of neutral delinquency. On this ground rest all the rules relating to the thorny subject of con-traband of war, by which, to a certain extent, and under certain conditions, a belligerent State may interfere with the commerce of the citizens of a neutral State, without being re

*See Grotius, De jure Belli et Pacis, vol. iii. pp. 1, 5, in the Utrecht edition, 1703. It seems to be assumed in all these disquisitions that it rested with the belligerent to decide the measure of this principle. The idea of a neutral prescribing limits to a belligerent, and enforcing them, is never present.

sponsible to that State for acts which would otherwise be a just cause of war. Commerce with one of two belligerents on the part of a neutral is no breach of neutrality. But the usages of nations have permitted belligerents to intercept munitions of war destined for their enemy, even if conveyed by a neutral hand. It is a privilege of capture, or stoppage, only. If the neutral vessel which conveys the contraband be not intercepted, no right of any kind arises to the belligerent, either against the trader or the State to which he belongs. If the neutral State withhold its protection from the contraband trader, and permit the foreign Power with impunity to seize the property of its citizens, no more can be required of it. Suppose, for instance, that a maritime State goes to war with one which, like Bohemia, has no seaboard-whatever Shakspeare may say to the contrary. If Holland be the other belligerent, we export to Holland all and sundry munitions of war. Has Bohemia a grievance, according to the law of nations? None whatever. We have shown Holland no favour, but only sold to her in open market what we sell every day to France and to Prussia, and what we are ready to sell to Bohemia too, if she will pay our price. We remain neutral, as we were; only Bohemia, having no navy, cannot use the belligerent privilege.

A stronger right is accorded to belligerents in cases of blockade or siege. A citizen of a neutral State attempting to break the blockade, or to carry provisions to a beleaguered fortress, may have his vessel and property treated as lawful prize, although not carrying contraband of war. But the State of which the neutral trader is a citizen incurs no responsibility to the belligerent, who must enforce his own blockade or siege, and rest content with the exceptional remedy which he thus enjoys in the right to obstruct the commerce of a neutral State. It also follows that a contract between the neutral trader and one of two belligerents to supply contraband of war is entirely lawful; and the neutral State is under no obligation to interfere with its execution. These principles are elementary in the code of international rights and obligations. No nation, apart from special treaty, ever proposed to make another responsible for the acts of private merchantmen in running blockades, or carrying ene mies' goods, or dealing in contraband of war. Lord Russell, in writing of the Nassau dispute in 1862, states the doctrine with equal precision and accuracy:

'The doctrine of the United States on this subject has always been the same as that of Great Britain-namely, that neutral Governments

are under no obligation to stop a contraband trade between their subjects and a belligerent Power; and that the only penalty of such a trade is the liability of contraband shipments to be captured on the high seas by either belligerent.'

So Mr. Webster, writing of the Mexican and Texas dispute in 1842, says:

'It is not the practice of nations to undertake to prohibit their own subjects by previous laws from trafficking in contraband of war. Such trade is carried on at the risk of those engaged in it, under the liabilities and penalties prescribed by the law of nations or particular treaties. If it be true, therefore, that citizens of the United States have been engaged in a commerce by which Texas, an enemy of Mexico, has been supplied with arms and munitions of war, the Government of the United States nevertheless was not bound to prevent it, could not have prevented it without a manifest departure from the principles of neutrality, and is in no way answerable for the consequences.'

These opinions are entirely in accordance with the rules laid down by Bynkershoek, perhaps the highest authority on such questions. Speaking of the neutral's freedom of trade, and exceptions from it, he says:

'Quicquid non licet, si amicus (that is the friendly belligerent) deprehendat, optimo jure publicatur: et eo solo absolvitur pœna mittentis amici.' (Quæst. ed. 1732, p. 76.)

And again, in a passage relative to foreign enlistment, he draws in the clearest words the consequence to which we have referred, of the entire lawfulness of contracts to furnish contraband:

:

'Idque in instrumentis bellicis vulgo servamus: ut enim ea ad utrumque amicum non recte vehamus: sine fraude tamen vendimus utrique amico quamvis invicem hosti, et quamvis sciamus alterum contra alterum his in bello esse usurum.' (Quæst. p. 160.)

This principle of the law of nations received a striking illustration in the discussions relative to the Foreign Enlistment Act in 1819. Mr. Canning in his speech in defence of the measure stated in regard to the impending rupture between France and Spain, that by the treaty with Spain the exportation of arms and munitions of war from Great Britain to the Colonies was prohibited, although to Spain herself the prohibition did not extend. But as this would have operated prejudicially to France, the Government, in maintenance of their neutrality, removed the prohibition as to the Colonies by an Order in Council, and thus left the trade in contraband free as far as the Government were concerned.

* Mr. Webster to Mr. Thompson, July 8, 1812. Works, vol. vi. p. 452.

It is no doubt true that Hautefeuille, Bluntschli, and other recent writers are desirous of placing the law in this respect on a different footing, although no civilised State has ever sanctioned their views. The object of this school is to establish the responsibility of the neutral State itself for the trade in articles which are contraband of war; so that the neutral Government shall charge itself with the duty of preventing the traffic, and shall be liable to the belligerent if it fail in doing so. It might with equal truth be argued that it is the duty of a State to prevent smuggling by stopping the export of contraband articles. We should undoubtedly in our past wars have found such a doctrine very convenient; and some may think that with our naval supremacy we should turn it to material account. But we ought to ponder well what the doctrine implies, and whither it tends. It is one thing for a State to prescribe laws for its own subjects, with the view of avoiding foreign complications. It is an entirely different thing to undertake obligations of this kind as an international duty; and the American Case very forcibly suggests to what results such an undertaking may logically be pressed.

There are, unquestionably, in international as in social life certain offices of friendship and good-fellowship which no canon of law prescribes, but which it is reasonable to render, and churlish to refuse, if they can be fulfilled without sensible or serious injury. These stand entirely outside the pale of international right, and may be either secured by treaty, in which case they are binding by special contract, or may be the subject of municipal legislation in aid of the goodwill which suggests them. In regard to the building of ships of war we have now adopted both these expedients: the last by the Foreign Enlistment Act of 1870, and the first by the Treaty of Washington. But our municipal legislation vested no right in any foreign Power; and our declarations of duty in the treaty extend no farther than they are specifically expressed. The law of nations neither lays a neutral under any obligation to prevent trade in contraband, nor does it impose on him any responsibility in regard to it. Let us consider for a moment what the converse of these propositions implies, and how far it is to be carried.

In the first place, it is desirable to trace such propositions to their elementary principles, and reason these out to their logical conclusions. It is not, we think, sufficiently kept in mind how serious a change is implied in regarding trade in contraband of war, not as giving rise to a belligerent privilege, but as implying the breach of neutral obligation. At present a contract between