Exception.

Neutrality may also be modified by antecedent engagements, by which the neutral is bound to one of the parties to the war. Thus the neutral may be bound by treaty, previous to the war, to furnish one of the belligerent parties with a limited succor in money, troops, ships, or munitions of war, or to open his ports to the armed vessels of his ally, with their prizes. The fulfillment of such an obligation does not necessarily forfeit his neutral character, nor render him the enemy of the other belligerent nation, because it does not render him the general associate of its enemy.

How far a neutrality, thus limited, may be tolerated by the opposite belligerent, must often depend more upon considerations of policy than of strict right. Thus, where Denmark, in consequence of a previous treaty of defensive alliance, furnished limited succors in ships and troops to the Empress Catharine II. of Russia, in the war of 1788 against Sweden, the abstract right of the Danish court to remain neutral, except so far as regarded the stipulated succors, was scarcely contested by Sweden and the allied mediating powers. But it is evident, from the history of these transactions, that if the war had continued, the neutrality of Denmark would not have been tolerated by these powers, unless she had withheld from her ally the succors stipulated by the treaty of 1773, or Russia had consented to dispense with its fulfilment.

Dana's Wheaton, pp. 517-518.

The progress of modern times has been towards insisting on entire and impartial neutrality. It is difficult to conceive now of a State being permitted to continue a condition of limited and partial neutrality. A belligerent would be justified in treating any State as an enemy throughout, which rendered any aid to its enemy, whether in pursuance of treaty obligations or not, or which gave or withheld belligerent priveleges unequally.

Note 203, Dana's Wheaton.

it is a violation of neutrality for a neutral State to

* *

supply troops. Woolsey, p. 275.

The general principle that a mercantile act is not a violation of a state neutrality, is pressed too far when it is made to cover the sale of munitions or vessels of war by a State. Trade is not one of the common functions of a government; and an extraordinary motive must be supposed to stimulate an extraordinary act. The nation is exceptionally unfortunate which is forced to get rid of surplus stores precisely at the moment when their purchase is useful to a belligerent.

Hall, p. 621.

In the year 1825, the Swedish government, wishing to reduce its navy, offered six frigates for sale to the government of Spain. The latter refused to buy, and three of them were then sold to an English mercantile firm, who, as it afterwards appeared, were probably acting on behalf of Mexico, then in revolt against the mother country. In any case it became known before the vessels were handed over that a further sale had been or was about to be effected to the recog

nised Mexican agent in England; and the Swedish government, listening to the warmly expressed complaints of Spain, rescinded the contract at some monetary loss to itself, notwithstanding that the ships had been sold in ignorance of their ultimate destination. During the war between France and Prussia, the government of the United States seems to have taken an opposite view of its duty; but there can be no question that Sweden, in yielding, chose the better part. The vendor of munitions of war in large quantities during the existence of hostilities knows perfectly well that the purchaser must intend them for the use of one of the belligerents, and a neutral government is too strictly bound to hold aloof from the quarrel to be allowed to seek safety in the quibble that the precise destination of the articles bought has not been disclosed.

Hall, p. 621, 622.

In January of the present year the Chilean Congress is reported to have refused to accept a very high price offered by an American firm for six war ships, doubtless believing that the ships were destined for either Russia or Japan. A new, though cognate, question has, however, been raised by the sale of certain German liners to Russia, which forthwith, after rechristening, commissioned them as armed cruisers. If these vessels were, as is alleged, subsidized by their own Government, with a view to their employment by that Government in case of need, it has been urged with much force that they practically form part of the reserve of the imperial German navy, and that, therefore, Germany being neutral, they could not be lawfully sold to a belligerent.

Holland. Neutral Duties in a Maritime War, Proceedings of the British Academy, II, 2.

It is a grave offense against the law of nations for a neutral government to sell a man-of-war to a belligerent.

Moore's Digest, vol. vii, p. 868; Mr. Day, Secretary of State, to Mr. Hay, ambassador to England, June 25, 1898; Mr. Moore, Acting Secretary of State, to Mr. Hay, June 26, 1898.

It was stated that the Ecuadorean Government had suspended the Ecuadorean consul-general at New York from the performance of his official functions till he should prove himself innocent of certain charges brought against him in connection with the transfer, during the war between China and Japan, of the Chilean man-of-war Esmeralda to Japan in an Ecuadorean port and under the Ecuadorean flag.

Moore's Digest, vol. vii, p. 871; Mr. Uhl, Acting Secretary of State, to the governor of New York, February 5, 1895.

And to this it must be added that since a well governed state does not perform commercial acts except incidentally to the performance of its public duties, as in the sale of old stores, abstinence from such acts is not such a burden to it as any unfairly demanded abstinence from them would be to private persons to whom they are their living. It would therefore be highly objectionable, as an unfriendly proceeding, that a public authority should sell arms or ammunition, or lend money, to a belligerent, even when such sale or loan was within

its usual course, and could not be regarded as a participation in a specific operation of war.

Westlake, vol. 2, p. 206.

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*

Another duty laid on neutral states is to abstain from giving or selling instruments and munitions of war, to either belligerent. With regard to the gift or sale of war material the duty of a neutral state is equally clear. The Second Hague Conference summarized accepted law in the words, "The supply in any manner, directly or indirectly, by a neutral power to a belligerent power, of warships, ammunition, or war material of any kind whatever, is forbidden." But it is to be noted that, when two powers are at peace, either is quite free to sell a war-ship to the other. Thus the purchase at the end of 1903, by Japan from Argentina of the two powerful cruisers afterwards called the Nisshin and the Kasuga was perfectly legal, because the transaction was completed before the outbreak of the war with Russia early in 1904. But had hostilities commenced before the negotiations were finished, the Argentine government would have been bound to refuse delivery till after the conclusion of peace.

Lawrence, 631-632.

The question whether a neutral government is under an obligation to discontinue public sales by auction of old warlike stores because belligerent agents are likely to purchase them, was raised in 1870, when France bought largely at American sales during her war with Germany. A committee of the United States Senate reported in favor of the action of the executive. But the subsequent growth of opinion has been in the direction of greater carefulness, and in all probability a different course would be pursued were the circumstances to recur. Indeed, the wording of the Hague Article quoted above seems decisive. It forbids the supply of such things as we are considering "indirectly" as well as "directly"; and there can be no doubt that a large proportion of the cannon and rifles sent from New York to France in 1870 came indirectly through the hands of agents from the stores of the American government.

Lawrence, p. 632.

However, the question is controversial as to whether a neutral State, which in time of peace concluded a treaty with one of the belligerents to furnish him in case of war with a limited number of troops, would violate its neutrality by fulfilling its treaty obligation. Several writers have answered the question in the negative, and there is no doubt that during the eighteenth century such cases happened. But no case happened during the nineteenth century, and there ought to be no doubt that nowadays the answer must be in the affirmative, since a qualified neutrality is no longer admissible. Oppenheim, vol. 2, p. 389.

As regards furnishing men-of-war to belligerents, the question arose during the Russo-Japanese War as to whether a neutral violates his duty of impartiality by not preventing his national steamship companies from selling to a belligerent such of their liners as are destined in case of war to be incorporated as cruisers in the national navy. The question was discussed on account of the sale to Russia

!

of the Augusta Victoria and the Kaiserin Maria Theresa by the North German Lloyd, and the Fürst Bismarck and the Columbia by the Hamburg-American Line, vessels which were at once enrolled in the Russian Navy as second-class cruisers, re-named as the Kuban, Ural, Don, and Terek. Had these vessels, according to an arrangement with the German Government, really been auxiliary cruisers to the German Navy, and had the German Government given its consent to the transaction, a violation of neutrality would have been committed by Germany. But the German Press maintained that these vessels had not been auxiliary cruisers to the Navy, and Japan did not lodge a protest with Germany on account of the sale. If these liners were not auxiliary cruisers to the German Navy, their sale to Russia was a legitimate sale of articles of contraband.

Oppenheim, vol. 2, p. 389-390.

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The duty of impartiality must prevent a neutral from supplying belligerents with arms, ammunition, vessels, and military provisions. And it matters not whether such supply takes place for money or gratuitously. This is a settled rule so far as direct transactions regarding such supply between belligerents and neutrals are concerned. The case is different where a neutral does not directly and knowingly deal with a belligerent, although he may, or ought to, be aware that he is indirectly supplying a belligerent. Different States have during neutrality taken up different attitudes regarding such cases. On the other hand, the Government of the United States of America, in pursuance of an Act passed by Copgress in 1868 for the sale of arms which the end of the Civil War had rendered superfluous, sold in 1870, notwithstanding the FrancoGerman War, thousands of arms and other war material which were shipped to France. This attitude of the United States is now generally condemned, and article 6 of Convention XIII. may be quoted against a repetition of such a practice on the part of a neutral State. Oppenheim, vol. 2, p. 426-427.

* * *

A neutral State can support no belligerent by furnishing military resources of any kind whatsoever.

German War Book, p. 191.

Article 6, Hague Convention XIII, 1907, is substantially identical with section 126, Austro-Hungarian Manual, 1913.

money.

*

LOANS OF MONEY.

it is a violation of neutrality for a neutral state to lend

Woolsey. International Law, 6th ed., p. 275.

Since money is truly described as the sinews of war, and it is no part of the business of a state to deal in money, its loan by a neutral state to a belligerent would necessarily have a special character, not only as aiding the latter in fact but also as disclosing an intent to aid him in his war. It would therefore be an unneutral act. If by the law of the neutral state the consent of the executive is required to loans by individuals to foreign powers, or if the executive is in the habit of practically controlling such operations by the exercise of its

influence, a loan by individuals to a belligerent which is allowed to slip through the meshes will have an international character not distinguishable from a loan by the state. But in countries where, as in England, the loan market is free in time of peace, the question arises whether the state is bound to interfere with it in time of war by a prohibition to lend to belligerents. In such a country loans to foreign states are not political but commercial acts, falling within the daily habits of persons engaged in business, not implying any intent by those persons as to the use to be made of the money by the governments assisted, and such that to prevent them just when the greatest profit is likely to be obtained from them would be felt to be an onerous interposition. They do not constitute a participation in any specific operation of war, nor is the branch of business to which they belong reserved for public action by the general understanding of the civilised world. Tried therefore by the tests which have been suggested as imposed by the theory of neutrality, loans by neutral individuals to belligerent states must be pronounced legitimate, and such they are in fact held to be.

Westlake, vol. 2, pp. 251, 252.

With reference to the loan of money which was solicited from the United States by the French Government, in 1798, through the American envoys in Paris, the United States took the ground that such a loan would be a violation of neutrality. This is cited with approval by Chancellor Kent.

Moore's Digest, vol. vii, p. 978; Mr. Pickering, Secretary of State, to Messrs. Pinckney, Marshall, and Gerry, March 23, 1798, Am. State Papers, For. Rel. II, 200.

In 1816 Colonel Devereux, commercial agent of the United States at Buenos Ayres, presented a memorial to the Government at that place offering his services to procure for its use a loan in the United States under the guarantee of the United States Government. His proposition was sent to the Congress at Tucuman, and, after receiving its sanction, was agreed to by the supreme director and assisting members of the Congress at Buenos Ayres. The action of Colonel Devereux, though his intentions were not questioned, was disavowed, and Mr. Worthington, the agent of the United States in South America, was instructed to inform the Government of Buenos Ayres that the refusal of the United States to carry out the arrangement which was sought to be made "must be the result of its existing laws and duties in relation to the civil war between Spain and the Spanish American colonies."

Moore's Digest, vol. vii, pp. 978, 979; Mr. Brent, Acting Secretary of State, to Mr. Worthington, April 21, 1817, 2 MS. Desp. to Consuls, 24.

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