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Thereupon it became known, by the admission of the British Gorernment itself, that the attempt to draw recruits from this country originated with it, or at least had its approval and sanction; but it also appeared that the public agents engaged in it had "stringent instructions " not to violate the municipal law of the United States.
It is difficult to understand how it should have been supposed that troops could be raised here by Great Britain without violation of the municipal law. The unmistakable object of the law was to prevent every such act which if performed must be either in violation of the law or in studied evasion of it; and in either alternative, the act done would be alike injurious to the sovereignty of the United States.
In the meantime the matter acquired additional importance by the recruitments in the United States not being discontinued, and the disclosure of the fact that they were prosecuted upon a systematic plan devised by official authority; that recruiting rendezvous had been opened ir. our principal cities and depots for the reception of recruits established on our frontier, and the whole business conducted under the supervision and by the regular cooperation of British officers, civil and military, some in the North American prorinces and some in the United States. The complicity of those officers in an undertaking which could only be accomplished by defying our laws, throwing suspicion over our attitude of neutrality, and disregarding our territorial rights is conclusively proved by the eridence elicited on the trial of such of their agents as have been apprehended and convicted. Some of the officers thus implicated are of high oflicial position, and many of them beyond our jurisdiction, so that legal proceedings could not reach the source of the mischief.
These considerations, and the fact that the cause of complaint was not a mere casual occurrence, but a deliberate design, entered upon with full knowledge of our laws and national policy and conducted by responsible public functionaries, impelled me to present the case to the British Government, in order to secure not only a cessation of the wrong, but its reparation. The subject is still under discussion, the result of which will be communicated to you in due time.
Annal message of President Pierce, December 3, 18:5), Richardson's Jes
sages of the President, 1, 3:32. It was held by the Attorney General of the United States in 1855 that the undertaking of a belligerent to enlist troops of land or sea in a neutral state without the previous consent of the latter is a hostile attack on its national sovereignty and that the act of Congress prohibiting foreign enlistments is a matter of domestic or municipal right as to which foreign governments have no right to inquire, the international offense being independent of the question of the existence of a prohibitory act of Congress.
ī Op. Atty. Gen., 367. Also the organization of troops and the assembling of “ Freelances“ on the territory of neutral States is not allowed by the law of nations.
German War Book, p. 189. Article 4, Hagne Convention V', 1907, is substantially identical with section 231, Austro-Hungarian Manual, 1913.
MOVEMENT OF TROOPS OR CONVOY ACROSS NEUTRAL TERRITORI-NEUTRAL PROHIBITED
A neutral Power must not allow [belligerents to move troops
or convoys of either munitions of war or supplies across its territory.]—Ilague Convention l', 1907, drticle is.
When the war between Great Britain and the Transvaal began, free passage was given by Portugal to British troops through Beira to Rhodesia. This permission was based on the Anglo-Portuguese treaty of June 11, 1891. By Art. XII. of this treaty Portugal “engages to permit and to facilitate transit for all persons and goods of every description over the waterways of the Zambesi, the Shire, the Pungive, the Busi, the Limpopo, the Sabi, and their tributaries, and also over the landways which supply means of communication where these rivers are not navigable." By Art. XIV. Portugal agrees “to grant absolute freedom of passage between the British sphere of influence and Pungive Bay for all merchandise of every description, and to give the necessary facilities for the improvement of the means of communication," and also “ to construct a railway between Pungive and the British sphere."
Moore's Digest, rol. vii, pp. 939, 940 : 83 Br. and For. State Papers, 189,
1891, 27, 35, 36, 38: Hertslet's ('ommercial Treaties, xix, 777.
The right of a refusal of a pass over neutral territory to the troops of a belligerent power depends more upon the inconvenience falling on the neutral state, than on any injustice committed to the third party, who is to be affected by the permission or refusal. It is no ground of complaint against the intermediate neutral state if it grants a passage to belligerent troops, though inconvenience may thereby ensue to the adverse belligerent. It is a matter resting in the sound discretion of the neutral power, who may grant or withhold the permission, without any breach of neutrality.
Kent, vol. 1. p. 126–127. Contra.
This exemption [of neutral territory from hostilities] extends to the passage of an army
* through the limits of the territorial jurisdiction, which can hardly be considered an innocent passage, such as one nation has a right to demand from another; and, even if it were such an innocent passage, is one of those imperfect rights, the exercise of which depends upon the consent of the proprietor, and which cannot be compelled against his will. It may be granted or withheld, at the discretion of the neutral State; but its
being granted is no ground of complaint on the part of the other belligerent power, provided the same privilege is granted to him. unless there be sufficient reasons for withholding it.
Dana's Wheaton, p. 520. Modern writers, except some of the German school, express strongly the opinion, that for a neutral to permit an army of a belligerent to pass over its territory for a purpose of war, would be so far an abandonment of neutrality. A special license in a particular case to one belligerent would not be justified by an offer to grant a special license in a like case to the other; for the exigency, the means of using the license, and the advantages to be gained by it, are too varying to insure equality: and it can hardly be supposed that a neutral will grant a general license of passage to both parties, at their option.
Vote 205, Dana's Wheaton, P. 720. It was contended by some of the ancient publicists that a belligerent had an absolute right of passage for his troops through neutral territory, and that the neutral could not refuse it without injustice. But Vattel contends that such innocent passage through neutral territory may be granted or refused by the neutral power, at its discretion; that, if refused, the applicant has no cause of complaint, and if granted, the opposite party can only claim the same privilege for his own troops. Many modern writers, and the German publicists
. generally, have pronoimced in favor of the views of Vattel. But Heffter, Hautefeuille, Manning, and others, express the opinion, that to grant such passage is a violation of neutral duty, and a tfords just cause of complaint, if not of war, to the other belligerent. This opinion seems most consonant with the general principles of neutrality.
Halleck, pp. 517-518. I violation of neutrality is not limited to acts of positive hostility.
if it (a neutral state] neglect or refuse to maintain the inviolability of its territory;
it violates its duties toward the belligerent who is injured by such act or neglect, and is justly chargeable with hostility. Such conduct furnishes good cause for complaint, and, if persisted in, may become just cause of war.
Hallerk, p. 629. It was formerly thought that the neutral might allow the transit of belligerent troops through his territory * if he granted the same to both sides. All now admit that the neutral ought to refuse any of these privileges, and must be the sole judge in the case.
Woolsey, pp. 278, 279. During the eighteenth century it was an undisputed doctrine that a neutral state might grant a passage through its territory to a belligerent army, and that the concession formed no ground of complaint on the part of the other belligerent. The earlier writers of this century, and Sir R. Phillimore more lately, preserve this view, only so far modifying it as to insist with greater strength that the privilege, if accorded, shall be offered impartially to both belligerents. But the most recent authors assert a contrary opinion; no direct attempt has been made since 1815 to take advantage of the asserted right; and the permission granted to the allies in that year to cross Switzerland in order to invade France was extorted from the Federal Council under circumstances which would in any case rob the precedent of authority. The same country in 1870 denied a passage to bodies of Alsatians, enlisted for the French army, but travelling without arms or uniforms; and there can be no question that existing opinion would imperatively forbid any renewed laxity of conduct in this respect on the part of neutral countries. Passage for the sole and obvious purpose of attack is clearly forbidden. The grant of permission is an act done by the state with the express object of furthering a warlike end, and is in its nature an interference in the war. It is therefore a non-neutral act; and the only excuse which can be accepted for its performance would be the impossible one that it is equally advantageous to, and desired by, both belligerents at once.
Hall, pp. 623, 624.
A broad distinction is however to be drawn between a grant of passage for a specific purpose in time of war, and a grant of passage made in time of peace to enable a state to reach an outlying portion of its territory, or to enable it to reach its possession with more ease than would otherwise be practicable. In the former case the grant, as has been seen, is essentially un-neutral; in the latter it is essentially colourless when made; and if by the occurrence of a war which happens to touch the outlying territory its effects become injurious to one of the two belligerents, the result is an accidental and possibly an unforeseen one. It is difficult to separate the harmless use of the neutral territory for mere garrison purposes from its use for belligerent purposes; and if the former use has been habitual, and especially if it has been secured by treaty, it probably could not be fairly held that the neutral state is guilty of un-neutral conduct in allowing the passage of troops during war. Its behaviour would however require to be judged by the circumstances of the case; a hard and fast line could scarcely be drawn; and while a rigid limitation of the force permitted to pass to the amount of the ordinary reliefs might be the equivalent of handing over the detached territory to the enemy, the grant of passage to greatly more than the usual numbers might be as definitely un-neutral an act as a grant made solely for the purposes of the war.
Hall, pp. 624, 625.
Thus, a belligerent must not be allowed to march his troops across neutral territory, and if any of them enter it, whether of free choice or in flight from an enemy, they must be interned. That they should use the territory by recovering their strength in it, or by waiting in it for a favourable opportunity of returning to the theatre of war, or to their own country where they might be available for war, would clearly be to bring the neutral soil within the range of military operations. There can be no question about it of equal permission to both belligerents: it must be permitted to neither.
Westlake, vol. 2, p. 233.
Among the uses of its territory a neutral is bound to prevent must be reckoned
the passage of the land forces of a belligerent across any portion of its soil.
Lawrence, p. 635.
However, just as in the case of furnishing troops so in the case of passage, it is a moot point whether passage of troops can be granted without thereby violating the duty of impartiality incumbent upon a neutral, in case a neutral is required to grant it in consequence of an existing State-servitude or of a treaty previous to the war. There ought to be no doubt that, since nowadays a qualified neutrality is no longer admissible, the question must be answered in the negative.
Oppenheim, vol. 2, p. 392. In contradistinction to the practice of the eighteenth century, it is now generally recognized that a violation of the duty of impartiality is involved when a neutral allows a belligerent the passage of troops or the transport of war material over his territory. And it matters not whether a neutral gives such permission to one of the belligerents only, or to both alike. Oppenheim, vol. 2, p. 391.
when France during the Franco-German war organized an office in Basle for the purpose of sending bodies of Alsatian volunteers through Switzerland to the South of France, Switzerland correctly prohibited this on account of the fact that this official organisation of the passage of whole bodies of volunteers through her neutral territory was more or less equal to a passage of troops.
Oppenheim, vol 2, p. 399.
The Government of the neutral State has therefore, once War is declared, to prevent the subjects of both parties from marching through it.
German War Book. pp. 188, 189.
Prisoners of war.
The passage or transport of prisoners of war through neutral territory is, on the other hand, not to be allowed, since this would be an open favoring of the belligerent who happened to be in a position to make prisoners of war on a large scale, while his own railways, water highways, and other means of transport remained free for exclusively military purposes.
German War Book, p. 196.