has observed, "If a Sovereign has shown more favour to one side than to the other-if he has excluded the ships of one of the Belligerents from his ports and hospitably received those of the other-he cannot be considered as acting with the necessary impartiality. I do not think a country, showing such an invidious distinction, entitled to claims in the character of a Neutral State. The high privileges of a Neutral are forfeited by the abandonment of that perfect indifference between the contending parties in which the essence of Neutrality consists. It would seem then that a Belligerent Power, as such, has no right to call upon a Neutral Power to exercise its rights of Sovereignty within its own Territory in any other manner than in time of peace, provided the Neutral Power is acting with impartiality towards the Belligerent Power and its adversary. It is a less questionable act therefore for a Neutral Power to allow its markets to be open equally to the Subjects of both Belligerent Powers, than to prohibit to both parties the exportation of provisions, or ammunition, or arms, or ships, or any other article available for Belligerent purposes. Nation may indeed, in appearance, act with impartiality in issuing and enforcing such prohibitions, whilst in substance it may be favouring the one party more than the other. For instance, a war may arise between two countries, one of which in time of peace exports arms and imports provisions, whilst the other exports provisions and imports arms; in other words, between two countries, one of which is highly advanced in manufacturing industry, whilst the other is strictly agricultural. It is obvious that a Nation will not act with impartiality towards both Belligerents if it should prohibit the exportation of arms and allow the exportation of provisions. Again, one Belligerent may be in want of ships, and the

A

other Belligerent may be in want of horses. It will evidently not be consistent with a State of Neutrality for a State to allow a free commerce to both Belligerents in horses within its ports, and to prohibit a free commerce in ships, if her subjects in time of peace are accustomed to trade freely with foreign merchants in ships and horses. On the other hand, if a State does not impose any restraints upon commerce within her Territory during a period of warfare between other Powers, but affords to the Subjects of either Belligerent free access to her markets, and if it should happen that the one Belligerent derives from commerce in her ports more advantages than the other Belligerent, she may justly allege, that if her continuing to allow free access to her markets to the Subjects of both Belligerent parties equally as to the Subjects of other Nations operates more beneficially to one of the Belligerent parties than to the other, it is by reason of the alteration of their mutual relations towards each other, over which she has no control, and not by reason of any alteration in her conduct towards either of them. Any change which a Nation may make upon war breaking out between other Nations, by interdicting the commerce of either of them in her ports, may expose the good faith of a Nation to question, whenever the change operates more prejudicially against the one than against the other of the two Belligerent parties. On the other hand, the maintenance of an order of things which existed prior to the war, against which no complaint was raised in time of peace by any other Nation, cannot expose a neutral Nation to any imputation of bad faith towards either of two Belligerent parties.

$231.

The United States of America," as observed in a judgment of the Supreme Court in

of the

States of

tral Power,

certain

trade.

66

181719, instead of opening their ports to all the contending parties, when at peace themselves (as may be done, if not prevented by antecedent Treaties), have always thought it the wisest and safest course to interdict them all from fitting out or furnishing

vessels of war within their limits, and to punish The Policy those who may contribute to such equipments." The United United States first adopted this policy, as a Neutral America, State, in 179420, when M. Genet, the French Minister as a Neu- at Washington, was endeavouring to work upon the to interdict sympathies of the States for the purpose of involving branches of them in war with Great Britain, and they have persevered in the same policy down to the present day. Thus the Act of Congress of 1818, although it does not prohibit armed vessels fitted out by citizens of the United States from sailing out of their ports, requires the owners to give security that such vessels shall not be employed by them to commit hostilities against foreign Powers at peace with the United States. Accordingly, when Denmark remonstrated against the Government of the United States allowing a steam vessel of war, which had been purchased by the Government of the German Empire, at that time engaged in war against Denmark, to leave the ports of the United States, the United States Government refused to permit the vessel to quit its waters, until a bond had been executed in compliance with the Act of Congress of 1818, that the vessel should not be employed to cruise or commit hostilities against any State, with which the United States were at peace". On the other hand, "the Laws of the United States do not forbid their citizens to sell

19 The Estrella, 4 Wheaton, P. 448.

21 Annuaire des Deux Mondes, 1852-53, p. 485. Lawrence's

20 Waite's American State Pa- Wheaton, second annotated edipers, Vol. I. p. 89.

tion, p. 95. Editor's note.

to either of the Belligerent Powers articles Contraband of war, or to take munitions of war or soldiers on board their private ships for transportation; and although, in so doing, the individual citizen exposes his property or person to some of the hazards of war, his acts do not involve any breach of National Neutrality, nor of themselves implicate the Government." Such was the purport of the message delivered by the President of the United States on 31 December 185422, and in the following month of October 1855 an Official Declaration on the same subject was issued from the office of the AttorneyGeneral, the legal organ of the Government of the United States 23. "It is no departure from Neutrality," is the language of this Declaration, " for the citizens of a Neutral State to sell to belligerents gunpowder, arms, munitions, or any other articles of merchandise Contraband of war, or for the merchant ships of a Neutral State to transport the troops or military munitions of either Belligerent. Such commerce is perfectly lawful in itself, subject always to the chances of hostile capture by the other Belligerent; and in the present war, supplies of gunpowder or other articles Contraband of war, and military transportation, have been furnished of Lawful Right by citizens of the United States, to each of the Belligerents, but more especially and in larger proportions to Great Britain and to France." To the same effect President Pierce had observed, in the message above cited, that "during the progress of the present war in Europe our citizens have, without National responsibility therefore, sold gunpowder and arms to all buyers, regardless of the destination of those articles. Our merchantmen have been, and

22

Message of President Pierce. Annuaire Hist. Universel, 1855, App. p. 211.

23 Sammlung Officieller Actenstücke, &c., Hamburg, 1855. Neue Folge, II. p. 22.

Trade, un

less inter

dicted, not

of the So

of a Neu

tral State.

still continue to be, largely employed by Great Britain and France in transporting troops, provisions, and munitions of war, to the principal seat of military operations, and in bringing home the sick and wounded soldiers; but such use of our mercantile marine is not interdicted either by the International, or by our Municipal Law, and therefore does not compromise our Neutral relations with Russia."

§ 232. A distinction must always be kept in mind between acts of civil life within the Territory of a a violation Neutral Nation which violate its Right of Sovereignty, vereignty and acts which do not violate it. No transaction of commerce between Belligerent merchants or between a Belligerent merchant and a Neutral merchant, entered into or completed within Neutral Territory, is an offence against the Sovereignty of the Neutral Nation, unless it should be forbidden by its Territorial Law. All offences against the Law of a State committed by any person whatsoever within its Territory are offences læsæ majestatis, and may be punished by the State as such, unless the offender be the subject of a foreign Power, with which there are Treaty-engage ments in restraint of the independent action of the State in such matters. A particular transaction of commerce equally with any other act of civil life may be forbidden by the Law of a State, as, for instance, the sale of a freeman into slavery, and all parties within the Territory of that State, who should be engaged in such a transaction of commerce, would be guilty of an offence against its Sovereign Power. It is immaterial with regard to the binding force of the Law of a State whether there is a state of War beyond its Territory or not, and whether the parties within its Territory, who may infringe its Law, are Subjects of a Belligerent or a Neutral State. For instance, to enlist for military service the Subjects of an Independent