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to the second will be devoted the remainder of this chapter. Now there can be no doubt that if a nation professing neutrality, and either by Proclamation or by municipal regulations, prohibiting its subjects from enlisting in the service of one or other of the belligerents, or aiding either of them by equipments of armed vessels, does knowingly and wilfully allow what it professes to prohibit, “if it does not act with due diligence or show good faith and honesty in the maintenance of the neutrality it proclaims," it is guilty of partial and unneutral conduct, which will render it liable to be treated by the offended belligerents as an enemy, and for which in honour it is bound, where it escapes the direct consequences of that hostile attitude, to make compensation for the injuries it has thus caused. But the case is different where such a nation has faithfully and conscientiously performed its obligations as a neutral. It may, and frequently will be, that in spite of Proclamation, in spite of Statute, its subjects, for the sake of the great gains thereby resulting, will use every artifice to evade the provisions thus published. It is as impossible for a government entirely to defeat their efforts, as for the legislature to prevent its most carefully drawn enactment from being evaded. If, therefore, when the government "has done all in its power to prevent and to punish'," its honest efforts to maintain neutrality are set at nought, to hold it liable for the deceits and frauds of its subjects would be most burdensome and dangerous, would render a maritime nation (to use Earl Russell's words), whose people occupy themselves in constructing ships and cannon and arms, responsible for the whole damages of a war in which that nation had no part, and would, as the well considered and approved language of the United States, both diplomatic and judicial, shows, be introducing a doctrine new to politics, and new to International Jurisprudence. All that a neutral nation possessed of a Foreign Enlistment Act has to do is to draw the public attention of its subjects to its

1 Earl Russell's Letter to Mr Adams, May 4, 1865.

provisions, to warn them of the consequences of a breach thereof, itself to put the law in force on sufficient proof of its intended infraction, either by detaining and seizing the vessels, whose owners are obnoxious to the provisions of the statute, or by exacting a bond, or adopting whatever other kind of precaution may be established, and to give every facility for prosecuting and punishing offenders against the Statute. If this has been the course of proceedings on the part of the neutral state, if its attitude and conduct have in this way been irreproachable, then in the diplomatic and judicial language of the United States, so aptly cited in the correspondence above referred to, and so ably expressed, the neutral state may thus reply to demands for compensation. "This government having used all the means in its power to prevent the fitting out and arming of vessels in their ports to cruise against any nation with whom they are at peace, and having faithfully carried into execution the laws enacted to preserve inviolate its neutral and pacific obligations, cannot consider itself bound to indemnify individual foreigners for losses by captures over which it has neither control nor jurisdiction. For such events no nation can in principle, nor does in practice, hold itself responsible. A decisive reason for this, if there were no other, is the inability to provide a tribunal before which the facts can be proved', as in the case of two steam rams in the Mersey, and of another called the Pampero, in the Clyde"."

1 Despatch from Mr Adams to the Portuguese minister at Washington, March 14, 1818. For the practice of the United States Courts see Mr Justice Story's judgment in the case of the Aimstad de Rues, 5 Wheaton, 388, to the effect that a neutral state is not bound to do more than restore property captured by cruisers in fraud of the Foreign Enlistment if found within its ports. See also the Alerta, 3 Curtis's Rep. p. 382.

2 In the Supplement to the London Gazette of Friday, Nov. 10th, 1865, appeared a correspondence between Mr Adams and Earl Russell, in the last letter of which his lordship enumerates all the cases in which the British Government had by detention of vessels and prosecutions of individuals endeavoured to maintain its neutrality; according to that document proceedings were taken against five vessels and eight persons were prosecuted under the Foreign Enlistment Act, six of whom were convicted.

On the 30th Nov. 1865, Captain Corbett was indicted and tried for an alleged infringement of the Foreign Enlistment Act, by engaging men at Blackwall for a vessel called the Sea King, in which he sailed to Madeira, where he was joined by another vessel called the Laurel. The two went in company to a desert island, and there a large quantity of guns was loaded on board the Sea King, which soon afterwards hoisted the Confederate flag, was called the Shenandoah, and became a cruiser in the Confederate service, commanded by an American officer; Captain Waddell. The main question at the trial being, whether the defendant really did attempt in any place to induce the men to enlist, or whether, as was contended by his counsel, the real attempts were made by the American officers who joined the Shenandoah at the desert island above-mentioned; and there being considerable doubt as to the language used by Captain Corbett in his address to the crew at the time of the transfer, and as to the fact of its being uttered not by him, but by Captain Waddell. The Jury gave him the benefit of the doubt, and returned a verdict of Not Guilty, several points of law being reserved for the consideration of the Court above']

1 See Times Newspaper, Nov. 30th, Dec. 1st and 2nd, where the case is reported at full length.

CHAPTER VIII.

OF THE GENERAL RIGHTS AND DUTIES OF NEUTRAL

NATIONS'.

THE rights and duties which belong to a state of neutrality form a very interesting title in the code of international law. In the United States they ought beyond all doubt to be objects of particular study, because whilst it is the true policy of that country to cherish a spirit of peace, so it has ever been the avowed aim of its government to keep itself free from those political connexions which would tend to draw it into the vortex of European contests. [Nor should they be less regarded with attention and respect in Europe where, if on the one hand owing to the complications arising out of family compacts, political confederations or alliances for mutual aid and defence many of the powers find no little difficulty in keeping out of hostilities when war breaks out; on the other, in case they do succeed in standing aloof therefrom and maintaining a neutral attitude, they experience a fact which war soon makes patent, that their neutrality is by the belligerents con

1 On the general principles connected with neutrality and neutrals see Heffter, Liv. II. ch. iii. §§ 144-154, where most of the leading continental authorities are cited. Ortolan, Règles Internationales et Diss. de la Mer, Liv. III. ch. iv. Wheaton, Vol. II. Part IV. ch. iii. §§ 1-5. Halleck On International Law, ch. xxvi. §§ 1-4. Phillimore, Vol. III. Twiss On the Law of Nations, Vol. II. ch. xi.

2 Heffter, Liv. II. ch. iii. § 145.

sidered as a stumblingblock in their paths, and that these watch with the most jealous suspicion the conduct of all who profess neutrality, contest with energy the rights they claim, and insist upon the strictest attention to the obligations by which as neutrals they are bound. A correct appreciation therefore of the rights and duties attaching to a state of neutrality is a matter of primary importance, in the upholding of which both neutrals and belligerents are equally concerned.] For whilst every nation that maintains a firm and scrupulously impartial neutrality, and commands the respect of all other nations by its prudence, justice, and good faith, has the best chance to preserve unimpaired the blessings of its commerce, the freedom of its institutions, and the prosperity of its resources; so belligerents are interested in the support of the just rights of neutrals, for the intercourse which is kept up by means of their commerce contributes greatly to mitigate the evils of war. The public law of Europe has established the principle, that, in time of war, countries not parties to the war, nor interposing in it, shall not be materially affected by its action; but shall be permitted to carry on their accustomed trade, under the few necessary restrictions which we shall hereafter consider1.

must be

It belongs not to a common friend to judge between Neutrals the belligerent parties, or to determine the question of impartial. right between them. The neutral is not to favour one of them to the detriment of the other; and it is an essential character of neutrality, to furnish no aids to one party, which the neutral is not equally ready to furnish to the other. A nation which would be admitted to the privileges of neutrality, must perform the duties it enjoins.

1 Vattel, Bk. III. ch. vii. § 104. Wheaton's Elements, Vol. II. Pt. IV. ch. iii. § 1. De Cussy, Droit Maritime, Liv. I. tit. iii. § 9, and Opinions of Attorneys-General (American), Vol. II. p. 87.

2 Bynk. Q. J. P. Lib. I. ch. ix. Burlamaqui, Vol. II. Pt. IV. c. v. §§ 16,

17.

3 Manning's Law of Nations, p. 180.

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