« ПредыдущаяПродолжить »
though he does not use this term.3 It must be observed that in the first class, which we call "absolute contraband," he includes munitions of war. It must also be observed that the restriction that he places upon the furnishing to a belligerent of articles in this class, is their liability of capture by the belligerent. He thus recognizes the fact that the prevention of the furnishing of munitions of war is a belligerent right and not a neutral duty.
It is to Vattel, however, that we are indebted for the clearest and most explicit statement of the law of neutrality as it existed in the eighteenth century. His book on the Law of Nations was published in 1758. The chief defect in his conception of neutrality was in the approval of a general custom of his time to the effect that a neutral might afford pecuniary or military assistance to a belligerent, provided it was in accordance with a previous treaty stipulation —a rule which formerly went under the name of "imperfect neutrality," but which no longer exists. For our present purpose the most significant part of Vattel's chapter on neutrality is that which discusses the status of neutral trade in its relation to belligerent Powers. In the first place, he holds that neutrals are under no obligation to renounce their commerce, even in the matter of furnishing a belligerent with war supplies, provided they are willing to furnish similar supplies to the other belligerent.5 In the next place, he calls attention to the fact that the carriage of war supplies to one belligerent exposes the owner of the goods to the risk of having his commodities captured by the other belligerent, who has a right to make
3 "But the question often arises, what is lawful [to be captured] against those who are not our enemies, or who do not allow themselves to be so called, but who provide our enemies with supplies of various kinds. In the first place,
* * *
we must make a distinction as to the things supplied. For there are some articles of supply, which are useful in war only, as arms; others are of no use in war, but are only luxuries; others which are useful in war and out of war, as money, provisions, ships and their furniture."—Ibid, Bk. III, ch. 1, 5.
4 Vattel, Bk. III, ch. VII, § 105.
5 "It is certain that, as they [neutrals] have no part in my quarrel, they are under no obligation to renounce their commerce for the sake of avoiding to supply my enemy with the means of carrying on the war against me. Should they affect to refuse selling me a single article, while at the same time they take pains to convey an abundant supply to my enemy, with the evident intention to favor him-such partial conduct would exclude them from the neutrality they enjoyed."—Ibid, Bk. III, ch. VII, § 111.
such a capture. Again, after defining contraband goods as "commodities particularly useful in war," such as arms, ammunition, etc., he states that the means of preventing their transportation to a belligerent to be the confiscation of such contraband goods when captured by the enemy, and asserts that the owner by assuming this risk, thereby forfeits the protection of his own government." Especial attention is called to the fact that Vattel is careful to discriminate between the liability of neutral subjects and the responsibility of neutral governments in the matter of carrying contraband goods, showing, on the one hand, that the confiscation of such goods can give no offense to neutral governments; and, on the other hand, that neutral governments are not held responsible for the carrying of contraband goods by their subjects. In the whole of Vattel's treatise there is not a hint that the prevention of the traffic in contraband goods is a duty on the part of a neutral state, but is a matter that affects solely the interests of a belligerent, to whom is given the right of confiscation.
It was the purpose of the publicists of the eighteenth century to pro
6 "When I have notified to them [that is, neutrals] my declaration of war against such or such a nation, if they afterwards expose themselves to risk in supplying her with things which serve to carry on war, they will have no reason to complain if their goods fall into my possession. They suffer indeed by a war in which they have no concern; but they suffer accidentally, I do not oppose their right; I only exert my own, and if our rights clash and reciprocally injure each other, that circumstance is the effect of inevitable necessity."—Ibid, Bk. III, ch. VII, § 111.
7 "But in order to hinder the transportation of contraband goods to an enemy, are we only to stop and seize them, paying the value to the owner,- -or have we a right to confiscate them? Barely to stop these goods would in general prove an ineffectual mode, especially at sea. Recourse is therefore had to the expedient of confiscating all contraband goods that we can seize on, in order that the fear of loss may operate as a check on the avidity of gain, and deter the merchants of neutral countries from supplying the enemy with such commodities.
On this account [the belligerent] notifies to the neutral states her declaration of war, whereupon the latter usually give orders to their subjects to refrain from all contraband commerce with the nations at war, declaring that if they are captured in carrying on such trade, the sovereign will not protect them."-Ibid, Bk. III, ch. VII, § 113.
8 "It has, in perfect conformity to sound principles, been agreed that the belligerent Powers may seize and confiscate all contraband goods which neutral persons shall attempt to carry to their enemy, without any complaint from the sovereign of those merchants; as, on the other hand, the Power at war does not impute to the neutral sovereigns these practices of their subjects."-Ibid, Bk. III, ch. VII, § 113.
tect as far as possible the freedom of neutral commerce, by restricting the belligerent right of capture to contraband articles. But the rules laid down by these writers were often disregarded by belligerent Powers. Nations were seeking to advance their own interests rather than to conform to any legal rules. Hence, the rights of neutral commerce were sought to be protected only by those whose interest it was to do so. In 1780 the alliance known as the "First Armed Neutrality" was formed by several European Powers under the leadership of Russia, professedly to resist the maritime pretensions of England. This alliance was committed to the defense of the following rules: (1) all neutral vessels may freely navigate from port to port; (2) enemy's goods shall be free from capture in neutral vessels, except contraband articles; (3) such contraband articles shall be restricted to munitions of war; and (4) a blockade must be maintained by an adequate force.
It will be seen that these rules were substantially the same as those afterward adopted in the Declaration of Paris in 1856 after the Crimean War. They were intended to protect the freedom of neutral trade. The commerce of neutrals was to be free from the customary depredations of belligerent Powers. The only restrictions to which neutral commerce should be subject would be the liability to capture and condemnation by a belligerent for the carriage of contraband or the breach of blockade. As contraband goods were made identical with munitions of war, the only restraint upon the exportation of munitions of war from a neutral country to one of the belligerents would be their liability to capture and condemnation by the other belligerent. It was not expected, nor was it indicated in these rules, that any neutral country would be under obligations to prevent the exportation of munitions of war to a belligerent-such an act being treated not as an infraction of neutrality, but simply as an offense against the belligerent, and subject to his condemnation. These rules were not only adopted by the members of the "Armed Neutrality," which consisted of Russia, Denmark, Sweden, Holland, Prussia, Portugal and the Two Sicilies, but also approved by France, Spain, Austria and the United States. By the time of the First Armed Neutrality of 1780 the general law relating to the confiscation of contraband goods had become fairly well established, at least in theory. Although this league was soon dissolved, and its obliga
tions were ignored by some of its members, the adoption of its rules marks a temporary stage in the growth of the modern law of neutrality.9
The development of the law of contraband, whereby articles useful in war found in a neutral vessel and destined to the port of one belligerent may be seized and confiscated by the other belligerent, illustrates the inevitable conflict between belligerent and neutral rights in time of war. The belligerent naturally feels that he has a right to conduct the war against his adversary unimpeded by any interference by a third party, that the furnishing of contraband articles to his enemy is such an interference, and should consequently be stopped. The neutral, on the other hand, proceeds on the theory that war represents an abnormal condition; that he should not be compelled to restrict the normal commerce of his own citizens because a war is somewhere in progress; that a commerce which is legitimate in time of peace should not be sacrificed in time of war at the behest of a belligerent Power; that his position as a neutral is not affected provided he is impartial in furnishing supplies to both belligerents; and, finally, that the attempt to regulate the commerce of his own citizens in the interests of either or both belligerents, would involve a responsibility and a burden that, as a neutral, he ought not to be compelled to assume. Here is evidently a conflict of rights claimed respectively by belligerents and neutrals. How shall this conflict bet adjusted? Only by some sort of compromise. This compromise has been effected by the practice of nations, which has become an accepted principle of international law. This principle is embodied in the law of contraband. By this law, the neutral nation is under no obligation to place any restraint upon the private commerce of its own citizens in the interests of belligerent parties; but, on the other hand, all neutral vessels are subject to the exercise of the right of visitation and search, and of condemnation if found carrying hostile goods to a hostile destination. However much the list of contraband articles may change from time to time, it always contains as absolute contraband those articles which are classed as munitions of war; so that what may be properly said regarding the sale, exportation, the capture and condemnation of contraband
' Wheaton, Hist., pp. 295–298; Oppenheim, Int. Law, II, pp. 308, 325, 407, 422; Hall, Int. Law, 4th ed., pp. 672-674.
articles, applies to the sale, exportation, the capture and condemnation of munitions of war.10
At the close of the eighteenth century the practice of nations was by no means uniform, and the law of neutrality was, as a matter of fact, often disregarded. It was the policy of the United States, more than any other single influence, that tended to give definiteness to this branch of international law. In the midst of the European wars that followed the French Revolution, the United States was the chief neutral nation whose commercial rights were placed in jeopardy. The year 1793 may be said to form an epoch in the history of the law of nations. In that year began the series of struggles in which Great Britain and France were the chief belligerents and in which nearly all the countries of Europe became involved; and in that same year was also issued President Washington's famous Proclamation of Neutrality. It is unnecessary to rehearse here the story of the appearance on American soil of the notorious French Ambassador, M. Genet, and his insolent attempts to make the United States the basis of warlike operations against Great Britain; and of the laudable efforts of Washington to resist these attempts. The United States was at that time the youngest nation of the world; but it was yet a nation, with a high sense of honor, and it was the policy of President Washington to maintain the strictest neutrality between the belligerent countries of Europe. In this policy he was ably seconded by his Secretary of State, Thomas Jefferson. To Genet, who was trying to embroil this country in the European war by fitting out privateers on American soil, Jefferson wrote:
It is the right of every nation to prohibit acts of sovereignty from being exercised by any other within its limits; and the duty of a neutral nation to prohibit such as would injure one of the warring Powers.11
10 "The present condition of the carriage of contraband is therefore a compromise. In the interest of the generally recognized principle of freedom of commerce between belligerents and subjects of neutrals, international law does not require neutrals to prevent their subjects from carrying contraband; on the other hand, international law empowers either belligerent to prohibit and punish carriage of contraband in the same way as it empowers either belligerent to prohibit and punish breach of blockade."-Oppenheim, Int. Law, II, p. 432; see also, Hall, Int. Law, 4th ed., pp. 655, 656; Lawrence, Principles, pp. 566, 567; Geo. B. Davis, Elements, 3d ed., pp. 449–453.
11 Mr. Jefferson, Sec. of State, to M. Genet, June 5, 1793. Am. State Papers, Foreign Relations, I, p. 150; Moore, Digest, VII, p. 886.