1. Acts of the belligerents themselves;

2. Acts of individuals in their interest.

be allowed to commit any act of war against each other within the jurisdiction of the neutral, nor may they make preparations for war therein, nor make the neutral territory a starting point for hostile expeditions or a base of military or naval operations.

But the neutral state must not only prevent belligerents from compromising its neutrality by acts committed within its jurisdiction; it must also prevent private persons, whether aliens or its own citizens, from assisting in the perpetration of such violations of its sovereignty. Here we are immediately confronted with the distinction which will lead us to an understanding of the character and scope of what are called "neutrality laws." With respect to acts committed by the belligerents themselves in violation of neutral territory, it is evident that the neutral state, while standing responsible to the injured belligerent for such violations of its sovereignty, cannot proceed to punish the offenders by reason of the fact that the public vessels of a belligerent are not subject to the jurisdiction of the neutral state even when within its territorial waters, nor are the officers in command of the armed forces of a belligerent state, nor the members constituting those forces, amenable to the civil or criminal jurisdiction of the neutral state.1 All that the neutral state can do is to make complaint through diplomatic channels and to obtain redress directly from the state in whose service the offenders have acted.2

But it is otherwise with respect to the acts of private individuals who attempt to coöperate with a belligerent in violating the sovereignty of the neutral state. Here the neutral state is free to take whatever steps it pleases to prevent such individuals from compromising its neutrality. Accordingly, it may pass laws defining the acts which it regards as compromising its neutrality and providing punishment for the commission of them. The acts must, of course, be committed within the jurisdiction of the neutral state, for it is only over such acts that the state is supposed to have control. Beyond the jurisdiction of the state its citizens may commit hostile acts against a belligerent without consequent responsibility in international law devolving upon the neutral state. The remedy of the belligerent in this

1An exception to this rule, in cases where individual officers or members of a foreign army or navy become guilty of crimes committed independently of their official position, does not affect the principle involved.

2The neutral state can, however, take direct action against the officers in such cases to the extent of refusing to grant the asylum which it might otherwise give to the offending vessel or army, and of refusing to recognize, in so far as they may come within its jurisdiction, the legality of property rights acquired in consequence of a violation of its sovereignty.

case is upon the individuals personally who, by their own act, have forfeited the protection of their state. An exception to the responsibility of a neutral state for acts committed within its jurisdiction is to be found in the general admission that no state can exercise so extensive and thorough a supervision over what is done within its territory as to prevent the commission of carefully concealed acts. A further exception is that the jurisdiction ordinarily exercised by a nation over its merchant vessels on the seas does not impose upon it the obligation of punishing hostile acts committed by such vessels.

Legislation of this character, which is enacted by a state to prevent Neutrality laws. individuals within its jurisdiction from compromising the neutrality Their character. of the state during a war between two foreign powers, is known in the United States as a "neutrality act," and the provisions of such an act may be called "neutrality laws." Neutrality laws are thus purely domestic regulations and form no part of the body of international law. In point of comprehensiveness they represent the extent to which the state considers it necessary to adopt penal measures to effectively prevent persons within its jurisdiction from coöperating with a belligerent in the use of its neutral territory for hostile purposes. In this connection it matters not whether the individuals who render such assistance to a belligerent do so from feelings of hostility towards the other belligerent, or merely from commercial motives; it is the act itself which the injured belligerent will properly complain of, not the motive with which the act is done.

Such being the character of neutrality laws, we may now inquire Their proper into their proper scope. Inasmuch as neutrality laws are municipal scope. in character and are binding only within the jurisdiction of the state enacting them, they may be looked upon as embodying the concept of international duty as understood by the individual state, together with such additional restrictions as the state may choose to impose upon its citizens from motives of policy. Whether the state has understood its duty correctly or not is a further question. Accordingly, in some cases neutrality laws may go beyond the requirements of the international obligations of the state by restricting the action of its

1English_writers, in referring to such legislation, generally employ the term "Foreign Enlistment Act," owing to the fact that the first British act for the purpose of fulfilling the obligations of Great Britian as a neutral was based, to some extent, upon earlier British acts for the prevention of the enlistment of British subjects in foreign armies.

2It is important to observe the distinction between "neutrality laws" and the "law (or laws) of neutrality." The latter term should be confined to the international law covering the whole field of the relations between belligerents and neutrals.

If in excess of in- citizens to a greater extent than international law demands. Such ternational law,

no resulting

obligation.

excess of legislation should not, in principle, increase the obligations of the neutral state from the point of view of international law, so long as it is enforced in favor of both belligerents equally. There is some danger, however, lest the municipal laws of a state be regarded as defining the standard according to which foreign nations may hold that state accountable for alleged breaches of neutrality.1 In the Case of the United States, presented to the Tribunal of Arbitration. at Geneva, it was argued by the United States that "Great Britain was bound to perform all the duties of a neutral towards the United States which are indicated in this statute [The British Foreign Enlistment Act of 1819]." To this it was replied in the British Counter Case, first, that even on the assumption that municipal laws of that character were founded upon conceptions of international obligation, the state should still be judged by the actual law of nations and not by its conception of that law, and secondly, that the assumption was not a true one, since municipal laws, being enacted primarily to secure the interests of the state itself, may frequently prohibit, for reasons of expediency, acts not prohibited by the law of nations. However, the danger of being held accountable for its own conception of neutral duty would appear to be more than counterbalanced by the advantages to a state of pursuing a liberal policy in the matter of neutral duties, especially in cases where the principle of responsibility is clear, but where the application of the principle to concrete circumstances is not capable of being, or has not been, fixed by international practice.*

1Hall lays much stress upon this danger, pointing out that if a law has been administered for some time by the courts of a state, and insensibly becomes to the majority of the people their standard of right, "a tendency will in time grow up to act according to its provisions irrespectively of the obligations which it imposes. So long also as the law is administered at all, foreign nations will each expect to reap the full benefit which has accrued to another from its operation; and any failure on the part of the neutral government to make use of its powers gives a ground for suspecting unfriendliness, which the belligerent cannot be expected in the heat of war to estimate at its true value." Op. Cit., 608, note.

2Papers Relating to the Treaty of Washington, I, 48.

Ibid. III, 210. In addition, reference may be made to the suggestion of Hall, that "it may be more convenient to discourage the inception of acts, which would only in the later stage become international wrongs, than to deal with them when ripe." Op. Cit., 608, note.

It was upon this principle that the British Neutrality Laws Commission of 1867 framed the report which formed the basis of the Foreign Enlistment Act of 1870. "In making the foregoing recommendations," the Commissioners said, "we have not felt ourselves bound to consider whether we were exceeding what could actually be required by International Law, but we have no hesitation in stating our opinion that if those recommendations should be adopted, the Municipal Law of this realm available for the enforcement of neutrality will

Accordingly, while a state will naturally seek, in framing its neutrality code, to conform to the obligations of international law, it may find it expedient, especially where it has particular reasons for maintaining an unassailable position of neutrality, to make its municipal laws more stringent than is required by a faithful compliance with international law.

Just as the municipal laws of a state may exceed the actual require- If narrower, no lessening of ments of international law, so, on the other hand, they may be narobligation. rower and less comprehensive than those requirements. In such cases the neutral state is, of course, not released from responsibility for acts committed by its citizens or others within its jurisdiction, by which its neutrality is compromised. This point was forcibly urged by the United States before the Geneva Arbitration Tribunal in the following terms:

It must be borne in mind, when considering the municipal laws of Great Britain, that, whether effective or deficient, they are but machinery to enable the Government to perform the international duties which they recognize, or which may be incumbent upon it from its position in the family of nations. The obligation of a neutral state to prevent the violation of the neutrality of its soil is independent of all interior or local law. The municipal law may and ought to recognize that obligation; but it can neither create nor destroy it, for it is an obligation resulting directly from International Law, which forbids the use of neutral territory for hostile purpose. The local law, indeed, may justly be regarded as evidence, as far as it goes, of the nation's estimate of its international duties; but it is not to be taken as the limit of those obligations in the eye of the law of nations.1

To sum up, we find that the basic principle of neutrality, by which a Summary. neutral state is bound to refrain from interfering in a war between two powers at peace with the neutral state, imposes both active and passive duties. The passive duties are fulfilled if the neutral state faithfully refrains, in its corporate capacity, from giving either direct or indirect assistance to either belligerent, with the exception that it may continue to render certain of the courtesies shown in time of peace, provided it render them impartially to both belligerents. The active duties require the neutral state to take measures to prevent any 1Papers Relating to the Treaty of Washington, I, 47.

derive increased efficiency, and will, so far as any defects therein have attracted our notice, have been brought into full conformity with Your Majesty's international obligations." Report of the British Neutrality Laws Commission, No. 69.

use of its territory for hostile purposes. If the belligerents themselves are the guilty parties in such violations of neutral territory, the neutral state must obtain redress from them through diplomatic channels. If private individuals, whether citizens of the neutral state or aliens, are the guilty parties, by attempting to assist either belligerent in making unlawful use of neutral territory, the neutral state must make every reasonable effort to thwart their plans, and must inflict. appropriate penalties where the acts have been committed. The laws. which the neutral state may make for this purpose are called "neutrality laws." They define the acts which the neutral state believes will compromise its neutrality, and provide the means for prosecuting and punishing those who commit such acts. They are strictly domestic laws and have no direct international effect. They may or may not conform by their terms to the requirements of the international obligations devolving upon the state, which continue the same whatever be the character of the legislation which each state may adopt to enable itself to comply with them. Inasmuch as they do not apply to the belligerents themselves directly, they must be supplemented, when the occasion arises, by instructions to the proper officers of the state, pointing out the restrictions to be placed upon the grant of asylum to belligerent vessels in the ports of the neutral state. These administrative instructions, being of a temporary character, are generally not made part of a permanent neutrality act. In the United States, where the executive department is unable to make use of the military and naval forces of the state except as authorized by Congress, it is customary to include among the provisions of neutrality acts a grant of power to the president to call the armed forces of the country to his aid when necessary to vindicate the neutrality of the United States.