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Published online by Cambridge University Press: 04 May 2017
The rights and duties incident to neutrality is a branch of international law that is of comparatively recent growth. Still the distinction between belligerent nations and neutral nations and between enemy goods and neutral goods has been recognized from quite early times. In the well-known collection of maritime law known as the Consolato del Mare, which made its appearance in the fourteenth century, the rule is laid down that enemy goods on neutral ships are liable to capture, but neutral goods on enemy ships must be restored to their owner. This rule evidently assumes also the existence at that time of the belligerent right to visit and search neutral vessels.
1 “The ancient rule of the Consolato del Mare, in recognizing the right to capture enemy’s property on neutral vessels evidently recognizes the belligerent right of visitation and search for the purpose of ascertaining the proprietary interest.”— Wheaton, Hist., p. 145.
2 “It is the duty of neutrals [qui in bello medii] to do nothing which may strengthen the side which has the worst cause, or which may impede the motions of him who is carrying on a just war; and in a doubtful cause, to act alike to both sides in permitting transit, in supplying provisions, in not helping persons besieged.”—De Jure Belli el Pacts, Bk. III, ch. XVII, 3 (Whewell’s translation).
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.
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.
9 Wheaton, Hist., pp. 295–298; Oppenheim, Int. Law, II, pp. 308, 325, 407, 422; Hall, Int. Law, 4th ed., pp. 672–674.
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.
12 Lawrence, Principles, p. 483.
13 Hall, Int. Law, p. 616. It may also be noticed that Mr. Canning in 1823, in a speech before the House of Commons against the British Foreign Enlistment Act of 1819, said: “If I wished for a guide in a system of neutrality, I should take that laid down by America in the days of the presidency of Washington and the secretary-ship of Jefferson.”— Fenwick, , Neutrality Law of the U. S., pp. 27, 28 Google Scholar, quoted in Stockton’s Outlines, p. 386.
14 Text in Am. State Papers, For. Relations, I, p. 140; also in McDonald, Select Documents, p. 113.
15 Mr. Jefferson, Sec. of State, to Mr. Hammond, British Minister, May 15, 1793, Am. State Papers, For. Relations, I, pp. 69, 147; Jefferson’s Works, III, pp. 558, 560; quoted in Moore’s Digest, VII, p. 955.
16 Hamilton’s Treasury Circular, August 4, 1793, Am. State Papers, For. Relations, I, p. 140; quoted in Moore’s Digest, VII, p. 955.
17 Letter of Mr. Webster to Mr. Thompson, Minister to Mexico, July 8, 1842, Lawrence’s Wheaton, p. 813, note, citing Webster’s Works, VI, p. 452; also quoted in Geo. B. Davis, Elements, 3d ed., p. 401.
18 President Pierce, annual message, Dec. 3, 1854, Richardson’s Messages, V, pp. 327, 331; quoted in Moore’s Digest, VII, pp. 956, 957.
19 Mr. Marcy, Sec. of State, to Mr. Buchanan, Minister to England, British and Foreign State Papers, XLVII, pp. 421, 424; quoted in Moore’s Digest, VII, p. 957.
20 Mr. Seward, Sec. of State, to Mr. Romero, Mexioan Minister, Dec. 15, 1862, Ms. Notes to Mexico, VII, p. 215; quoted in Moore’s Digest, VII, p. 958.
21 Quoted in Moore’s Digest, VII, p. 973.
22 Mr. Bayard, Sec. of State, to Mr. Preston, Haytian Minister, Nov. 28, 1888, For. Relations, 1888, I, p. 1000; see Moore, Digest, VII, p. 964.
23 Mr. Blaine, Sec. of State, to Mr. Lazeano, Chilean Minister, March 13, 1891, For. Relations, 1891, p. 314; quoted in Moore’s Digest, VII, pp. 964, 965.
24 Mr. Foster, Sec. of State, to Mr. Bolet Peraza, Venezuelan Minister, Sept. 22, 1892, For. Relations, 1892, p. 645; quoted in Moore’s Digest, VII, p. 965.
25 Mr. Hay, Sec. of State, to Mr. Pierce, Dec. 15, 1899, MS. Notes to Foreign Consuls, IV, p. 464; quoted in Moore’s Digest, VII, pp. 969, 970.
26 “The carriage of such articles [contraband] by neutral merchantmen upon the open sea is, so far as international law is concerned, quite as legitimate as their sale. The carrier of contraband by no means violates an injunction of the law of nations. But belligerents have by the law of nations the right, to prohibit and punish the carriage of contraband by neutral merchantmen, and the carrier of contraband violates, for this reason, an injunction of the belligerent concerned. It is not international law, but the municipal law of the belligerents, which makes the carriage of contraband illegitimate and penal.”—Oppenheim, Int. Law, II, p. 431.
27 “This distinction between the usages affecting national and private acts is deeply rooted in the habits of nations. * * * It has been, and still is, usual for [legal writers] to confuse neutral states and individuals in a common relation to belligerent states; and in losing sight of the sound basis of the established practice they have necessarily failed to indicate any clear boundary of state responsibility. This want of precision is both theoretically unfortunate, and not altogether without practical importance. For it has enabled governments from time to time to put forward pretensions, which though they have never been admitted by neutral states, and have never been carried into effect, cannot be often made without endangering the stability of the principles they attack. But the common sense of statesmen has generally met such pretensions with a decided assertion of the authoritative doctrine.”—Hall, Int. Law, 4th ed., II, pp. 82, 83.
28 For the penalty for the carriage of contraband, see Oppenheim, Int. Law, II, pp. 441–444; Hall, Int. Law, 4th ed., pp. 690-696; Lawrence, Principles, pp. 617–619; Hershey, Essentials, pp. 501, 502; Stockton, Outlines, pp. 436–440; Woolsey, Int. Law, 5th ed., §§ 197, 198.
29 Hall, Int. Law, 4th ed., p. 80.
30 Lord Brougham’s Works, Ed. 1857, VIII, p. 386; quoted in Hall’s Int. Law, 4th ed., p. 80, note.
31 Convention, V, Art. 7, and Convention XIII, Art. 7,—both signed at The Hague, Oct. 18, 1907. See Pamphlets Nos. 13, 20, Division of International Law, Carnegie Endowment for International Peace; also, James, Brown Scott, Texts of the Peace Conferences at The Hague, 1899, 1907 Google Scholar. The above named articles are reprinted in Hershey’s Essentials, pp. 459, 467; also in Wilson and Tucker’s Int. Law, 5th ed., pp. 421, 445.
32 “Official protests by belligerent governments against the right of neutral individuals to trade in contraband are heard during nearly every war. This view is also championed by a small band of publicists, notably by Hautefeuille, Phillimore, and Kleen. It is without sanction, either in theory or practice.”—Hershey, Essentials, p. 459, note 7.
33 The German Ambassador to the Secretary of State, April 4, 1915,—transmits memorandum regarding the matter of German-American trade and the question of delivery of arms. See Special Supplement to this Journal, July, 1915, pp. 125–127.
34 The Secretary of State to the German Ambassador, April 21, 1915,—gives views of U. S. regarding trade between U. S. and Germany and the exportation of arms.— See Ibid., pp. 127–129.
35 The Austro-Hungarian Minister for Foreign Affairs to Ambassador Penfield, June 29, 1915,—asks U. S. to reconsider its attitude on traffic in munitions of war between U. S. and Great Britain and her allies. See Ibid., pp. 146–149.
36 The Secretary of State to Ambassador Penfield, August 12, 1915,—instructed to inform Foreign Office of reason the U. S. cannot prohibit trade in contraband. See Ibid., pp. 166–171.