Int. Law, vol. 3, §§ 138, et seq.; Massé, Droit Commercial, liv. 2, tit. 1, ch. 2, § 2; Heffter, Droit International, §§ 144–146; Waite, State Papers, vol. 1, pp. 140, 169–172; Manning, Law of Nations, pp. 167, 168; Ortolan, Diplomatie de la Mer, tome 2, ch. 4; Garden, De Diplomatie, liv. 7, § 1; Bello, Derecho Internacional, pt. 2, cap. 7, §§ 1, 2; Hautefeuille, Des Nations Neutres, tit. 4, ch. 1; Pitkin, Civil and Polit. Hist. of U. S., vol. 1, ch. 10; Eggers, Leben von Bernstorf, 2 ob., pp. 118–195.)

§ 3. States, not parties to a war, have not only the right to remain neutral during its continuance, but to do so conduces greatly to their advantage, as they thereby preserve to their citizens the blessings of peace and commerce. Moreover, the belligerents are interested in maintaining the just rights of neutrals, as the trade and intercourse kept up by them greatly contribute to mitigate the evils of war. It has, therefore, become an established principle of international law, that neutrals shall be permitted to carry on their accustomed trade, with such restrictions only as are necessary for the security of the established rights of the belligerents. Although the neutral state is considered as continuing to occupy toward the belligerents the same general position as before the war, its relations with them are very different; neutrality is not properly a continuation of the former state of peace, ("la continuation de l'êtat antérieur de paix ;”) for, to neutrals, war brings certain advantages and disadvantages, and imposes upon them new and peculiar duties. While, in some respects, their trade and commerce may be increased in extent and profit, it is restricted with respect to blockades and seiges, and the carrying of contraband, and their vessels are subjected to the inconvenience and annoyance of visit and search. Not only are they obliged to maintain strict impartiality toward the belligerents, but they are bound to prevent or punish any violation of their rights of neutrality, by either of the parties at war with each other. These duties of neutrality extend not only to preventing the arming of cruisers in neutral ports, and the enlistment of men in neutral territory, but also to the general sanctity of neutral jurisdiction, by redressing all injuries which one belligerent may commit upon the other within its limits. (Phillimore, On Int. Law, vol. 3, §§ 136, 137; Hubner, De la Saisie des bâti

ments Neutres, pt. 2, ch. 2, § 2; Azuni, Droit Maritime, tome 2, pp. 53, 69; Massé, Droit Commercial, tome 1, pp. 177-192; Tetens, Considerations sur les Droits, etc., p. 34; Ortolan, Diplomatie de la Mer., tome 2, ch. 8; Kent, Com. on Am. Law, vol. 1, pp. 118, 119; Wheaton, Elem. Int. Law, pt. 4, ch. 3, §7; Heffter, Droit International, § 146-150; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 14; Hautefeuille, Des Nations Neutres, tit. 4, ch. 1.)

§ 4. The rights of war can be exercised only within the territory of the belligerent powers, upon the high seas, or in territory belonging to no one. Hostilities cannot be lawfully exercised within the territorial jurisdiction of the neutral state which is the common friend of both parties. To grant any such right to one would be a detriment to the other, and to extend the privilege to both would necessarily make the neutral territory the theatre of hostile operations, and involve the state in the consequences of the war. Hence, every voluntary entrance into neutral territory, with hostile purposes, is absolutely unlawful, and the party so trespassing is liable to be treated as an enemy, unless full satisfaction is made for such violation of neutral rights. (Wheaton, Elem. Int. Law, pt. 4, ch. 3. §7; Kent, Com. on Am. Law, vol. 1, pp. 118, 119; Vattel, Droit des Gens, liv. 3, ch. 7, § 132; Grotius, de Jur. Bel. ac Pac., lib. 2, cap. 2, § 13; Bynkershoek, Quaest. Jur. Pub., lib. 1, cap. 8; Wolfius, Jus. Gentium, § 687; Martens, Precis du Droit des Gens, §§ 310, 311; Heffter, Droit International, §§ 146, 147; Garden, De Diplomatie, liv. 7, §2; Hautefeuille, Des Nations Neutres, tit. 6, ch. 1.)

§ 5. It was contended by some of the ancient publicists that a belligerent had an absolute right of passage for his troops through neutral territory, and that the neutral could not refuse it without injustice. But Vattel contends that such innocent passage through neutral territory may be granted or refused by the neutral power, at its discretion; that, if refused, the applicant has no cause of complaint, and if granted, the opposite party can only claim the same privilege for his own troops. Many modern writers, and the German publicists generally, have pronounced in favor of the views of Vattel. But Heffter, Hautefeuille, Manning, and others,

express the opinion, that to grant such passage is a violation of neutral duty, and affords just cause of complaint, if not of war, to the other belligerent. This opinion seems most consonant with the general principles of neutrality. But admitting the right of the neutral state to make such agreement, it follows, that if it grant or refuse passage to one of the parties to the war, it is bound, in like manner, to grant or refuse it to all the other parties, unless the alteration of circumstances, or some special reason, should, of itself, form a justification for acting otherwise. Without solid and satisfactory reasons, to grant passage to one belligerent and refuse it to another, would be showing partiality, and receding from a position of strict neutrality. This is the reasonable and just rule deduced from the opinions of law writers, and the usage of nations. The grant of passage, says Vattel, includes all those things without which the passage would not be practicable, such as the liberty of carrying whatever may be necessary for the passing army, and that of maintaining discipline among the troops. Moreover, he who grants a passage is bound, so far as lies in his power, to make it safe from attack; for, otherwise, it would be drawing those who pass into a snare, which would be a breach of good faith. Whether the troops are to pass with or without arms, and whether they are to be permitted to purchase supplies in the country passed over, or to carry their provisions with them, will, in general, be specified in the grant of passage, and if not specified, such permission will be presumed. Troops, to whom a passage is granted through a neutral territory, are bound to observe the most exact discipline, to occasion no damage to the country passed over, to keep the public roads, and not to enter the houses or lands of private persons, and to punctually pay for whatever is purchased of the inhabitants. The state to which the troops belong is held strictly accountable for any damage to public or private property. Moreover, they cannot make the neutral border a shelter for making preparations to attack the enemy, nor, when defeated, an asylum in which to lie by and watch their opportunity for further contest. This would be making the neutral country directly auxilliary to the war, and to the comfort and support of one of the belligerents. Such conduct

would be a violation of the rights and duties of neutrality, and, so far from being justified by the grant of passage, it would be good cause for the neutral state to revoke the grant, and compel the offender to immediately leave its territory. (Kent, Com. on Am. Law, vol. 1, pp. 119, 120; Vattel, Droit des Gens, liv. 3, ch. 7, §§ 133, 134; Bello, Derecho Internacional, pt. 2, cap. 7, §§ 5, 6; Manning, Law of Nations, pp. 182, et seq.; Moser, Versuch, etc., b. 10, c. 1, pp. 238, et seq.; Wheaton, Elem. Int. Law, pt. 4, ch. 3, §8; Kent, Com. on Am. Law, vol. 1, p. 119; Grotius, de Jur. Bel. ac Pac., lib. 2, cap. 2, § 13; Manning, Law of Nations, pp. 182-186; Wolfius, Jus Gentium, § 687; Dumont, Corps Dip., liv. 3, ch. 1, § 193; Wildman, Int. Law, vol. 1, pp. 64, 65; Ortolan, Diplomatie de la Mer, tome 2, ch. 8; Martens, Precis du Droit des Gens, § 310; Moser, Versuch, etc., b. 10, ch. 1, §§ 218, 238; Heffter, Droit International, § 147; Hautefeuille, Des Nations Neutres, tit. 5, ch. 1; Pando, Derecho Internacional, p. 461; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 17; Galiani, De Doveri de Populi Neutrali, pt. 1, ch. 7.)

§ 6. Bynkershoek makes one exception to the general inviolability of neutral territory, and contends that if a belligerent should be attacked on hostile ground, or in the open sea, and should flee within the jurisdiction of a neutral state, the victor may pursue him dum fervet opus, and seize his prize within the neutral state. He rests his opinion entirely on the authority and practice of the Dutch, and not on the usage of any other nation. Casaregis, in one part of his work, expresses the same opinion, and, relying on the practice or law observed in the chase of animals, maintains that if a naval fight has commenced on the high seas, a belligerent may pursue and capture the ship of his enemy, even under the cannon, and within the jurisdiction of a neutral power. But, in a subsequent discourse, he acknowledges his error, or rather forgets his former opinion, and adopts a contrary one with respect to the protection afforded to belligerent vessels in neutral ports. (Wheaton, Elem. Int. Law, pt. 4, ch. 3, § 10; Bynkershoek, Q. J. Pub., lib. 1, cap. 8; Casaregis, de Commercio, disc. 24, n. 2, and disc. 174, n. 11; Bello, Derecho Internacional, pt. 2, cap. 7, § 6; Heffter, Droit International, §§ 146, 147; Kent, Com. on Am. Law, vol. 1, p. 120; Manning,

Law of Nations, pp. 184, 386; Dumont, Corps Dip., tome 6, p. 129; The Anna, 5 Rob. Rep., p. 348.)

§ 7. But this opinion of Bynkershoek is not supported by the practice of nations, nor by writers on public law. Abreu, Valin, Emerigon, Vattel, Azuni, Sir William Scott, Martens, Phillimore, Manning, and other European writers, maintain the sounder doctrine, that when the flying enemy has entered neutral territory he is placed immediately under the protection of the neutral power, and that there is no exception to the rule that every voluntary entrance into neutral territory, with hostile purposes, is absolutely unlawful. Kent, Wheaton, Story, and other American writers, oppose the doctrine of Bynkershoek; and the government of the United States has invariably claimed the absolute inviolability of neutral territory. (Abreu, Sobre las Presas, pt. 1, c. 4, § 15; Valin, Traité des Prises, ch. 4, § 3; Azuni, Droit Maritime, pt. 1, c. 4, § 1; Vattel, Droit des Gens, liv. 3, ch. 7, §§ 132, 133; The Anna Catharina, 5 Rob. Rep., p. 15; Kent, Com. on Am. Law, vol. 1, p. 120; Wheaton, Elem Int. Law, pt. 4, ch. 3, § 10; Martens, Precis du Droit des Gens, §§ 310, et seq.; Emerigon, Traité des Assurances, ch. 12, sec. 19; Phillimore, On Int. Law, vol. 3, § 154; Manning, Law of Nations, pp. 186, 386; Ortolan, Diplomatie de la Mer., tome 2, ch. 8; Heffter, Droit International, §§ 146, 147; Riquelme, Derecho Pub Int., lib. 1, tit. 2, cap. 17.)

§ 8. This question was revived and elaborately discussed in the case of the steamboat "Caroline," which was captured and destroyed by British armed forces while in American territory, in the winter of 1838. This vessel had been employed hy a body of Canadian insurgents, in conveying passengers and munitions of war from the frontier of the state of New York to the British ground of Navy Island. The commander of the expedition, from the Canada side, sent to capture this vessel, expected to find her within British territory, but on coming round the point of the island in the night, he first discovered that the vessel was moored on the American shore. He nevertheless proceeded to make the capture and to destroy the vessel, although then within the neutral territory, and his conduct was approved by his government. This led to remon