of perpetual allegiance," says Mr. Webster, "and the consequent power of the prerogative, was the law of the world; if it formed part of the conventional code of nations, and was usually practised, like the right of visiting neutral vessels for the purpose of discovering and seizing enemy property, then impressment might be defended as a common right, and there would be no remedy for the evil, till the national code should be altered. But this is by no means the case. There is no such principle incorporated into the code of nations. The doctrine stands only as English law, not as national law; and English law cannot be of force beyond English dominion. Whatever duties and relations that law creates between the Sovereign and his subjects, can be enforced and maintained only within the realm, or proper possessions, or territory of the sovereign. There may be quite as just a prerogative right to the property of subjects as to their personal services, in an exigency of the state; but no government thinks of controlling, by its own laws, property of its subjects situated abroad; much less does any government think of entering the territory of another power, for the purpose of seizing such property, and applying it to its own uses. As laws, the prerogatives of the crown of England have no obligations on persons or property domiciled or situated abroad.' (Webster's Works, vol. 5, p. 142; vol. 6, p. 329; Webster, Dip. and Off. Papers, p. 97; Wheaton, Hist. Law of Nations, pp. 739, 740; Phillimore, On Int. Law, vol. 3, § 335; Manning, Law of Nations, p. 371.)

§30. After a calm and dispassionate examination of the whole subject, the American secretary of state announces the rule which will be maintained by his government. "The American government," says Mr, Webster, "is prepared to say that the practice of impressing seamen from American vessels, cannot hereafter be allowed to take place. That practice is founded on principles which it does not recognize, and is invariably attended by consequences so unjust, so injurious, and of such formidable magnitude, as cannot be submitted to. In the early disputes between the two governments on this so long contested topic, the distinguished person to whose hands were first committed the seals of this department, declared, that the simplest rule will be, that the

vessel being American, shall be evidence that the seamen on board are such! Fifty years experience, the utter failure of many negotiations, and a careful reconsideration, now had, of the whole subject, at a moment when the passions are laid, and no present interest or emergency exists to bias the judgment, have fully convinced this government that this is not only the simplest and best, but the only rule, which can be adopted and observed consistently with the rights and honor of the United States, and the security of their citizens. That rule announces, therefore, what will hereafter be the principle maintained by their government. In every regularly documented American merchant vessel, the crew who navigate it will find their protection in the flag which is over them." (Webster, to Lord Ashburton, Aug. 8, 1842; Webster, Dip. and Off. Papers, p. 101; Wheaton, Hist. Law of Nations, pp. 745, 746; Webster, The Works of, vol. 6, p. 325.)

40*

CHAPTER XXVI.

VIOLATION OF NEUTRAL DUTIES.

CONTENTS.

1. The rights and duties of neutrality are correlative-8 2. Violation of neutral duty by a state- 3. By individuals—? 4. Criminal character of such violations 5. Neutral vessels transporting enemy's goods-6. Opinions of publicists - 7. Neutral goods in enemy ships-8. Maxims of "free ships free goods," and "enemy ships enemy goods"-9. These maxims in the U. S.-10. Treaties and ordinances - 11. France and England in 1854-12. Congress of Paris in 1856-13. Rule of evidence with respect to neutral goods in enemy ships-14. Neutral ships under enemy's flag and pass- 15. Neutral goods in such vessel — § 16. Neutral vessel in enemy's service- 17. Transporting military persons18. Conveying enemy's dispatches-819. Engaging in enemy's commerce exclusively national- 20. Rule of 1756 and rule of 1793-8 21, Distinction between them - 22. Application of the rule of 1793, to continuity of voyage-23. Effect on American commerce- 24. General result of discussions 25. Views of American government - 26. Change of British colonial policy.

§1. Any act of positive hostility on the part of a neutral state toward one of the belligerents in a war, is deemed a breach of neutrality, and makes such state a party in the war. The rights and duties of neutrality are correlative, and the former cannot be claimed, unless the latter are faithfully performed. If the neutral state fail to fulfil the obligations of neutrality, it cannot claim the privileges and exemptions inci

dent to that condition. The rule is equally applicable to the citizens and subjects of a neutral state. So long as they faithfully perform the duties of neutrality, they are entitled to the rights and immunities of that condition. But for every violation of neutral duties, they are liable to the punishment of being treated in their persons or property as public enemies of the offended belligerent. (Kent, Com. on Am. Law, vol. 1, pp. 115-117; Wheaton, Elem. Int. Law, pt. 4, ch. 3, §1; Vattel, Droit des Gens, liv. 3, ch. 7, § 104; Bello, Derecho Internacional, pt. 2, cap. 7; Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 11; De Cussy, Droit Maritime, liv. 1, tit. 3, § 9.)

§ 2. Having already discussed the mutual duties of states, in times of peace, it will not be necessary here to make any extended argument to enforce those duties on the part of the neutral state toward other states with which it remains at peace, while they are carrying on hostilities toward each other. Its duty is that of entire impartiality, as well as neutrality. "Should a neutral government, without cause or provocation, complaint or warning, attack the possessions, or capture the ships of a belligerent power, all would denounce the aggression as a flagrant outrage on the laws of justice as well as of humanity; yet it is precisely this violation of justice, although in a milder form, that a neutral government is guilty, that, while it affects to maintain the relations of friendship with contending belligerent powers, furnishes to one effectual aid in the prosecution of the war, by a supply of ships, or arms, or munitions of war. With whatever pretext the government may veil its conduct, its acts are those of unprovoked and causeless, and, therefore, unjust hostility." A violation of neutrality is not limited to acts of positive hostility. If the neutral state assist one of the belligerents; if it grant favors to one to the detriment of the others; if it neglect or refuse to maintain the inviolability of its territory; or if it fail to restrain its own citizens and subjects from overstepping the just bounds of neutrality, as defined aud established by the law of nations,- it violates its duties toward the belligerent who is injured by such act or neglect, and is justly chargeable with hostility. Such conduct furnishes good cause for complaint, and, if persisted in, may become just cause of war. Sir Wm. Scott very justly remarked that

there are no conflicting rights between nations at peace; which remark may be applied, with truth, to every case of a violation of neutral duty. (Bello, Derecho International, pt. 2, cap. 7, §§ 1-3; Duer, On Insurance, vol. 1, pp. 531, 754; Harrat v. Wise, 9 Barn. and Cress. Rep., p. 712; Naylor v. Taylor, 9 Barn. and Cress. Rep., p. 715; Medeiros v. Hill, 8 Bing. Rep., p. 231; The Maria, 1 Rob. Rep., pp. 360, 361; Pitkin, Civil and Pol. Hist. of U. S., vol. 1, ch. 10.)

§ 3. But while the law of nations holds the government of the neutral state responsible for any act of positive hostility committed by its officers, or, in most cases, by its citizens and subjects, it is not in general held responsible for ordinary violations of neutral duty, (not in themselves of positive hostility,) by such citizens or subjects. The law in such cases imposes the duty upon the individual, and if it be violated, the penalty is imposed and enforced upon the individual, by the capture and confiscation of his property. Thus, the neutral state is not bound to restrain its subjects from engaging in contraband trade, or from violating the right of visitation and search, or the law of sieges and blockades; the law imposes upon the individual the duty of abstaining from such illegal acts, and, if guilty of a violation of this duty, he is the one to suffer the punishment due to the offence. Nor do the courts of a neutral country, as a general rule, enforce penalties for violations of neutral duty. As before remarked, there are certain obligations of neutralty, such as abstaining from acts of positive hostility, which the neutral state is bound to enforce with respect to its subjects; its own municipal laws in relation to such matters, are, of course, administered by its own tribunals. But such courts do not enforce penalties for carrying contraband of war, for a breach of blockade, or for violating the belligerent right of visitatation and search. All such cases are left to be adjusted by the prize tribunals of the belligerents. (Duer, On Insurance, vol. 1, p. 749; Webster, Dip. and Off. Papers, pp. 309, 310; Lee, Opinions U. S. Att'ys Genl., vol. 1, p. 61; Bello, Derecho Internacional, pt. 2, cap. 7; Heffter, Droit International, §§ 148, 172; Ortolan, Diplomatie de la Mer, tome 2, ch. 6; De Cussy, Droit Maritime, liv. 1, tit. 3, §§ 8, 9.)