one; question in what manner prizes should be dealt with which had been taken before the issue of commissions by the French Minister had been expressly prohibited. Mr. Hamilton thought that the prizes, having been taken in derogation of the sovereignty of the United States, the question of the restoration was a national but Mr. Jefferson contended that if the commissions issued by the French Minister were invalid, and the captures were therefore void, the courts. would adjudge the property to remain in the former owners; and there being an appropriate remedy at law, it would be irregular for the Government to interfere.1 It was finally decided to leave the British owner to such remedy as the Courts might give him, and the United States only acknowledged an international liability in respect of vessels captured after formal notice to the French Minister that the equipment of cruisers would be looked upon as an infraction of neutrality. An incessant practice of nations can neither be invalidated by a few unsuccessful attempts to change it, nor by the direct or implicit agreement of publicists, however great their authority may be, with the principle of the attempted change. There can be no question as to the nature or the authority of the practice which governs the relations of neutral and belligerent states on the one hand, and of belligerent states and neutral individuals on the other. The whole law upon the subject is cloven to the root by the distinction. In the following pages, therefore, I intend first to examine usages which affect states, and afterwards those with which individuals are concerned. 1 Marshall's Life of Washington, ii. 263-5. 27 PART II. CHAPTER I. GROWTH OF THE LAW AFFECTING BELLIGERENT AND neutral Middle 8. UNTIL the latter part of the eighteenth century Absence of the mutual relations of neutral and belligerent states the conwere, on the whole, the subject of the least determi- ception of nate part of international usage. At a time when duty in the the daily necessities of intercourse had forced nations Ages. to work out an at least rudimentary code for neutral trade in time of war, the relations of states themselves remained in a chaos, from which order was very slowly developed. Throughout the Middle Ages it was neither contrary to habit nor repugnant to moral opinion that a prince should commit, or allow his subjects to commit, acts of flagrant hostility against countries with which he was formally at peace. It may even be said broadly that at the end of the sixteenth century a neutral state might allow the enemy of its ally to levy troops within its dominions, it might lend him money or ships of war, and it might supply him with munitions of war. What the state might do its subjects might also do. The common law of nations V permitted a license which was checked only by Its growth. the fear of immediate war. But as it was the interest of everyone in turn to diminish the wide liberty of action which was exercised by neutral powers, most nations became gradually so bound by treaties on every hand as to make a rough friendliness their standard of conduct. For centuries innumerable treaties, not only of simple peace and friendship, but even of defensive alliance, contained stipulations that the contracting parties would not assist the enemies of the other, either publicly with auxiliary forces or subsidies, or privately by indirect means. They were also to prevent their subjects from doing like acts.1 The habits thus formed 1 The treaties are sometimes couched in general, and sometimes in very specific language. The following may be taken as fairly typical specimens:-In 1502, Henry VII. and Maximilian, King of the Romans, agreed quod nullus dictorum principum movebit aut faciet etc. guerram etc., nec dabit auxilium, consilium, vel favorem, publicè vel occultè, ut hujusmodi guerra moveatur vel excitatur quovismodo.' In 1505, Henry VII. and the Elector of Saxony covenanted that neither of the contracting parties 'patrias, dominia, etc. alterius a suis subditis invadi aut expugnari permittet, sed expressè et cum effectu prohibebit et impediet,' and neither of them alicui alteri patrias, dominia etc., alterius invadenti etc. consilium, auxilium, favorem, subsidium, naves, pecunias, gentes armorum, victualia aut aliam assistentiam quamcunque publicè vel occultè dabit, aut præstari consentiet, sed palam et expressè prohibebit et impediet.' The following treaties may be cited as giving sufficiently varied examples of the stipulations which were commonly made. It will be observed to how late a period it was necessary to insist upon them : reacted upon thought, and men grew willing to admit the doctrine, that what they had become accustomed to do flowed from an obligation dictated by natural law. By the latter half of the seventeenth View of the duty of century it was no longer necessary to stipulate for neutral neutrality in precise language. The neutrality article taken in dwindled into a promise of mutual friendship.1 But the sevenit would be a mistake to infer from this that inter- century; Treaties-continued. 1623. James I. and Michael Federowitz Grand Dumont, Corps states teenth The Treaty of Münster, in 1648, provided that alter alterius hostes præsentes aut futuros nullo unquam titulo, vel prætextu, vel ullius controversiæ bellive ratione contra alterum armis, pecuniâ, milite, commeatu aliterve juvet, aut illis copiis quas contra aliquem hujus pacificationis consortem à quocumque duci contigerit, receptum, stativa, transitum indulgeat.' Dumont, vi. i. 451. 1 The Peace of the Pyrenees (1659) has merely the general words, 'Les Roys, &c., eviteront de bonne foy tant qu'il leur sera possible le dommage l'un de l'autre.' Dumont, vi. ii. 265. Like language is found in the Treaty of Breda, between England and France, in 1667 (Dumont, vii. i. 41); in the Peace of Lisbon, between Spain and Portugal, in 1668 (Dumont, vii. |
