so when granted to their own citizens to lead them to commit acts contrary to the duties they owe to their country. 1 Somewhat later he writes to Mr. Morris, American Minister in Paris, 'that a neutral nation must in all things relating to the war observe an exact impartiality towards the two parties. that no succour should be given to either, unless stipulated by treaty, in men, arms, or anything else directly serving for the war; that the right of raising troops, being one of the rights of sovereignty, and consequently appertaining exclusively to the nation itself, no foreign power or person can levy men within its territory without its consent; that if the United States have a right to refuse the permission to arm vessels and raise men within their ports and territories, they are bound by the laws of neutrality to exercise that right and to prohibit such armaments and enlistments.'2 Taking this language straightforwardly, without forcing into it all the meaning which a few phrases may bear, but keeping in mind the facts which were before the eyes of Mr. Jefferson when he penned it, there can be no doubt that the duties which it acknowledges are the natural if not inevitable deductions from the general principles stated by Bynkershoek, Vattel, and De Martens; and there can be as little doubt that they had not before been frankly fulfilled. To give effect to the views then stated, instructions were issued to the collectors of customs scheduling 'rules concerning sundry particulars which have been adopted by the President as deductions from the laws of neutrality established and received among nations.' Under these, 'equipments of vessels in the ports of the United States which are of a nature solely adapted for war,' and 1 June 5, 1793. American State Papers, i. 67. 2 Aug. 16, 1793. American State Papers, i. 116. the enlistment of 'inhabitants' of the United States were forbidden. On the other hand, it was permitted to furnish merchant vessels and ships of war with equipments of doubtful nature, as applicable either to war or commerce.1 The trial of Gideon Henfield for cruising in one of the privateers commissioned by M. Genêt, soon proved that the existing law was not strong enough to enable the Government to carry out neutrality in the sense in which they defined it. 2 An Act was accordingly passed by Congress to prevent citizens or inhabitants of the United States from accepting commissions or enlisting in the service of a foreign state, and to prohibit the fitting out and arming of cruisers intended to be employed in the service of a foreign belligerent, or the reception of any increased force by such vessels when armed. 3 The policy of the United States in 1793 constitutes an epoch in the development of the usages of neutrality. There can be no doubt that it was intended and believed to give effect to the obligations then incumbent upon neutrals. But it represented by far the most advanced existing opinions as to what those obligations were; and in some points it even went further than authoritative international custom has up to the present time advanced. In the main, however, it is identical with the standard of conduct which is now adopted by the community of nations. 1 Appendix iii. to Report of Neutrality Law Commissioners, 1868. 49. 2 Wharton's State Trials, p. 3 Statutes at Large of the United States, ed. by Peters, i. 381. 47 CHAPTER II. THE EXISTING LAW AFFECTING BELLIGERENT AND NEUTRAL STATES. General principles of neutral at the end of the eighteenth § 14. FROM the somewhat incoherent practice followed by belligerents and neutrals with respect to each other during the eighteeenth century, three principles disengage themselves with clearness. The neutral state was bound not to commit any act favouring one of two belligerents in matters affect- century. ing their war, and it was in turn incumbent on belligerents to respect the sovereignty of the neutral. It was also recognised, though less fully, that it is the duty of a state to restrain foreign governments and private persons from using the territory and resources of a country for belligerent purposes. In these principles are involved every obligation under which a neutral state can lie, and almost every right, the possession of which is important to it. But the foregoing sketch has shown that they were not always observed, and still more that they were not made to yield all the results which logically flow from them. Those results which were in fact reached were not entirely consistent with each other. During the present century expansion of trade and quickness of communication have given birth in certain directions to new difficulties in the relations of neutrals and belligerents, while at the same time the vitality of some of the older customs has never been Their rela modern tions to doctrine. Whether troops can treaty. tested in action. Hence a certain number of doctrines appear to survive which can hardly in any true sense be said to live; and on the other hand, new applications of the old principles have continually to be made to complex facts, in dealing with which there is no strict precedent, and sometimes a very doubtful analogy. The most convenient mode therefore of treating the present relations of neutral and belligerent states will be, after clearing away a few cases of effete doctrine, to take the applications of the principles which have been laid down in the order of their complexity. In the principles themselves there is never any difficulty; the only question to be answered is, whether or not they ought to be applied to a certain state of facts. § 15. Although, during the present century, no be furnish- nation has given military assistance to an ally while ed under professing to maintain neutrality, and although no government would probably now venture to conclude a treaty with that object, there are text writers, recent or of existing authority, in whose works the opinion lingers, that a treaty made before the outbreak of war justifies the gift of such assistance and shelters the neutral from the consequences of his act. According to Manning, the custom is 'directly at variance with the true basis of neutrality, but it has now been established by the habitual and concurrent practice of states, and is at the present day an undisputed principle of the European law of nations.' Kent and Wheaton are equally positive as to the law and more blind as to the moral aspect of the case; and the doctrine is reasserted in the more modern work of M. Bluntschli.1 1 Manning, Commentaries on the Law of Nations, p. 168. Kent, Comm. Lect, vi. Wheaton, Elements of International Law, pt. iv. chap. iii. § 5. Bluntschli, § 759. It is impossible to ignore the authority of these writers, but they cite no later precedent than that of the Danish loan of troops to Russia in 1788; it is even doubtful whether the facts of that case are not more against than in favour of the conclusion which they are brought to establish; and no nation is now bound by any like obligation. The usage is not therefore upheld by continuing practice, and it is not in conformity with legal principle, by which, or by practice, it could alone be rendered authoritative. It is granted that the acts contemplated would, apart from prior agreement, be a violation of neutrality as now understood, and it is unnecessary to argue that a prior agreement in no way affects the character of acts with reference to a non-consenting third party.1 loans by indivi ble. § 16. It is usually said that a loan of money to Whether one of the belligerent parties is a violation of neu- neutral trality. That it is so, if made or guaranteed by the duals are neutral state, is abundantly evident. But it is diffi- permissi cult to understand why modern writers repudiate analogy and custom by condemning the negotiation of a loan by neutral subjects under ordinary mercantile conditions. M. Bluntschli says that the neutral state must abstain from making loans for purposes of war, and adds that the rule is equally applicable to loans negotiated by private persons. Sir R. Phillimore uses language not easily to be reconciled with his emphatic assertions of the right of a neutral subject to trade. Calvo, while agreeing that loans during war are illicit, will not admit that the neutral government is able so to control the acts of individuals in such matters as to be held responsible for their consequences.2 But outside the boards of works 1 The above view is taken by Phillimore, vol. iii. § 138; Calvo, § 1062; and Heffter, Le Droit International de l'Europe E (Ed. 1873), § 117. 2 Bluntschli, § 768; Phillimore, iii. § 157; Calvo, § 1060, Wheaton, Manning, De Martens, |