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belligerents, the rights and obligations which war acquires against and imposes upon them,—what are they?
1379. Had, for the last century, the only wars of Europe raged between petty maritime states, while all the great nations were neutral, and troubled in their commerce by the puny combatants, a different practice of nations, and in that sense a different code of international law, would have prevailed. We should have heard louder proclamation of neutral than of belligerent rights. But whoever the combatants, whatever usurpation there may have been upon them, the rights are unalterable and the same.
1380. A nation can neither acquire to itself, nor confer on its adversary, any right against the neutral by making war; otherwise it would achieve, however feeble, a conquest for itself and its opponent over all neutral nations, before either had captured a shallop or won an inch of territory. Except to the extent of conventional obligations, which we have discussed under the head of confederacy, the neutrals maintain as to each of the belligerents, and each of the belligerents maintains as to the neutrals, the same amicable relations as before.
1381. The neutral may meditate on the justice or injustice of the controversy; the neutral government and all its subjects may sympathize with one of the belligerents and detest the other, and talk about their conduct and affairs; but in their own conduct they must act as if the cause of each of the belligerents were equally just.
1382. The rights of the neutral nation are,—that her sovereignty shall not be infringed or insulted, and that neither her commerce, nor any other of her amicable relations shall be disturbed, except so far as they interfere with the legitimate conduct of the war. The rights of each belli. gerent are—that the neutral shall maintain towards it the same amicable relations as before, and that neither the neutral state nor its subjects shall aid the enemy in the article of war. The neutral must not attempt to aid each equally, for the equalization of such assistance is impossible. Yet emergencies do occur in which some benefits of a military character cannot be withheld; where they occur, the neutral must be impartial to both, and not deny to one that which the other obtains.
1383. Some of the rights of the neutral nation belong to the people as individuals, and some to the state; 80 some of its duties are to be observed by the citizens and some by the state. Neutral rights and duties may be classified as rights and duties of the state, and rights and duties of the subjects. And, as rights and duties are reciprocal, this classification will exhibit many of the rights and duties of the government and people of the belligerents; and we shall have to consider the consequences of their conflicting rights, under the heads of contraband, blockade, search, and capture.
SECTION 2. RIGHTS AND DUTIES OF THE STATE.
1384. The neutral public ships have the same right to visit the waters and ports of each belligerent as before the war; but that right, previously subject to qualifications, may be further qualified through an increased apprehension of danger on account of the strength of the neutral force, or the uncertainty of political relations. The belligerent is entitled in such case to confine their admission to certain ports, and under reasonable restrictions, or, if necessary, to entirely exclude them from his coast, except when driven upon it by distress. But when they are admitted they must be entertained with the former respect.
1385. This respect involves the total exemption of public vessels from visitation and search. Far more are they exempt from that indignity on the open sea, where they are as independent as the belligerent ships. Visitation for the purpose of inquiry merely, may, under circumstances, particularly in the case of convoy, be conceded, but it cannot be enforced. Even in such case the signal must be that of invitation, not of command. A blank cartridge may be fired, lest the signal of the flag may have been unobserved; but the firing of a shot at, or the menacing pursuit of a public vessel cannot be endured. Search of the neutral ship of war can in no case be permitted,-it is derogatory to the independence of the state. Search of private ships under convoy may be conceded on conditions to which we shall refer.
1386. The right to maintain and protect the national commerce is the right of the state; the right to enjoy it is that of the subjects.
1387. The state is not a trader; even were its prince a merchant, his mercantile vessels and merchandise would be private merchandise and private ships, until he chose to give them a military commission. The state cannot carry contraband; the state cannot be guilty of breaking blockade. If the state furnish, whether by gift or sale, munitions of war to either belligerent, it is not contraband, but military assistance, a breach of neutrality, a just ground for war; if the public armed ships of the state force, or attempt to force, their way through the blockade, it is irregular war; if they clandestinely escape through the blockade, they cannot be pursued or captured, but the state must make reparation for the wrong, or it affords a just ground for war.
1388. So that which would be contraband on board private unprotected merchant ships, when conveyed in merchant ships under the protection of the public vessels of the neutral, constitutes military supply, and a violation of belligerent rights. The ships which sail under convoy, except in conformity with conventions, are not independent traders, but members of a national fleet; they are responsible to their sovereign for their cargoes and conduct, and the sovereign is responsible to the belligerent state as though their misconduct were his own.
1389. Convoy.—Subject to the undertaking of such responsibility, the neutral nation is entitled to take her commerce under her protection and her flag as long as it traverses her own waters or the open sea. Ships are not the independent creatures which some writers have asserted; they are subjects of their country wherever they go, amenable to and entitled, so long at least as they obey it, to the protection of their state. Were it otherwise, every vessel might wage an independent warfare, and the nationality to which belligerents appeal would not exist.
1390. A neutral nation is entitled to demand the absolute recognition of her sovereignty, and to protect her commerce with all her power, to extend her ægis over her private vessels, and to prohibit visitation and search. She takes upon herself a duty towards each belligerent for every vessel, for every member of their crews, and for every portion of every cargo, that there shall be no offence, and that the expedition shall not convey to the adversary any military aid. If that duty is violated, the responsibility to the injured belligerent, as we have already observed, rests upon the state.
1391. So great is the inconvenience, so difficult, so almost impossible is the security for the performance of the duty it undertakes, so full of suspicion is a convoyed fleet with total immunity from search, that the state, anxious to maintain her neutrality and character, will not resort to this proceeding except in extremity, and when prepared to vindicate her conduct by open war. But if there is just cause, by reason of vexation in the exercise of visitation and search, or in the imposition of an unlawful blockade, or in the unjustifiable condemnation of her vessels, or in the refusal of indemnity to those which have been captured without having given offence, the neutral has a right to place her merchantmen under the protection of her flag, to forbid the interference of the marauding belligerent with her ships, and to summon all the insulted neutrals to her aid in maintaining the neutral law. We need not stay to inquire to what extent the armed neutralities of the North were justified, or whether they in any respects exceeded the vindication of
neutral rights. The first example of such a neutrality was afforded by Rhodes.
1392. The exercise of this right obviously brings the nations upon the verge of hostilities, as each will act upon her own construction of international law, or, perhaps, her appreciation of her opportunity and power. The neutral nation must therefore offer the belligerent every practicable guarantee. Her laws against the export of contraband must be rigorous, and vigorously and impartially enforced. The examination of the vessels under convoy must be rigid and frequent; every ship must be identified, her character, her conduct, her cargo carefully recorded and vigilantly watched; and the whole fleet must sail, and, so far as possible, continue under the immediate protection and surveillance of the vessels of war. The commander of the convoy must hold frank and candid communication with the commanders of all the belligerent vessels who may inquire as to the destination and cargoes of the fleet.
1393. The question of the right of sailing under the convoy of her own nation is not a question for the prize court, but a question of politics, to be determined by the state : until the state has resolved to make it, and made it, a cause of war, the prize court may not usurp its office or treat the act as a hostile act, or in any manner interfere. The question is not with the neutral vessel, but with the neutral state. So long as the governments are at peace, to capture the neutral ship under convoy is an act of piracy, to condemn her is an outrage upon international law. Notwithstanding the trumpeting with which it was paraded, the condemnation of neutral vessels, in the case of the Maria, for sailing under the convoy of their national ships, covered the English prize court with disgrace.
1394. When it is adopted under conventions, the extent and mode of relieving the merchant vessels from search is carefully explained. It is generally required that they shall be under convoy of a ship well informed of all their charac