페이지 이미지
PDF
ePub

hurt our friend. If therefore two fleets fight in the open sea, I do not pretend that the conqueror may not justly pursue the conquered fleet, even though it should be driven to the territory of a neutral. But I approve the direction of the statesgeneral in their decree of the 10th of October 1652, to abstain from violence in the port itself, because violence could not be done there without danger to the neutral. On this principle it is not lawful to begin an attack on the sea near the land, within shot of the cannon from the fortresses, but it is lawful to continue an attack already commenced, and pursue the enemy into a jurisdictional sea even close to the land, or into a river, bay or creek, provided we spare the fortresses, though they should assist the enemy, and provided there be no kind of danger to our friends.

From facts which afterwards took place^, the states-general appear to have approved even thus much; for when in the year 1654 a Dutch commander met an English vessel on the high seas and pursued her flying into the port of Leghorn, where he took herat the moment she was coming to anchor, the grand duke of Tuscany complained of it to the statesgeneral, but we read that he complained in vain.* He, however, afterwards took satisfaction, by condemning the Dutch vessel that had made the pursuit and occasioned the capture of the English one.f Again, when the Ostenders had fired at a Dutch ship which was pursuing an English vessel into the port of Ostend, the states-general^ complained of it to the court of Spain as of an illegal act, because the Dutch ship had not fired at the English vessel in the port of Ostend. But this reason is not good, except to aggravate the injury done to the Ostenders, for it is not of any consequence what kind of hostility you commit on your enemy, but whether you attack him in a hostile manner. Upon the whole, it appears that the states-general approved both the pursuits that I have mentioned, because the force was begun before, and was only continued.

[ocr errors]

The law is the same at land as it is on the sea; so that there as well as here we may justly pursue an enemy flying from a recent fight into the dominion of anc her. I think the statesgeneral acted in conformity with this opinion when they decreed, in 1653,* that the Lorrain soldiers, who had ravaged the Dutch dominions, might be pursued even into the dominions of the king of Spain; but this cannot be defended, unless it is a fresh pursuit from a conflict or devastation immediately preceding. Otherwise, we may not any more make use of the territory than of the port of a friend, to destroy our enemy. And the states-general very properly, at the request of the king of France, who was at peace with the king of Spain, forbade upon pain of death, that any one should commit hostilities against the Spaniards, in the dominions of the king of France.^

The states-general also justly complained of the Spaniards, when in the year 1666, those of Munster passed through their territory to commit depredations in the dominions of the states-general, and they demanded of Spain an indemnity for the damage which they had suffered from them. This demand:}: might have been just, if the Spaniards had willingly and knowingly permitted those of Munster to pass through their territory, in order to go and commit depredations; but it does not any where appear that the case was so. If they knew it, it was their duty to prevent any hostility being committed against their friends from their territory.

Therefore I do not approve of the conduct of those of Wolffenbuttel, who, in the year 1700, being, as is said, neutral, permitted the Saxons to commit depredations from their territory on those of Lunenburg, and in like manner permitted the allies of the Lunenburgers to kill the Saxons. At the utmost it is lawful, after a recent fight, to pursue the flying enemy into another's dominion; for the same reason that Philip II. king of Spain, by the seventy-sixth section of his criminal edict of 1570, gave permission to pursue a criminal immediately and flagrante delicto into a territory not our own. But it is one thing to begin

• Aitz. 1. 33. f Aitz, 2.—-% Aitz. 1.46.

a hostility, and another to pursue the force while the thing is yet warm. For it is not a new doctrine, that an act lawfully begun may be continued where it would not have been lawful to give it a beginning. In short, it is not lawful to begin force within the territory of a neutral, but if begun out of that territory, it is lawful to continue it there in the heat of action, dim fervet opus.

Thus it seems that this distinction may be made and contended for without absurdity. Yet I have never seen it mentioned, either in the writings of the publicists or among any of the European nations, the Dutch only excepted. Nevertheless, reason both persuades and commands it, and' it is made use of in other analogous cases. If we attend to it, we shall without difficulty decide on the following fact: A Spanish ship pursued by a French ship (the two nations being at war) fled into Torbay, was run aground there, and concealed her cordage, tackle, sails, &c. in the houses of the inhabitants. The French mariners went on shore and took those articles from the houses they were in, and carried them on board of their own ship. Now was it lawful for the French to attack the houses of the English, and to take away the things that were protected there? It could not be done without injury to the English; therefore the king of England in the year 1668 very properly ordered every thing to be restored, and recommended the prosecution of the national injury to his ambassador in France, as we are told by Aitzema.* The same author relatest other complaints of the English for the violation of their ports by the French, and informs us of the damages which they paid therefor, but I shall not particularise those cases; the reader will judge of them by attending to the distinction which I have just now suggested, if he is as satisfied with it as I am.

[ocr errors][ocr errors]

CHAPTER IX.

Of Neutrality.

T CALL neutrals (non hostes*) those who take part with .*, neither of the belligerent powers, and who are not bound to either by any alliance. If they are so bound, they are no longer neutrals, but allies. Grotius has called them middle men, (medii) 1. 3. De J. B. ac P. c. 9. Of these it is asked what is lawful for them to do or not to do between two belligerent parties? Every thing, perhaps it will be said, that it was lawful for them to do or to omit doing when they were all at peace, for the state of war does not seem to extend farther than to those who are at war with each other. Does reason require, will you say, that the enemies of our friends should be considered as our own enemies? If not, why shall not our friends carry to their friends, though they be our enemies, those things which they were in the habit of carrying to them before? nay, arms, men, and every thing else? It militates, indeed, against our own advantage, but we are not considering what is advantageous, but what is reasonable. The injury suffered is alone the cause of the war, and it is evident that that injury has no effect beyond the person of him who has suffered it, except, that if he is a prince, it extends also to all his subjects, but not to those who are not subject to his dominion. Whence it must follow, that my friend's enemy is not my enemy, but that the friendship between us subsists precisely as it did before the war.

• It is remarkable that there are no words in the Latin language which precisely answer to the English expressions, neutral, neutrality; for neutralis, neutralitas, which are used by some modern writers, are barbarisms, not to be met with in any classical author. These make use of the words amid, medii, pacati, which are very inadequate to express what we understand by neutrals, and they have no substantive whatever (that we know of) for neutrality. We shall not here inquire into the cause of this deficiency. Such an inquiry would carry us too far* and doeB not comport with the object of this work;. , . T,

We find that the counsellors of the states-general adopted this doctrine, when on the 3d of March 1640 the states issued an edict on their report, declaring that agreeably to ancient custom and to the law of neutrality, it was lawful for neutrals to fight for us or for our enemies as they might think proper. And when the Spaniards, on the 30th of March 1639, issued an edict declaring that if any of the people of Liege had enlisted in the service of the states-general, they should return within one month, having first taken an oath that they would no more fight against Spain or the house of Austria, otherwise, every pardon would be denied to them, a similar edict was made in retaliation on the 3d of March 1640, in the name of the states-general, of which I remember that it was to be in force as long as that of Spain, which in the said edict of the 3d of March 1640 was represented as an innovation, entirely devoid of reason, and stigmatized in these words: "an unreasonable edictsuch novelty and unreasonablenessso long as the Spaniards shall continue in force their unreasonable edict"tic. Such also was the opinion of certain Dutch citizens, expressed in the states of Holland, on the 26th of February 1684, when they urged the sending of auxiliary troops to the Spaniards, to be employed against the French, which they said could be done without injury to the peace then subsisting with France, salva pace et amicitid cum Francis.

But certainly this opinion is not to be approved, if we speak of those who are simply neutrals. It is their duty to be every way careful not to intermeddle at all with the war, and not to do more or less justice to one party than to the other. It is the same thing that we read in Livy, b. 35. c. 48. Bello se non interponant, let them not intermeddle with the war, that is to say, in causa belli, as to what relates to the war, let them not prefer one party to the other, and this is the only proper conduct for neutrals. I do not know whether what Grotius says, De J. B. ac P. c. 7. § 3., will be satisfactory: "The duty of those, says he, who abstain from the war, is to do nothing by which he who supports an unjust cause shall be made stronger, or whereby the motions of him who carries on a just war may be impeded." If I judge

« 이전계속 »