Page:Encyclopædia Britannica, Ninth Edition, v. 13.djvu/208

 INTERNATIONAL LAW stipulation; 1 (2) that in matters not relating to war the neutral should not refuse to one belligerent &quot; merely because he is at war with the other what she grants to that other.&quot; The obligation of impartiality extends to prohibiting the use of the neutral territory for the purpose of fitting out warlike expeditions, equipping vessels, and enlisting men. The right and duty of neutral nations in this respect were first recognized and enforced by the United States, long the chief representative and champion of neutral rights. An Act of Congress passed in 1794, re- enacted 1818, makes it a misdemeanour for &quot;any person within the jurisdiction of the United States to augment the force of any armed vessel belonging to one foreign power at war with another power with whom they are at peace, or to prepare any military expedition against the territories of any foreign nations with whom they are at peace, or to hire or enlist troops or seamen for foreign military or naval service, or to be concerned in fitting out any vessel to cruise or commit hostilities in foreign service, &c.&quot; The same principles inspire the English Foreign En listment Acts which have been pronounced by the well- known writer &quot; Historicus &quot; 2 to be a transcript of the American law. The 59 Geo. III. c. G9 was the first Act known by this title ; the statute now in force is the Foreign Enlistment Act, 1870 (33 & 34 Viet. c. 90). These Acts are correctly described as municipal statutes, based indeed on international law, but intended for the protection of the neutral state rather than the belli gerent. 3 The purely international obligations of the belligerent have been recently the subject of protracted discussions between England and America, arising out of the depreciations committed by Confederate cruisers on American commerce. The treaty of Washington, 1871, by which all these questions were referred to arbitration, directed the arbitrator to apply to them -not only the rules of the law of nations but three new rules, which England at least could not admit as being in force when the claims arose, but which she acceded to as an evidence of her desire to strengthen friendly relations with the United States. Both parties agreed to abide by these principles in future, and to invite other nations to accede to them. The rules were that a neutral government is bound (1) to use due diligence to prevent the fitting out, arming, or equip ping within its jurisdiction of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a power with which it is at peace, and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been adapted in whole or in part within such jurisdiction to warlike use ; (2) not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of renewal or augmentation of military supplies or arms or the recruitment of men ; and (3) to exercise due diligence in its own ports and waters and as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties. These rules, which we believe to be substantially just, have brsen unduly discredited in England, partly by the result of the arbitration, which was in favour of the United States, partly by the fact that they were from the point of view of English opinion ex post facto rules, and that the words defining liability (&quot;due diligence&quot;) were vague and open to unforeseen constructions, for 3 Pliillimore considers that such stipulations made in time of peace are wrongful and incompatible with sound neutrality. The fulfilment of them would be an attempt to do the act of a belligerent and yet claim the immunity of a neutral. 2 Sir William Yernon Harcourt. 3 Letters on so /ne Questions of International Law, by Historicus, &quot; On belligerent violations of neutral rights.&quot; example, the construction actually adopted by the Geneva tribunal that due diligence ought to be exercised in propor tion to the belligerent s risk of suffering from any failure of the neutral to fulfil his obligations. 4 One important principle, to some extent challenged in these controversies, is established beyond dispute. Whatever the obligations of a neutral in any given case may be, failure to fulfil them is not excused either by defects of the municipal law or by successful evasions of that law. The neutral state ought to make its laws conformable to its international duties, and to compel its subjects to obey them. If it fails in either respect, and injury to belligerents is the consequence, it is answerable under the law of nations. So far we have been dealing with the rights and duties of neutral states. Neutral commerce in times of war is subject to restrictions which affect individuals rather than states, such as the rules relating to blockade and contra band of war. Pirates and savages or uncivilized tribes have been men tioned as excluded from the benefits of international law. The municipal law of most countries assumes jurisdiction over the former wherever they may be found (see PIEACY). With regard to the latter, it cannot be said that civilized nations have observed any rule of law or morality whatso ever in their dealings with them. The overflowing popula tion of European nations has been compelled to seek an outlet in regions occupied by men in a low state of civili zation, neither capable nor desirous of making a beneficial use of them. It is not to be pretended for a moment that the Europeans were bound to leave the continent of America to its original Indians, for even civilized communities are not permitted to claim dominion over territory which they do not really occupy. But the early European settlers founded their claims on some authority, generally that of their own sovereigns, which recognized no right whatever in the original occupants. They were described in patent deeds as &quot; heathens and infidels,&quot; and a colour of religious duty was thus imparted to the most barefaced schemes of spoliation. Wheaton cites the authority given by Henry VII. to Cabot and by Queen Elizabeth to Sir Humphrey Gilbert to seek out foreign and barbarous lands &quot; not actually possessed of any Christian prince or people,&quot; and to hold, occupy, and enjoy the same. Vattel, who strongly insists upon the right of civilized people to reduce the ineffective occupation of savages to the narrowest possible limits, warmly commends the conduct of William Penn and the English Quakers in purchasing from its savage occupants the country they wished to inhabit. The colonizing nations, says Wheaton, were agreed in one thing, viz., in &quot;almost entirely disregarding the right of the native inhabitants.&quot; Settlements of this kind are not now made from European countries, and public opinion would no longer sanction the pretensions on which they were based. But between the European settlements already established and the native tribes by which they are surrounded the same disregard of the rights of the weaker party is only too common. So far as England is concerned, the temptations of her colonists to commit injustice in their dealings with inferior races are counterbalanced by an active public opinion at home. In the conduct of hostili ties against savages, civilized troops would not be regarded as bound by the international law of war; and it is difficult to conceive of any restraint other than that of their own sense of decency and humanity. In conflicts between civilized communities the employment of savages on either side is condemned for this very reason. In self-defence the troops opposed to them must resort to practices con demned by the opinion of the civilized world. 4 See Mountague Bernard s British Neutrality.