Neutrality, in international law, the indifferent and impartial posture maintained by one nation with regard to others which are at war. " The neutral state," says Klüber, " is neither judge nor party." It may be the common friend of both belligerents, but may not favor either. The character of neutrality is generally impressed upon a nation only by the event of war, while in time of peace it may conclude offensive and defensive alliances, and in all respects arrange at its pleasure its relations with other states. Yet there may be what is called a permanent neutrality. Switzerland and Belgium by the existing arrangements in Europe, established in the case of the former by the declaration of the allied powers in 1815, and of the latter by the negotiations which established its independence in 1831, are to remain always neutral and independent of any complications which may in the future arise among the other European powers. These states, it is evident, cannot even in peace enter into any compacts or engagements which would be inconsistent with complete neutrality in case of war. - It is not a violation of neutrality to furnish one only of two hostile parties with ammunition or other war supplies, provided this be done in accordance with previous treaty stipulations.
Thus, by the treaty of 1788 with the United States, France secured the exclusive privilege of asylum in American ports for her privateers and their prizes. But in this case, as usually, such a qualification of neutrality, though clearly sanctioned by the law of nations, did not fail to provoke complaint and protest from the less favored power. It is not consistent with a neutral character to concede to one belligerent, to the exclusion of others, the liberty of raising land or sea forces within the neutral territory. This privilege the United States refuse to all belligerents alike, and the prohibition is declared by a permanent act of congress; and any attempt by a foreign power to obtain enlistments in this country would bo regarded as an unfriendly act, and if aided or connived at by its diplomatic representative would be deemed a justi-tication of a demand for his recall, as in the case of the British minister, Sir John Cramp-ton, in 1 1855. - The perfect inviolability of its territory is the clearest if not the chief among the rights of a neutral state. A belligerent therefore cannot attack his enemy on neutral ground, and, in spite of a condemnation by a prize court of the captor, the neutral power will restore to its owner property captured within its jurisdiction.
The neutral may refuse to all belligerents the privilege of passage over its domain, or must grant it, if at all, to all alike. It may forbid the entrance of war vessels and their prizes into its ports, although, in the absence of positive prohibition, the liberty to enter is implied. Our government has uniformly conceded this favor to the public ships of the hostile powers, without their prizes. To admit the entrance and sale of these in neutral ports is a favor which, in the opinion of eminent authorities, is hardly con-sistent with perfect neutrality, or with the dictates of true policy. As an illustration of modern practice in this respect, it may be added, that in the Crimean war Sweden and Norway and Denmark, adopting the same rules of neutrality, admitted into their ports the ships of war and of commerce of the belligerent parties, and accorded to them the facility of supplying themselves with all necessary stores and provisions not contraband of war, but for hade, except in cases of distress, the entrance, condemnation, or sale of any prize in any of the harbors of these kingdoms. - Whether the neutral can claim territorial immunity for its ships, whether in other words its flag shall protect the whole ship and cargo from the assertion of belligerent rights, has been, a much vexed question in international law.
The treaties concluded at Utrecht in 1713 had ombodied the principle that the character of the vessel should determine that of its cargo; and though the same principle had been introduced into frequent conventions, based upon these treaties, to which England had been a party, yet this power always refused to admit that express stipulations of this nature could change what it called the common law of nations in the premises. Except, therefore, when it was bound by special compacts, England has steadily maintained the integrity of the rule that enemy's goods on board a neutral ship are good prize of war. In 1781 the Baltic code of neutrality was first proclaimed by Catharine II. of Russia. One of its most prominent articles asserted the principle of the treaties of Utrecht, namely, that free ships should make free goods. The principal powers of Europe, excepting only England, acceded to the Russian rules of neutrality. The single influence of England against the code, however, was too great to be withstood, and it was abandoned, in 1787. An attempt to revive it in 1801 was equally unsuccessful, and for the same reason. In its general jurisprudence the United States has, almost of necessity, adopted the English rule.
But in its treaties, and particularly in those with American powers, it has generally inserted the more liberal principle that neutral ships shall make free goods. Since 178G England had generally asserted her belligerent rights, until after the beginning of the Crimean war, by a common declaration with her ally France, promulgated in April, 1854, she announced that for the present she "waived her right of seizing enemy property laden on board neutral vessels, unless it were contraband of war." At the conclusion of the war England gave a more formal assent to the principle which she had so long opposed; for the declaration which was signed at the congress of Paris in 1856 by the plenipotentiaries of all the great powers, contained the provision that the neutral flag shall cover enemy goods, with the exception of those contraband of war, and it may be supposed has fixed the maxim in the law of nations. The rule usually coupled with that just referred to, though the two have really no connection, namely, that neutral goods, except contraband, are not liable to capture though laden in enemy ships, is also included in the declaration of the congress of Paris. It was formally rejected by France, but other nations have generally observed it. - Subject only to slight and reasonable restrictions, the neutral may carry on its commerce with the hostile powers.
But plainly it must not furnish either with war supplies, nor indeed with any material which can directly contribute to the prosecution of hostilities. In the familiar phrase of the international law, its ships must not carry contraband. Further, they must neither break blockades, nor carry despatches for either party, nor in any other mode render direct assistance in the war. Finally, neutral ships must be always ready to prove themselves that which they profess to be, and must therefore be provided with papers sufficient to prove their nationality, and must submit to a reasonable exercise of the right of visitation. It is not possible to define contraband specifically, that is, to declare what particular articles will be so regarded in time of war. There can be no doubt, however, respecting things which can be used only in war, or respecting materials which are peculiarly fitted by their nature for warlike uses. On the other hand, things which cannot be employed in war are, it is equally certain, not contraband. But it is difficult to determine the character of articles which are ancipitis usus, of a double or indifferent nature, and serviceable as well in peace as in war, such as money, provisions, ships and materials for ships, and naval stores.
The decision will always be influenced by many considerations, as by the state and nature of the war, or by the highly probable destination of goods to a military use. Thus provisions, which prima facie are not contraband, will certainly be declared so when they are destined to a besieged town or blockaded port. The character of the port to which goods are bound may also be of consequence: whether, that is to say, it be a port of merely naval equipment, or one of general commerce. The changes which science has made in the needs and modes of warfare are also to be regarded, as well as the consideration whether the goods alleged to be contraband are or are not the produce of the country which exports them. Carrying official communications for a belligerent upon the public affairs of his state is a flagrant violation of neutrality. But to carry despatches from the enemy to his ambassador or consul in a neutral country is, generally speaking, no ground for condemnation, for the legal presumption is that the communication has reference to the commercial relations of the belligerent and the neutral.
In the case of the Trent, in 1861, a naval officer of the United States asserted the right to seize on a neutral ship the ambassadors of the enemy proceeding to the courts to which they were accredited; but the right was denied by Great Britain, and the government disavowed the act. It seems to be the better opinion that the contraband character of the ship or goods terminates with that passage in which the forbidden trade is intended or done, and does not affect the whole voyage. The owner of the contraband loses all, even the innocent goods which he has laden in the ship. Other shippers forfeit nothing. This doctrine of contraband implies rather necessarily the belligerent's right to search neutral ships for such articles as may contribute to the comfort and strength of the enemy. The law of nations has been in this respect that in time of war search may be made for contraband and for enemy's goods. The late modification of the former practice, by which, as we have already seen, the goods of the enemy in neutral ships are now exempted from seizure, must tend, it would seem, to reduce the application of the law of search to the case of contraband alone.
Some powers have defeated or hoped to defeat the right of search for contraband goods by forbidding their subjects to carry them; and sometimes treaties have provided that, in the case of ships under convoy, the declaration of the commander should suffice to exempt the ships in his charge from search. - A further restriction in force on the commerce of the neutral consists in his incapacity to trade to blockaded ports. To constitute a violation of blockade there must be first an actual blockade by a force sufficient to maintain the same; then there must have been proper notification of it; with these must concur some act of violation, either by going in or coming out with a cargo laden after the commencement of the blockade or an attempt so to do. Sir William Scott once held that a temporary absence of the blockading squadron, from being driven off by a storm or other accident, did not suspend the operation of the blockade. The French publicists controvert this doctrine, as unwarranted by the general principles of international law.
But the law as Sir William Scott declared it is probably at present the law of England. The English and French declarations of 1854, however, speak of "effective blockades, which may be established with adequate forces." Some exception has been taken in the United States to the rule which forbids the departure of a vessel laden after the blockade was known. In a communication to Mr. Buchanan, American minister in London, in 1854, Mr. Marcy urges that, having visited the port in the common freedom of trade, the neutral vessel ought to be allowed to depart with a cargo, without regard to the time when it was received on board. This relaxation of the law of blockade will be hardly yet admitted in the general practice of nations; but, especially in our treaties with the Central and South American republics, it has assumed the form of familiar stipulation. - The principles of the international law of neutrality assume a peculiar significance in the law of marine insurance. In marine policies the ownership of the property is usually the subject of express warranty, and underwriters are thus informed of its liability to or freedom from war risks. The neutrality itself may be sometimes expressly warranted.
In these cases the warranty is construed to mean, first, that the ship or cargo is actually owned by citizens of a country not at war when the risk begins, and secondly, that with the property there shall go all those usual documents and precautions which prove the neutrality and protect it from belligerent risks. The bill of sale of the ship, the sea letter or customary certificate of nationality, the register of the vessel, the charter party, shipping papers, the log book, and in general all the documents which usually state the national character, and especially the flag, must conform to the warranted neutrality of the ship. The law holds, too, that if a vessel exhibit only false papers when she is captured, there is a breach of the warranty, though she have on board the proper papers of her nation, and have the right to carry false papers, be-cause she must not only have the proper documents, but must use them at a proper time and in a proper way. Yet it seems that simulated or false papers may not only be carried when leave is expressly given, but when a usage exists to carry them, which is or should be known to the insurer. The warranty of the neutrality of a ship is broken if a belligerent own any part of it.
In regard to goods the rule is different, and the warranty is held to extend only to the interest of the insured, and is not broken by the fact that a part of the cargo not insured is not neutral. But when the interest insured covers the whole cargo, the law will regard the real ownership; and therefore property held by a neutral by a legal title indeed, but for the benefit of and in trust for a belligerent, is belligerent property. If neutral goods are shipped in time of peace to a consignee who has not ordered them, so that the property would not vest in him till the goods were received, in case of capture they are considered as the property of the consignor. Hut if they are shipped by a neutral after the war begins, and under a contract made during peace but in contemplation of war, and to be at the risk of the sendee until delivery, they are put on the same footing as if the contract were made during war. If a subject of a bel-ligerent power ship goods to a neutral which have not been ordered by him, so that the belligerent retains control over them, they are considered as his property. The mere right of the belligerent seller to stop goods in transitu on the insolvency of the vendee is not such an interest as would make the goods belligerent.
The warranty of neutrality requires such trade, conduct, and course of transaction as shall be in conformity and adaptation to this warranty. Therefore, if the neutral interests or property are indistinguishably mixed up with belligerent interests or property, they become themselves liable to all the incidents and effects of a bel-ligerent character. So resistance of a search when rightfully demanded, an attempt at rescue, seeking belligerent protection or receiving it. are all breaches of the warranty of neutrality, because they belong to the conduct of a belligerent. It is a sufficient compliance with the warranty, that a vessel is neutral according to the law of nations; and for a condemnation for breach of ordinances which are contrary to the law of nations, the underwriters are still liable.