case of this latter kind, except where such boats are specially useful for military purposes.

§ 4. Let us pass to consider the rules by which the relations of belligerents to neutrals are to be regulated. The main difficulty here arises from the necessity of applying together two principles, each of which seems clearly acceptable if considered by itself, but which, when applied, come inevitably into a conflict that can only be settled by a more or less arbitrary compromise. It is clearly the duty of a belligerent to avoid injuring communities that are not at enmity with him, and their members; and it is clearly the duty of a neutral not to assist either belligerent in his warlike operations. And some deductions from either principle are obvious and uncontradicted. Thus, on the one hand, it is plainly the duty of a belligerent not to send his forces into the territory of a neutral government without the consent of the latter however convenient he may find this for the purposes of his military operations, and not to interfere. with any members of neutral states whom he finds outside their countries, unless they are aiding his enemy. And, on the other hand, it is the duty of a neutral state to prohibit its subjects from engaging personally in the service of either belligerent, and to take measures to prevent their doing this to any material extent; and also to be impartial in either closing or opening its territory to both belligerents equally.1

But in realising this impartiality difficulties arise: since regulations that are formally impartial, and are applied with strict equality to both sides, may practically give a decided advantage to one of the two belligerents, owing to his situation and circumstances. This being so, the safer course for the neutral is to refuse to both belligerents any use of his territory that may facilitate warlike operations; and this is what existing opinion would regard as his duty, so far as the admission of organised forces into his territory is concerned.2

1 It will generally be the neutral's interest to adopt the former of these alternatives, so far as the admission of armies is concerned; as the latter is more likely to bring it into collision with one or other of the belligerents.

2 "During the eighteenth century it was an undisputed doctrine that a neutral state might grant a passage through its territory to a belligerent army";

But this rule can hardly be extended to the exclusion of ships of war from the territorial waters of a friendly state: since such ships may be in pressing need of provisions or coal, which they cannot otherwise obtain, and which, therefore, it would be inhumane not to allow them to purchase. On the other hand, it is obvious that, if the privilege of purchasing such supplies in neutral ports were granted without limit, the neutral territory might practically furnish the belligerent with a base of operations, enabling him to carry on naval war from which he would otherwise have been precluded. The neutral, therefore, has the delicate task of limiting the hospitality it extends to ships of war to the minimum that humanity-considering the inevitable conditions of navigation—may seem to require. Similarly, common humanity requires that a neutral state should extend hospitality to a beaten army flying towards its frontier; but it must not allow them to start from its country to resume hostilities: it would seem to be the neutral's duty to disarm and "intern" them, unless they accept the position of prisoners of war released on parole.

More serious difficulties arise out of the relations of trade which bind together modern States in time of peace to a continually increasing extent. For, on the one hand, any trade, even in things remote from warlike use, may actually contribute importantly to enable a belligerent to carry on his war on the other hand, it would be a palpably exorbitant pretension in a belligerent to require all neutral States to put an end to their trade with his enemy. Only a Napoleon, at the giddy height of his predominance, could make such a claim; and it is not likely to be repeated. Some compromise, then, is needed between the claim of the neutral to

but "the most recent authors express a contrary opinion," and "no direct attempt has been made since 1815 to take advantage of the asserted right."

1 I refer to the famous "Berlin Decree" (1806), by which all nations were prohibited from all commerce or communication with the British Islands. But the retaliatory Orders in Council of the English Government (1807), proclaiming a blockade of France and the States under her sway, were scarcely less monstrous, except that they were retaliatory.

be undisturbed in his trade, and the claim of the belligerent that his enemy shall not be aided.

The best compromise seems to be that no private tradeexcept to some extent trade in the actual munitions of war should be regarded as an offence on the part of the neutral State of which the trader is a member; but that the belligerent should have a right to check such trade, and confiscate the wares, in all cases in which they are calculated to be of special utility to his enemy,—either (1) from the nature of the commodities, considered in relation to the enemy's needs, or (2) from the fact that his own military operations are directed to the cutting off of all supplies from some part of the enemy's territory. In the former case the belligerent would be allowed to confiscate the commodities as "contraband of war"; in the latter he would confiscate them on the ground of an attempt to break through a "blockade." Under neither head can we theoretically determine with any precision what the extent of the belligerent's rights ought to be; and there is considerable dispute as to their extent as fixed by usage. Even the recent practice of European and American civilised States shows considerable variation, both in what they claim as belligerents and in what they allow as neutrals,—and the two standards do not always coincide in the case of the same state. Thus, it is not agreed whether horses are contraband, or ship timber, and other materials of naval construction, or coal sent directly for the use of war-ships, or provisions and clothing sent for the use of soldiers. So again, though it is agreed that a naval blockade must be maintained by forces at least sufficient to render egress or ingress dangerous to the ship attempting it, it is not agreed how far the danger should go. On both points it is much to be wished that as definite rules as possible-which must necessarily be to some extent arbitrary should be arrived at by agreement among the leading States.

I have said that no trade should be regarded as an offence on the part of a State " except to some extent trade in the There is one special case in which

actual munitions of war."

it certainly seems best, in the interests of peace, that this trade should be definitely prohibited; ie. where the process of exporting munitions is easily perverted into the distinct violation of neutrality before noticed, which consists in allowing the neutral country to be used as a basis for military operations. The most important example of this is the trade in armed ships; since an armed ship sent forth as an article of export is so easily changed into a ship adequately equipped and manned for war, that a State which allows such export at the risk of the private exporter-like other contraband trade-will find it hard practically to prevent its country from being made the source of a hostile expedition.

In the above discussion I have said nothing of the formalities that should accompany the commencement of a war, -a point to which international jurists have given serious attention. I conceive that they have somewhat exaggerated its importance. It is no doubt desirable that any hostile act commencing a war should be preceded by a formal notice, and accompanied by a formal justification of the resort to violence; but it is more important that war should be really resorted to only when redress for wrong has been refused; and the process of asking for redress will involve a practical warning that war is impending in case of refusal.

§ 5. It remains to ask how far such regulations as I have sketched out are applicable to civil war. Let us consider first the relation between the belligerents-though it is not strictly an "external" relation. It is clear that the reasons above given for limiting the mischief of war in various ways, so far as it falls on combatants, apply equally where the war is between two parts of the same community, except in the one case of the treatment of prisoners. In this case the rule that restricts a belligerent's right over his captives, to that of detention for the purpose of disablement during the war, comes into conflict with the right of a government to treat rebels as criminals. It is admitted by all reasonable persons that it is the imperative duty of every government to punish wrongful violence directed against itself like other wrongful violence and even with peculiar severity, on

account of the widespread evils resulting from anarchy: and so long as other States are not prepared to intervene in a hostile way, they must allow a government contending against an insurrection to assume itself to be in the right, and therefore to treat the insurgents as criminals. The only question therefore is, whether the mere extent and strength of an insurrection may render it the duty of the government contending against it to accord to captive rebels the privilege of prisoners of war? I should be disposed to give an affirmative answer to this question; chiefly on the ground that the mere strength and extent of an insurrection must, generally speaking, be taken to show that a large number of persons regard it as justifiable; and, considering the variation and uncertainty of human judgments on questions of political justice, this widespread opinion is reasonably held to reduce very materially the culpability of individuals. Strong considerations of expediency — the danger of provoking reprisals, and of causing bitterness that would long outlive the war-tend to the same conclusion; and probably even the leaders of an insurrection that attained the dignity of a civil war would not now suffer any penalty beyond banishment and loss of property, at the hands of most modern governments.

No general rule, however, can be laid down for determining exactly when a government is wrong in refusing to captive insurgents the full rights of prisoners of war. It is somewhat easier to define the point at which they are entitled to the privileges of belligerents at the hands of neutrals; since in this latter case the question is simply one of military fact, and as such it is not unlikely to be implicitly decided by the established government of the divided community, before neutrals have occasion to consider it. For if this government claims the right to take any war-measure injuriously affecting the interests of neutrals—such as blockading ports or capturing contraband of war-it cannot reasonably complain that the insurgents, whom it has thus by implication declared to be belligerents, should be recognised as such by other States.

It is, indeed, possible that the government, to