PART IV.

THE LAW OF NEUTRALITY.

CHAPTER I.

THE NATURE AND HISTORY OF NEUTRALITY.

§ 243.

NEUTRALITY may be defined as The condition of those states which in time of war take no part in the

contest, but continue pacific intercourse with the belligerents.

The definition of varied elements

Neutrality. The

which have gone to form its law.

The Law of Neutrality contains some of the oldest and some of the youngest chapters of our science. We have in it rules that have been observed for ages, and rules that have been developed in our own time. Some of its customs have gained authority from long usage, and some are even now shifting and uncertain. It sets forth principles that have been consecrated by general assent, and principles that are still warmly debated and fiercely decried. High ethical considerations have moulded some parts of it, while others have arisen from the conflict of opposing self-interests. Starting from small beginnings it has grown with the growth of the idea that peace and not war is the normal condition of mankind, till now it forms the most important, if not the largest, title of the interna

tional code. He who reads its pages aright will find therein the proof that, by making war difficult and neutrality easy, nations may be led to take that "true road to a perpetual peace "1 which all lovers of humanity desire to see them tread.

Neutrality is in a sense the continuation of a previously existing state. By going to war belligerents alter their condition; but the powers who choose to be neutral remain as they were before. It might be thought, therefore, that their international rights were unchanged; and so far is this the case that the legal presumption is in favor of identity and continuity. Unless proof to the contrary is shown, neutral states and their subjects are free to do in time of war between other states what they were free to do in time of universal peace. But International Law has affixed to the state of neutrality certain rights and obligations which do not exist when there is no war. Neutral governments may regulate the delivery of certain articles to belligerent cruisers enjoying the hospitality of their ports. The supply of certain other articles they are bound to prohibit altogether. They have the right to enforce respect for the neutrality of their waters, and they are under an obligation not to allow their territory to be used for the fitting out or recruitment of armed expeditions in favor of either belligerent. Similarly the commerce of neutral individuals with the belligerents is subject to certain restrictions which do not exist in time of peace, and if they are disregarded the neutral trader is liable to severe penalties at the hand of the belligerent who suffers by his operations. These are but examples and indications of the altered legal conditions brought about by war even in the case of those who take no part in it. The whole Law of Neutrality is nothing more than the setting forth of the changes alluded to; but throughout it there runs the principle that every restriction upon the activities that were lawful to neutrals in the previous state 1 Whewell, Elements of Morality and Polity, p. 611.

of general peace must rest upon clear and undoubted rule. The burden of proof lies upon those who would enforce the restraint. The presumption is in favor of the continuation of former liberty. This may be regarded as the undoubted doctrine of modern times, though its acceptance cannot be dated much farther back than the end of the eighteenth century. Till then belligerents were on the whole more powerful than neutrals, and were able to carry on their wars with slight regard to the sanctity of neutral territory or the convenience of neutral commerce.

§ 244.

The nations of classical antiquity had no names to signify what we mean by neutrality. The Romans spoke of neutrals as medii, amici or pacati; and their vocab- The history of ulary remained in use all through the Middle Neutrality. Ages. Grotius in the one short chapter which he gives to the matter refers to medii1 and Bynkershoek is obliged to coin the awkward phrase non-hostes when he wishes to be exact.2 In the seventeenth century the terms neutral and neutrality occur in a Latin and a German dress as well as in English, but they had to be adopted into the French language before their use became general. Vattel, writing in 1758, spoke of neutre and neutralité; and in the following year Hübner published his De la Saisie des Bâtements Neutres. From that time the words became technical terms, and were used by all writers and speakers upon the department of International Law, with which we are now concerned.

It might be inferred from the absence of a proper vocabulary of neutrality in the works of the early publicists that

1 De Jure Belli ac Pacis, III., XVII., iii.

2 Quæstiones Juris Publici, I., 9.

3 Holland, Article on the International Position of the Suez Canal in the Fortnightly Review for July, 1883.

* Droit des Gens, III., Ch. vii.

the thing itself was either unknown to them entirely or existed in a very rudimentary condition. The truth is that the Law of Neutrality is a comparatively modern growth, in so far as it deals with the mutual rights and duties of belligerent and neutral states. It has arisen during the last three centuries from a recognition, dim at first but growing clearer and clearer as time went on, of the two principles of absolute impartiality on the part of neutrals and absolute respect for neutral sovereignty on the part of belligerents. But in so far as it deals with the right of belligerent states to put restraint on the commerce of neutral individuals, it is at least as old as the maritime codes of the Middle Ages, and in some of its provisions traces can be found of the sea laws of the Greeks and the Romans.1 Opposing selfinterests are the operative forces which have determined the character of this part of the Law of Neutrality. At first the powers at war were able to impose hard conditions upon peaceful merchants. It was a favor for them to be allowed to trade at all, and they were not permitted to do anything that would impede the operations of the belligerents. Then, as commerce became stronger, concession after concession was won for neutral traders; and neutral states made common cause to protect their subjects from molestations they deemed unwarrantable. The nineteenth century has seen the removal of many of the remaining shackles, and it can hardly be doubted that others will soon be struck off. The nature of the process will be seen when we come to speak in detail of the rules of maritime capture as they affect neutral commerce. Meanwhile we will briefly trace the growth of a Law of Neutrality, as between the states concerned in the war and the states which hold aloof from it.

Two writers so utterly unlike in principles and modes of thought as Machiavelli and Grotius are at one in assuming that the condition of neutrality is difficult and dangerous. But here their agreement ends. The Florentine statesman1 1 Pardessus, Us et Coutumes de la Mer, Vol. I.

characteristically advises that the ideal Prince should never be neutral in wars between his neighbors, since it is always more advantageous to take part in the struggle. He argues that, when there is reason to fear whichever of the bellig-. erents happens to become the conqueror, it is wise to take up arms on one side or the other, because, if you do not, "you are certain to become the prey of the victor to the satisfaction and delight of the vanquished." If on the other hand neither party to the struggle can give you cause for fear, "it is all the more prudent for you to take a side, for you will then be ruining the one with the help of the other, who, were he wise, would endeavor to save him. If he whom you help conquers, he remains in your power, and with your aid he cannot but conquer." It is needless to

say that the great Dutch jurist does not treat the problems of neutrality in this cynical way. But his endeavor to apply moral principles to their solution shows by its palpable imperfections how new was the task he attempted. He makes the neutral state into the judge of the justice or injustice of the war, and bids it "do nothing which may strengthen the side which has the worse cause, or which may impede the motions of him who is carrying on a just war.' Only in "a doubtful case " is it exhorted "to act alike to both sides." 2 Where modern International Law insists on impartiality of conduct Grotius makes inequality of treatment a duty. He would determine a neutral's action by its views. as to the rights and wrongs of the quarrel; whereas the approved doctrine of recent publicists is that the opinions and sympathies of non-combatant powers should have no effect on their behavior. They are bound to hold the balance equal between the parties to the conflict, however strongly they may desire the success of one of them and the defeat of the other. Neutral duties towards belligerents have grown

1 The Prince, Ch. XXI. The quotations in the text are from the translation by N. H. T., published by Kegan, Paul & Co.

2 De Jure Belli ac Pacis, III., XVII., iii.