any foreign state with which the United States are at peace; and a variety of acts are made criminal, among the chief of which are fitting out or arming any vessel within American jurisdiction with the intent that it shall be employed as a belligerent cruiser in a war in which the United States is neutral, increasing within the United States the warlike force of any cruiser so employed, and setting on foot in the territory or territorial waters of the Union armed expeditions against any country with which the United States is at peace.1 These proceedings of the United States from 1793 to 1818 mark an era in the development of the rights and obligations of neutral powers. The grounds on which the action of the American Government was based are to be found in the works of the great publicists of the eighteenth century; but never before had the principles laid down by these writers been so rigorously applied and so loyally acted upon. The practical deductions drawn from them by Washington and his Cabinet were seen to be just and logical, and the governments of other states followed in their turn the American example. It was recognized that not only must a neutral state refrain from giving official aid to the belligerents in matters relating to the war, but it must also restrain its subjects from such acts as have a direct and immediate effect in augmenting the warlike force of any of the parties to the contest. Proper care for its own sovereign rights compels it to insist upon respect for the neutrality of its territory, just as a sense of justice towards the belligerent who would suffer from illegal enterprises causes it to put them down with a strong hand. In 1819 Great Britain adopted a neutrality statute based avowedly upon the act passed by Congress in the previous year; and in 1870, after her experience 1 For an account of the efforts of Washington's government to preserve an honest neutrality, see Wheaton, International Law (Dana's ed.), note 215, and Wharton, International Law of the United States, §§ 395, 396, 398-402. of the weakness of her law in dealing with the Alabama and other Confederate cruisers, she strengthened it by a new and more stringent Foreign Enlistment Act, which in several particulars goes beyond the American law in severity. The neutrality regulations of other civilized states are drawn upon similar lines, though they differ considerably from one another in their prohibitions and permissions. There is some danger lest the obligations placed upon neutral governments should become too burdensome. In the interests of humanity peace should be made easy and war difficult. But if the duties of neutrality are to be extended to comparatively trivial matters, the performance of them will be rendered so difficult and expensive, and the consequences of a failure to fulfil them will be so severe, that a hesitating state may possibly prefer the path of belligerency as on the whole the path of safety. When we come to consider in detail the duties of neutral governments,1 we shall be in a position to appreciate the necessity of this warning, in view of certain modern proposals to place upon them responsibilities which Washington and Jefferson repudiated and no European country has ventured to assume. Neutrality and $ 245. The older text-writers divided neutrality into two kinds. The first, called perfect neutrality, was simply that which we now understand by the term neutrality. It was the condition of states who took no part in the contest, but remained on friendly terms with both sides. The second, called imperfect or qualified neutrality, occurred when a neutral state gave either active aid or special privileges to one of the belligerents under the provisions of a treaty made before the war and not in anticipation of it. It is hardly necessary to say, after the historical view we have just concluded, that the latter is no 1 See Pt. IV., Ch. iii. longer recognized, though Wheaton and even Halleck refer to it as if it still existed.1 No state would be permitted in modern times to send a contingent to the army or navy of a belligerent on the plea that it had covenanted to do so long before; and even an agreement to give to one side advantages denied to the other would be resented, probably to the point of actual hostilities, if no redress followed the complaints of the injured belligerent. But though neutrality is legally one and the same in all cases, and cannot be separated into kinds and classes, neutral states naturally divide into those which refrain from war of their own free will, and those which are obliged by the conditions of their existence to take no part in hostilities except for the defence of their frontiers from actual attack. The difference between them is the difference between neutrality and neutralization, and this we will proceed to elucidate. "In ordinary neutrality there are two elements — the element of abstention from acts of war, and the element of freedom to abstain or not to abstain at pleasure."2 Take away the latter and we obtain neutralization. A neutral state can, if it pleases, cease to be neutral and join in the war. A neutral individual may acquire a belligerent character by enrolling himself in the army or navy of a power engaged in hostilities, and as far as International Law is concerned he is perfectly free to do so, though the municipal law of most civilized states renders their subjects liable to punishment for such an act. But there are states in existence which are not free to take part in any war which may arise among their neighbors, and there are individuals. in existence who lose certain valuable privileges and immunities if they engage in hostilities. These are neutralized states and neutralized individuals; and the process of neutralization may be made to apply equally well to seas and 1 Wheaton, International Law, § 415; Halleck, International Lew, Ch. XXIV., § 2. 2 Lawrence, Essays on International Law (2d ed.), p. 144. waterways, and even to such things as buildings, ambulances and ships. In the words of Professor Holland, to neutralize means "to bestow by convention a neutral character upon states, persons and things which would or might otherwise bear a belligerent character." Neutralized states, persons and things occupy exactly the same position towards hostilities actually in progress as neutral states, persons and things; but they differ from the latter in that they are bound by international agreement to take no part in warlike acts, and are protected from warlike operations as long as they respect this obligation. So great a change in their legal position cannot be made without the consent of all the parties affected thereby. A power is incapable of neutralizing its territory by its own mere declaration, because the rights and duties of other powers would be altered considerably by such a neutralization, and their consent must therefore be obtained before it can be legally carried out. Similarly two or three powers are incapable of neutralizing the territory of one of their number; for they have no authority to legislate for the civilized world, and to warn other powers off a spot where belligerent operations could previously be carried on by all who chose to go to war with the state which owned it. The common law of nations cannot be overridden by the ipse dixit of one of the communities subject to it, or even by a group of them. The change, if it is to be internationally valid, must be the result of general agreement. At the very least it must be accepted by all the important states concerned in the matter. Any smaller number may bind themselves to one another to protect a territory from hostile operations; but they cannot alter its international status, or render an attack upon it an offence against the public law of the civilized world. What is true of territory is true of persons and things. International Law gives to all lawful combatants the right to use force against certain individuals and At the 1 Article in the Fortnightly Review for July, 1883. certain property, and this right cannot be taken away except by an agreement so general as to amount to a legislative act binding upon civilized mankind. § 246. Neutralization ex The chief existing instances of undoubted neutralization give the support of history and practice to the doctrines we have arrived at by reasoning from general prin- Instances of true ciples. There are at the present time three amined. European states which occupy a position of guaranteed and permanent neutrality, on condition that they refrain from all belligerent operations save such as are necessary to protect them from actual or threatened attack. The first of these in point of time was Switzerland. The Swiss Confederation succeeded in maintaining both its independence and its neutrality from the Peace of Westphalia to the French Revolution; but in the stormy times which followed it was torn by internal dissensions and its territory was frequently invaded by French, Austrian and Russian armies. After the final overthrow of Napoleon a declaration was signed at Paris on Nov. 20, 1815, by the representatives of Great Britain, Austria, France, Prussia and Russia, whereby they formally recognized the perpetual neutrality of Switzerland and guaranteed the inviolability of its territory within the limits established by the Congress of Vienna. The agreement of the five Great Powers was held to be sufficient to elevate the neutralization of Switzerland into a principle of the public law of Europe, and its sanctity is none the less real because the Swiss people have shown themselves resolved to defend the integrity of their frontiers by well-armed and admirably organized battalions of hardy mountaineers. No case of violation of their territory has occurred since 1815. The political advantages of its isolation from warlike operations 1 Wheaton, History of the Law of Nations, Pt. IV., § 17. |