17th century.

war.

As late as the year 1625 the rights and duties of neutral states were so imperfectly defined that in his famous treatise on the Law of War and Peace Grotius did not deem it necessary to consecrate more than a brief chapter to the status of those whom he described by the expression qui in bello medii sunt; qui extra bellum sunt positi In his statement of the duties of those who are at peace with the belligerent parties he shows himself so far dominated by the customs of his age that he takes it for granted that the neutral state should pass upon the justice of the war in progress, and modify its neutral conduct accordingly. "It is," he says, "the duty of neutrals to do nothingwhich may strengthen those who are prosecuting an unjust cause, or which may impede the movements of him who is carrying on a just But if the cause is a doubtful one they must manifest an impartial attitude towards both sides. in permitting them to pass through the country, in supplying their troops with provisions, and in not relieving the besieged." It is evident that the concept of a legal status of neutrality, in which a neutral state, acknowledging the sovereignty and equality of the states in conflict, regulates its conduct irrespective of its sympathy for or its belief in the justice of the cause of either of them, had not yet come to be understood. In fact, until the close of the seventeenth century the greater part of the duties of a neutral state were determined not by fixed international custom but by treaties between individual states, by which each state sought to prevent third parties from giving help to the enemy in the event of a possible war.2 How little the principle of absolute abstention on the part of neutrals from all participation in the war was recognized may be seen in the fact that it was not regarded at that period as inconsistent. with neutrality for a neutral state not only to grant an impartial permission to both belligerents to raise troops within its territory, but to grant this permission to one belligerent, while refusing it to the other, in cases where the neutral state had, prior to the war, entered/ into a treaty stipulating that such levies might be raised. As for the modern duty imposed upon neutral states of actively preventing violations of their sovereignty by the belligerents and of seeking redress for such violations after they have taken place, powerful belligerents were so in the habit of performing acts of war within the territory 1De Jure Belli et Pacis, lib. III, cap. XVII, 3.

2Hall cites a number of such treaties ranging in date from the treaty between England and Denmark in 1465 down to the treaty between the same powers in 1686. Op. Cit., 572-573.

of neutrals that there was le throght of the injured be"gerent holding the neutral to accum for them?

The middle of the enginneenth ceny marks a decided growth in the 100 curuge recognition of the rights of nemal states, bet it was not m the close of the century that the standard of neutral duty rose apreciably higher. As regards the rights of neutral states, in consequence of a better recognition of the principle of territorial sovereignty there were fewer instances of the violation of the sovereignty of neutral states by the commission of hostilities by belligerents within neutral territory; and we find Wolf stating, in 1749, that no one may raise troopsin a foreign country without the consent of the sovereign; and he who presumes to do so violates the Law of Nations, and therefore does an injury to the foreign state." But in the matter of neutral duties it was still possible, in 1737, for a writer of such good judgment as Bynkershoek to think that "the purchase of soldiers among a friendly people is as lawful as the purchase of munitions of war," and that if help has been promised by a state to an ally, and the latter goes to war with a friendly state, the neutral state must stand by its promise. Vattel, writing in 1758, qualified his general statement that a neutral state must give no help to either party by the condition, “if it is not bound [by treaty] to do so," upon which he comments as follows: "When a sovereign furnishes the moderate assistance which he owes in virtue of a former defensive alliance, he does not become a party to the war: accordingly, he may acquit himself of his obligation and maintain, in other respects, a strict neutrality;" and he attempts to justify this preference of one belligerent over the other on the ground that the neutral state “might have reasons" for confiding its troops to one belligerent rather than to the other. Another exception to the general rule that a neutral must give no help to either party is made with respect to loans of money. Vattel holds that the practice is lawful "so long as it appears that the nation is lending its money solely for the purpose of obtaining interest," and a similar discrimination, as in the case of levies of troops, in favor of one belligerent over the

1Hall quotes several proclamations of neutral states in the 17th century to prove that, in spite of the frequent violations of neutral sovereignty, "the right of a sovereign to forbid and to resent the performance of acts of war within his lands or waters was theoretically held as fully then as now to be inherent in the fact of sovereignty." Op. Cit., 576.

2Jus Gentium, s. 754; Phillimore, International Law, III, §CXLIV. Quaestionum Juris Publici, lib. I, cap. XXII.

Ibid. cap. IX.

"Le Droit des Gens, liv. III, cap. VII, §§104-105.

Neutral duties become more definite.

other is justified by the principle that a nation has the right to lend its money "where it thinks it has good security."

991

But putting these inconsistent exceptions aside Vattel is to be credited with having formulated in clear terms the two fundamental principles of neutral duty: First, that the mere impartial treatment of the belligerent parties in the sense of giving equal help to both is not sufficient to comply with the duties of neutrality. A nation must abstain from helping either party; for, as Vattel justly observes, "the same number of troops, the same quantity of arms, munitions, etc., furnished under different circumstances, do not amount to equivalent help." Secondly, in all matters not connected with the war, a neutral state must not refuse to one of the belligerents what it grants to the other.2

3

The subsequent history of the law of neutrality shows us an increasingly better understanding of the force of the two principles formulated by Vattel, and of their proper application to the disputes arising between belligerents and neutrals. Gradually it came to be generally recognized that a neglect on the part of neutral states to prevent the arming and equipping of cruisers in their ports by private persons, in the interest of belligerents, was in violation of the duties of neutrality. By the year 1788 we find Sweden declaring that the justification of a treaty obligation, offered by Denmark in explanation of the fact that certain of its troops were acting as auxiliaries of Russia against Sweden, was a "doctrine which His Swedish Majesty cannot altogether reconcile with the Law of Nations and the rights of Sovereigns." It was left for the United States, in 1794, by the enactment of municipal legislation for the better fulfilment of its neutral duties, to formulate into a consistent system the most enlightened usages, and to set a new standard of the obligations incumbent upon the status of neutrality.5...

But it is evident that the standard set by the United States in 1794 could not be expected to form a permanent code of neutrality. It was a statement of principle as applied to existing circumstances, and was necessarily limited to the continuance of those

1Le Droit des Gens, liv. III, cap. VII, §110.

2Ibid. liv. III, cap. VII, §104.

3 Hall refers to a series of neutrality edicts issued after the outbreak of the war between England and France in 1778 as illustrating an attempt on the part of certain maritime states to fulfill their duties in this respect. Op. Cit., 584, The declaration is quoted in full by Phillimore, III, §CXL.

"The character and effects of this legislation on the part of the United States will be treated in full in the following chapter.

circumstances, or similar ones. In the course of time new conditions arose which required a more careful analysis of the general principles of neutral duty, in order to secure a more consistent application of them to the actual situation. The consideration of these new deductions from the fundamental principles of neutrality, and of the different rules which have been adopted in consequence, will find its proper place in a subsequent chapter.

Passive duties.

In the light of the fundamental principles determining the status of Analysis of neutrality we may proceed to analyse the ways in which a neutral neutral duties. state may act in violation of it. It was stated above that the obligation of abstaining from all participation in a war imposes upon neutral states both active and passive duties. The passive duties are fulfilled by the merely negative attitude of non-intervention in the war on the part of the neutral state. Here we immediately meet with the distinction between acts of a state in that sovereign and corporate capacity in which it maintains public relations with other states and acts of the citizens or subjects of the state, who as a body constitute the state, but whose actions as individuals cannot be imputed to the governmental organs of the state. Setting aside for the moment the acts of citizens of the state, and considering only the acts of the state in its corporate capacity, it is the accepted rule that a state cannot furnish aid, whether directly or indirectly, to either of the parties at war. How far this general rule must be modified, with respect to indirect aid, by the continuance by the neutral state towards the belligerents of certain acts of comity shown by all states in time of peace, is still one of the debated questions of international law. A fairly satisfactory compromise was reached by the Powers at the Second Hague Conference by the adoption of rules fixing certain limitations upon the asylum which may be granted to belligerent war-ships in neutral ports, and defining in fairly exact terms the amount of supplies and fuel which may be shipped in neutral ports, and the extent to which repairs may be carried out therein.1 In so far as these acts of courtesy, which may under certain circumstances enable a belligerent to resume hostilities and therefore constitute indirect assistance' to him, are impartially shown to both belligerents, they cannot be said to constitute an interference by the neutral in the war.

Passing from the consideration of acts of a state in its corporate Acts of individcapacity to acts of individual citizens or subjects of the state, we find uals excepted. a different rule applicable to them. It is clear that however much |

1See below, pp. 143-145.

Corresponding right of bellig

erents.

1

the state itself may desire to maintain an attitude of non-interference
in a foreign war, it cannot exercise such an effective control over its
citizens as to prevent them, as individuals, from giving direct or indi-
rect assistance to either of the belligerents. In the first place, the
jurisdiction of a state is limited to its own dominions, and it would
not have the right, even if it had the power, to exercise a control over
the acts of its subjects in other countries. Hence, a neutral state
cannot be held accountable by a belligerent even for acts of direct
hostility committed by its citizens against the belligerent, provided
i those acts do not take their inception upon the territory of the neutral
state. In the second place, even within their own dominions, where
they are supposed to exercise a certain measure of control over the
acts of their subjects, neutral states have been unwilling to restrict
the ordinary commercial undertakings of their citizens merely because
those undertakings happen, in time of war between two foreign coun-
tries, to result in direct or indirect assistance being given to one of
the parties to the disadvantage of the other. A statement of Jefferson
has been frequently quoted as illustrating the position taken by neutral
states on this subject. In a letter to the French minister, on May 15,
1793, Jefferson said: "We have answered [to Great Britain], that
our citizens have always been free to make, vend, and export arms;
that it is the constant occupation and livelihood of some of them.
To suppress their callings, the only means, perhaps, of their sub-
sistence, because a war exists in foreign and distant countries, in which
we have no concern, would scarcely be expected. It would be hard in
principle, and impossible in practice. The law of nations, therefore,
respecting the rights of those at peace, has not required from them
such an internal derangement in their occupations. It is satisfied withy
the external penalty pronounced in the President's proclamation, that
of confiscation of such portion of these arms as shall fall into the
hands of any of the belligerent Powers on their way to the ports of
their enemies. To this penalty our citizens are warned that they
will be abandoned, and that the purchases of arms here may work
no inequality between the parties at war, the liberty to make them will
be enjoyed equally by both."

The latter part of Jefferson's remarks shows that while on the one hand neutral states have successfully vindicated their claim to be

1The jurisdiction of a state over its merchant vessels on the high seas is of too limited a character to constitute an exception to the principle, in so far as responsibility for acts committed by such vessels is concerned.