the new and changed policy of always remaining neutral during wars between other States. Although this former neutrality of the Swiss can in no way be compared with modern neutrality, since Swiss mercenaries for centuries afterwards fought in all European wars, the Swiss Government itself succeeded in each instance in taking up, and preserving, an attitude of impartiality, which complied with the rules of neutrality then current. Century. § 287. At the time of Grotius, neutrality was recog- Neutralnised as an institution of International Law, although the Sevenity during it was only in its infancy and needed a long time to teenth reach its present range. Grotius did not know, or at any rate did not use, the term neutrality.1 He treats neutrality in the very short seventeenth chapter of the Third Book on the Law of War and Peace, under the title De his, qui in Bello medii sunt, and only establishes two doubtful rules.2 The first is that neutrals shall do nothing which may strengthen a belligerent whose cause is unjust, or hinder the movements of a belligerent whose cause is just. The second rule is that in a war in which it is doubtful whose cause is just, neutrals shall treat both belligerents alike, in permitting the passage of troops, in supplying provisions for the troops, and in not rendering assistance to persons besieged. The treatment of neutrality by Grotius shows, on the one hand, that, apart from the recognition of the fact that third parties could remain neutral, not many rules regarding the duties of neutrals existed, and, on the other hand, that the granting of passage to troops of belligerents, and the supply of provisions to them, were not considered illegal. Indeed, the practice of the seventeenth century shows in numerous instances Progress of Neu trality during the Eighteenth Century. that neutrality was not really an attitude of impar- ; § 288. It was not until the eighteenth century that theory and practice agreed that it was the duty of neutrals to remain impartial, and of belligerents to respect the territories of neutrals. Bynkershoek and Vattel formulated adequate conceptions of neutrality. Bynkershoek 2 does not use the term 'neutrality,' but calls neutrals non hostes, and he describes them as those who are of neither party-qui neutrarum partium sunt-in a war, and who do not, in accordance with a treaty, give assistance to either party. Vattel, on the other hand, uses the term 'neutrality,' and gives the following definition: 'Neutral nations, during a war, are those who take no one's part, remaining friends common to both parties, and not favouring the armies of one of them to the prejudice of the other.' But although Vattel's book appeared in 1758, twenty one years after that of Bynkershoek, his doctrines are in some ways less advanced than those of Bynkershoek. Bynkershoek, in contradistinction to Grotius, maintained that neutrals had nothing to do with the question as to which party to a war had a just cause; that neutrals, being friends to both parties, have not to sit as judges between them, and, consequently, must not give or deny to one party or the other more or less in accordance with their conviction as to the justice or injustice of the cause of each. Vattel, however, taught 1 that a neutral, although he may generally allow the passage of troops of the belligerents through his territory, may refuse it to a belligerent making war for an unjust cause. Although the theory and practice of the eighteenth century agreed that it was the duty of neutrals to remain impartial, the impartiality demanded was not at all strict. For throughout the greater part of the century, a State was considered not to violate neutrality by furnishing one of the belligerents with such limited assistance as it had previously promised by treaty.2 In this way troops could be supplied by a neutral to a belligerent, and passage through neutral territory could be granted to his forces. Secondly, either belligerent might use the resources of neutrals. It was not considered a breach of neutrality for a State to allow one or both belligerents to levy troops on its territory, or to grant letters of marque to its merchantmen. It is true that during the second half of the eighteenth century, theory and practice became aware that neutrality was not consistent with these, and other, indulgences. But this only led to a distinction between neutrality in the strict sense of the term and imperfect neutrality. However, as regards the duty of belli 1 iii. § 135. See Nys in R.I., 2nd Ser. xv. (1913), pp. 173-181, and the examples in Hall, § 211. First Armed Neutrality. gerents to respect neutral territory, progress was made during this century. Whenever neutral territory was violated, reparation was asked for and made. Nevertheless it was considered lawful for a victor to pursue a vanquished army into neutral territory, and for a fleet to pursue1 a defeated enemy fleet into neutral territorial waters. § 289. Whereas, on the whole, the duty of neutrals to remain impartial, and the duty of belligerents to respect neutral territory, became generally recognised during the eighteenth century, the members of the Family of Nations did not come to an agreement during this period regarding the treatment of neutral vessels trading with belligerents. It is true that the right of visit and search for contraband of war, and the right to seize contraband, were generally recognised, but in other respects no general theory and practice were agreed upon. France and Spain upheld the rule that neutral goods on enemy ships and also neutral ships carrying enemy goods could be seized by belligerents. England, on the other hand, while conceding from time to time the rule 'free ship, free goods,' by particular treaties with certain States, throughout the eighteenth century generally followed the rule of the Consolato del Mare, according to which enemy goods on neutral vessels might be confiscated, whereas neutral goods on enemy vessels had to be restored. England also upheld the principle that the commerce of neutrals should in time of war be restricted to the same limits as in time of peace, since most States in time of peace reserved cabotage and trade with their colonies for vessels of their own merchant marine. It was in 1756 that this principle first came into question. In that year, during war with England, France found that the naval superiority of England prevented her 1 See below, §§ 320, 347 (4). from carrying on her colonial trade by her own merchant marine, and therefore threw it open to vessels of the Netherlands, which had remained neutral. England then ordered her fleet to seize all such vessels with their cargoes, on the ground that they had become incorporated with the French merchant marine, and had thereby acquired enemy character. Ever since that time the above principle has been commonly called the 'rule of 1756,' although it is now proved 2 that, as early as 1745, the English Prize Courts considered it a settled rule of law that a neutral vessel had no right in time of war to carry on such trade of a belligerent as was closed to it in time of peace. In the practice of declaring enemy coasts to be blockaded, and condemning captured neutral vessels for breach of blockade, although the blockades were by no means always effective, England followed other Powers. As privateering was legitimate and in general use, neutral commerce was considerably disturbed during every war between naval States. Now in 1780, during war between Great Britain, her American colonies, France, and Spain, Russia sent a circular3 to England, France, and Spain, in which she proclaimed the following five principles: (1) that neutral vessels should be allowed to navigate from port to port of belligerents, 1 The Immanuel, (1799) 2 C. Rob. 186. A clear statement of the rule and the facts is given by Reddie, Researches, i. pp. 307-313. See also the literature quoted below, § 400 n.; Phillimore, iii. §§ 212-222; Hall, § 234; Manning, pp. 260-267; Westlake, ii. p. 294; Moore, vii. § 1180; Boeck, No. 52; Dupuis, Nos. 131133. Note that the original meaning of the rule of 1756 is different from the meaning it received by its extension in 1793. From that year onwards, England not only considered those neutral vessels which embarked upon the French coasting and colonial trade thrown open to them during the war with England as having acquired enemy character, but also those which carried neutral goods from neutral ports to ports of a French colony. This extension of the rule was clearly unjustified, and it is not possible to believe that it will ever be revived. See Marsden, Law and Custom of the Sea, ii. (1916), p. 436, who mentions the case of The Ceres. 3 Martens, R., iii. p. 158. See Reddie, Researches, i. pp. 321-357. |