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CONCEPTION
OF NEU-
TRALITY.

Different species of neutrality.

CHAPTER IV.

RIGHTS OF WAR AS TO NEUTRALS.

THERE are no words in the Greek or Latin language that precisely answer to the English expressions, 'neutral' and 'neutrality.' The terms 'neutralis,' 'neutralitas,' which are used by some modern writers, are barbarisms, not to be met with in any classical author. The Roman civilians and historians make use of the words 'amici,' 'medii,' 'pacati,' 'socii,' which are very inadequate to express what we understand by neutrals, and they have no substantive whatever corresponding to neutrality. The cause of this deficiency is obvious. According to the laws of war, observed even by the most civilized nations of antiquity, the right of one nation to remain at peace, whilst other neighbouring nations were engaged in war, was not admitted to exist. He who was not an ally was an enemy; and as no intermediate relation was known, so no word had been invented to express such relation. The modern public jurists, who wrote in the Latin language, were consequently driven to the necessity of inventing terms to express those international relations which were unknown to the Pagan nations of antiquity, and which had grown out of a milder dispensation, struggling against the inveterate customs of the dark ages which preceded the revival of letters. Grotius terms neutrals 'medii,' 'middle men' (a). Bynkershoek, in treating of the subject of neutrality, says: "Non hostes appello, qui neutrarum partium sunt, nec ex fœdere his illisve quicquam debent; si quid debeant, fœderati sunt, non simpliciter amici" ("I call neutrals ('non hostes') those who take part with neither of the belligerent Powers, and who are not bound to either by any alliance. If they are so bound, they are no longer neutrals but allies ") (b).

Two species of neutrality were usually recognised by international law: firstly, natural, or perfect neutrality; and secondly, imperfect, qualified, or conventional neutrality. From the modern point of view, this distinction is scarcely applicable

(a) Grotius, De Jur. Bel. ac Pac. lib. iii. cap. 9.

(b) Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 9; De Statu belli inter non

hostes. We shall hereafter see that this definition is merely applicable to that species of neutrality which was not modified by special compact.

in actual practice (bb); but the difference between the two kinds. may be indicated for the sake of throwing light on the recent development of the conception of neutrality.

Natural, or perfect neutrality, is that which every sovereign Perfect neutrality. State has a right, independent of positive compact, to observe in respect to the wars in which other States may be engaged.

The right of every independent State to remain at peace, whilst other States are engaged in war, is an incontestable attribute of sovereignty. It is, however, obviously impossible that neutral nations should be wholly unaffected by the existence of war between those communities with whom they continue to maintain their accustomed relations of friendship and commerce. The rights of neutrality are connected with corresponding duties. Among these duties is that of impartiality between the contending parties. The neutral is the common friend of both parties, and consequently is not at liberty to favour one party to the detriment of the other (c). Bynkershoek states it to be "the duty of neutrals to be every way careful not to interfere in the war, and to do equal and exact justice to both parties. 'Bello se non interponant,'" that is to say, as to what relates to the war, let them not prefer one party to the other, and this is the only proper conduct for neutrals. A neutral has nothing to do with the justice or injustice of the war; it is not for him to sit as judge between his friends, who are at war with each other, and to grant or refuse more or less to the one or the other, as he thinks that their cause is more or less just or unjust. If I am a neutral, I ought not to be useful to the one, in order that I may hurt the other" (d). These, Bynkershoek adds, are "the duties applicable to the condition of those Powers who are not bound by any alliance, but are in a state of perfect neutrality. These I merely call 'friends,' in order to distinguish them from confederates and allies" (e). Imperfect, qualified, or conventional neutrality, is that which Imperfect is modified by special compact. neutrality.

The public law of Europe affords several examples of this species of neutrality.

Confedera

1. Thus the political independence of the confederated Cantons Neutrality of Switzerland, which had so long existed in fact, was first formally of the Swiss recognised by the Germanic Empire, of which they originally tion. constituted an integral portion, at the peace of Westphalia, 1648.

(bb) See infra, p. 639.

(c) Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 9. Vattel, Droit des Gens, liv. iii. ch. 7, §§ 103-110.

(d) Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 9.

(e) Ibid.

Switzerland during wars of French revolution.

Proposal of

the allies to Switzerland in 1815.

The Swiss Cantons had observed a prudent neutrality during the Thirty Years' War, and from this period to the war of the French Revolution, their neutrality had been, with some slight exceptions, respected by the bordering States. But this neutrality was qualified by the special compact existing between the Confederation, or the separate Cantons, and foreign States, forming treaties of alliance or capitulations for the enlistment of Swiss troops in the service of those States. The policy of respecting the neutrality of Switzerland was mutually felt by the two great monarchies of France and Austria, during their long contest for supremacy under the houses of Bourbon and Hapsburg (f).

During the wars of the French Revolution the neutrality of Switzerland was alternately violated by both the great contending parties, and her once peaceful valleys became the bloody scene of hostilities between the French, Austrian, and Russian armies. The expulsion of the allied forces, and the subsequent withdrawal of the French army of occupation, were followed by violent internal dissensions, which were finally composed by the mediation of Bonaparte as first consul of the French Republic, in 1803. A treaty of alliance was simultaneously concluded between the Republic and the Helvetic Confederation. According to the stipulations of this treaty, the neutrality of Switzerland was recognised by France, whilst the Confederation stipulated not to grant a passage through its territories to the armies of France, and to oppose such passage by force of arms in case of its being attempted. The Confederation also engaged to permit the enlisting of eight thousand Swiss troops for the service of France, in addition to the sixteen thousand troops to be furnished according to the capitulation signed on the same day with the treaty. It was, at the same time, expressly declared that its alliance, being merely defensive, should not, in any respect, be construed to prejudice the neutrality of Switzerland (g).

When the allied armies advanced to invade the French territory, in 1813, the Austrian corps under Prince Schwartzenberg passed through the territory of Switzerland, and crossed the Rhine at three different places, at Basle, Lauffenberg, and Schaffhausen, without opposition on the part of the federal troops. The perpetual neutrality of Switzerland was, nevertheless, recognised by the final Act of the Congress of Vienna, March 20th, 1815 (h); but on the return of Napoleon from the Island of Elba, the allied

(f) Cf. Thiers, Histoire du Consulat et de l'Empire, tom. i. liv. 3, p. 182. (9) Schoell, Histoire des Traités de

Paix, tom. ii. ch. 33, p. 339.

(h) Wheaton, Hist. Law of Nations, p. 493.

Powers invited the Confederation to accede to the general coalition against France. In the official note delivered by their ministers to the Diet at Zurich, on the 6th of May, 1815, it was stated, that although the allied Powers expected that Switzerland would not hesitate to unite with them in accomplishing the common object of alliance, which was to prevent the re-establishment of the usurped revolutionary authority in France, yet they were far from proposing to Switzerland the development of a military force disproportioned to her resources and to the usages of her people. They respected the military system of a nation, which, uninfluenced by the spirit of ambition, armed for the single purpose of defending its independence and its tranquillity. The allied Powers well knew the importance attached by Switzerland to the maintenance of the principle of her neutrality; and it was not with the purpose of violating this principle, but with the view of accelerating the epoch when it might become applicable in an advantageous and permanent manner, that they proposed to the Confederation to assume an attitude and to adopt energetic measures, proportioned to the extraordinary circumstances of the moment without at the same time forming a rule for the future (i). In the answer of the Diet to this note, dated the 12th May, 1815, Reply of the it was declared, that the relations which Switzerland maintained with the allied Powers, and with them only, could leave no doubt as to her views and intentions. She would persist in them with that constancy and fidelity which had at all times distinguished the Swiss character. Twenty-two small republics, united together for their security and the maintenance of their independence, must seek for their national strength in the principle of their Confederation. This resulted inevitably from the nature of things, the geographical position, the constitution, and the character of the Swiss people. A consequence of this principle was the neutrality of Switzerland, recognised as the basis of its future relations with all other States. It followed from the same principle, that the most efficacious participation of Switzerland in the great struggle which was about to take place must necessarily consist in the defence of her frontiers. In adopting this course, she did not separate herself from the common cause of the allied Powers, which thus became her own national cause. The defence of a frontier fifty leagues in length, serving as a point d'appui for the movements of two armies, was in itself a cooperation not only real, but also of the highest importance.

(i) Martens, Nouveau Recueil, tom. ii. p. 166.

Swiss Diet.

Declaration

of 1815 as to Swiss neutrality.

More than thirty thousand men had already been levied for this purpose. Determined to maintain this development of her forces, Switzerland had a right to expect from the favourable disposition of the allied Powers, that, so long as she did not claim their assistance, their armies would respect the integrity of her territory. Assurances to this effect on their part were absolutely necessary in order to tranquillize the Swiss people, and engage them to support with fortitude the burden of an armament so considerable (k).

On the 20th of May, 1815, a convention was concluded at Zurich, to regulate the accession of Switzerland to the general alliance between Austria, Great Britain, Prussia, and Russia; by which the allied Powers stipulated, that, in case of urgency, where the common interest rendered necessary a temporary passage across any part of the Swiss territory, recourse should be had to the authority of the Diet for that purpose. The left wing of the allied army accordingly passed the Rhine between Basle and Rheinfelden, and entered France through France through the territory of

Switzerland (1).

On the re-establishment of the general peace, a declaration was signed at Paris, on the 20th November, 1815, by the four allied Powers and France, by which these five Powers formally recognised the perpetual neutrality of Switzerland, and guaranteed the integrity and inviolability of her territory within its new limits, as established by the final Act of the Congress of Vienna, and by the Treaty of Paris of the above date. They also declared that the neutrality and inviolability of Switzerland, and her independence of all foreign influence, were conformable to the true interests of the policy of all Europe, and that no inference unfavourable to the rights of Switzerland, in respect to her neutrality, ought to be drawn from the circumstances which had led to the passage of a part of the allied forces across the Helvetic territory. This passage, freely granted by the Cantons in the convention of the 20th May, was the necessary result of the entire adherence of Switzerland to the principles manifested by the allied Powers in the treaty of alliance of the 25th March (m).

Neutrality of At the second Peace of Paris, 1815, the allied Powers agreed part of Savoy. that the neutrality of Switzerland should be extended to a portion of Savoy, at that time a part of the kingdom of Sardinia (n). In 1860, Savoy was transferred by Sardinia to France. By the second Article of the Treaty of Transfer it was provided "that

(k) Martens, tom. ii. p. 170.
(1) Ibid.
(m) Martens, tom. iv.
P. 186.

(n) Art. iii. Hertslet, Map of Europe, vol. i. p. 346.

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