172. Neutrality is, in general, abstention by a state which is not party to a war from all participation in the war, and may extend to the obligation to prevent, tolerate, or regulate certain acts upon the part of the belligerents.

Impartiality in the treatment of belligerents is not necessarily neutrality in the modern sense, for it would be possible for a state to grant a like privilege to both belligerents, when this privilege might be of no service to one belligerent and of greatest service to the other as in the use of ports. Modern neutrality proclamations, which sometimes prescribe that both "impartiality and neutrality" shall be observed toward the belligerents, define the "impartiality" as like treatment and "neutrality" as nonparticipation in the hostilities. Recent British proclamations provide for the observance of "a strict and impartial neutrality." Other proclamations contain similar provisions. The idea of the elements of neutrality in the modern sense was stated in the proclamation of President Washington of December 3, 1793, when he said: "The duty and interest of the United States require that they should with sincerity and good faith adopt and pursue a conduct friendly and impartial toward the belligerent powers." Conduct that shall be at the same time "friendly and impartial" is now regarded as obligatory upon a neutral state. The line of demarcation

11 Richardson, Messages and Papers of the Presidents, 156. WILS. INT.L.-25

in neutral duties of abstention, prevention, toleration, and regulation in practice often becomes indistinct, and accurate classification may not always be possible.

DEVELOPMENT.

173. In early times neutrality was not recognized. The idea is largely a product of the nineteenth century. The practice in regard to neutrality necessarily has become more defined as states have become more closely related.

The Development of the Idea of Neutrality.

The Greek and Latin languages have no words which clearly express the meaning of the words "neutral" and "neutrality." The Romans made use of the words, "amici," "medii," "pacati," and "socii" to convey some of the ideas now conveyed by the word "neutrality." Grotius in 1625 made use of the expression, "De his qui in bello medii sunt," as a title for his brief chapter upon the subject of their rights, in which he said: "It is the duty of those who stand apart from a war to do nothing which may strengthen the side whose cause is unjust, or which may hinder the movements of him who is carrying on a just war, and, in a doubtful case, to act alike to both sides, in permitting transit, in supplying provisions to the respective armies, and in not assisting persons besieged." 2

In the seventeenth century there were frequent attempts to establish grades of neutrality as natural, strict, perfect, imperfect, qualified, conditional, conventional, etc.3

Bynkershoek, in 1737, said: "I call those 'non-enemies' who are of neither party in a war. If I am neutral, I cannot advantage one party lest I injure the other."

Vattel says in 1758: "Neutral nations, during a war, are those who take no one's part, remaining friends common to both parties, and not favoring the armies of one of them to the prejudice of the other."5 This definition, and the explanations which Vattel gives of its meaning, shows a less

2 Grotius, De Jure Belli ac Pacis, lib. 3, C.

Pufendorf, Le Droit de la Nature et des Gens, liv. VIII, c. VI.

4 Quæstiones Juris Publici, I, IX, "qui neutrarum partium sunt." 5 Droit des Gens, III, 103.

clear conception of the idea of neutrality than that set forth by Bynkershoek more than twenty years earlier. The idea of Vattel, of impartiality rather than strict neutrality, generally prevailed during the eighteenth century. Toward the end of that century the distinction between a "strict or perfect neutrality" and an "imperfect neutrality" began to be made among those writing upon the law of nations.

Wheaton in 1836 says: "There are two species of neutrality recognized by international law. These are: (1) Natural or perfect, neutrality; and (2) imperfect, qualified, or conventional neutrality.

"First. Natural, or perfect, neutrality is that which every sovereign state has a right, independent of positive compact, to observe in respect to the wars in which other states may be engaged. * *

"Second. Imperfect, qualified, or conventional neutrality is that which is modified by special compact."

6

Kleen in 1898 says that, when neutral, a state keeps out of the hostilities and refrains from any participation or interference in the contention, while maintaining strict impartiality."

It is, however, now generally recognized that neutrality may in practice involve more than refraining from participation or interference, and the maintenance of strict impartiality. Neutrality places certain positive obligations upon the state. The failure to perform these obligations may have great effect upon the results of the war. By the Hague Convention Concerning Laws and Customs of War on Land of 1899, and by that of 1907 Respecting the Rights and Duties of Neutral Powers, a neutral state which receives on its territory troops belonging to the belligerent armies is under obligation to intern them as far as possible from the seat of war. In naval war a neutral state is likewise bound to exercise such care as the means at its disposal allow to prevent violation of its neutrality by belligerents. This may even involve the use of force by the

• Elements of International Law, §§ 413-415.

7 "La neutralité est la situation juridique dans laquelle un état pacifique est, autant que possible, laissé en dehors des hostilités qui ont lieu entre des états belligérants, et s'abstient lui-même de toute participation ou ingérence dans leur différend, en observant vis-a-vis d'eux une stricte impartialité." 1 La Neutralite, p. 73.

neutral against a belligerent not observing the recognized principles of international law.

Development of Practice in Regard to Neutral Relations.

As war in early times was usually regarded as a state of affairs without law, there was in practice no respect for those who were not parties to the war. Rights of third parties could hardly develop till the rights of the parties to the war were somewhat defined. Belligerents were gradually compelled in practice to respect certain rights of commerce. Some of these rights were formulated in the Consolato del Mare, a maritime code of uncertain origin, probably of the thirteenth century, which provided for the freedom of neutral property on the sea. The rules of this code were, however, frequently disregarded in the wars before the end of the eighteenth century, and at this period there was great diversity in practice. There also grew up a difference in practice in regard to neutral rights and duties on land and on the sea. Toward the end of the eighteenth century it was regarded as permissible for a neutral to allow its troops to serve a foreign power and to allow its ports to be used for war purposes.

By the Armed Neutrality of 1780 the states of Northern Europe, under the lead of Russia, set forth, among other principles, that free ships make free goods, except contraband of war, which was reaffirmed by the Armed Neutrality of 1800. There was also a declaration against paper blockades. Freedom of commerce began to be provided for in treaties also. Article 23 of the treaty between the United States and France in 1778 provided that free ships should make free goods. The principle was incorporated in other United States treaties of the period. The question received much attention both from American and foreign publicists.

In 1793 the disregard of belligerents for neutral territory received a marked illustration in the conduct of M. Genêt, the

s "If one of the contracting parties should be engaged in war with any other power, the free intercourse and commerce of the subjects or citizens of the party remaining neuter with the belligerent powers shall not be interrupted. On the contrary, in that case, as in full peace, the vessels of the neutral party may navigate freely to and from the ports and on the coasts of the belligerent parties, free

French minister to the United States. He issued letters of marque to American merchantmen, in order that they might cruise against British ships. He also proceeded to set up prize courts in connection with the French consulates. The action led to vigorous protests on the part of the United States, and later to the so-called neutrality act of June 5, 1794,10 which was subsequently renewed, and, with the act of April 20, 1818, became the basis of the neutrality practice of the United States.11 This act was summarized in President Roosevelt's neutrality proclamation of February 11, 1904, in which he declares:

"That by the act passed on the 20th day of April, A. D. 1818, commonly known as the 'neutrality law,' the following acts are forbidden to be done, under severe penalties, within the territory and jurisdiction of the United States, to wit:

"1. Accepting and exercising a commission to serve either of the said belligerents by land or by sea against the other belligerent.

"2. Enlisting or entering into the service of either of the said belligerents as a soldier, or as a marine, or seaman, on board of any vessel of war, letter of marque, or privateer.

"3. Hiring or retaining another person to enlist or enter himself in the service of either of the said belligerents as a soldier, or as a marine, or seaman on board of any vessel of war, letter of marque, or privateer.

"4. Hiring another person to go beyond the limits or jurisdiction of the United States with intent to be enlisted as aforesaid.

"5. Hiring another person to go beyond the limits of the United States with intent to be entered into service as aforesaid.

vessels making free goods, insomuch that all things shall be adjudged free which shall be on board any vessel belonging to the neutral party, although such things belong to an enemy of the other; and the same freedom shall be extended to persons who shall be on board a free vessel, although they should be enemies to the other party, unless they be soldiers in actual service of such enemy." Article 12, Treaty between United States and Prussia, 1785.

91 American State Papers, Foreign Relations, 69, 140, 147, 160. 101 Stat. p. 381, c. 50.

11 Rev. St. §§ 5281-5291 (U. S. Comp. St. 1901, pp. 3599-3602).