kingdom of the Netherlands was created by the Congress of Vienna, in 1815, for the purpose of forming a barrier for Germany against France; and on the dissolution of that kingdom into its original component parts, the perpetual neutrality of Belgium was guaranteed by the five great European powers, and made an essential condition of the recognition of her independence, in the treaties for the separation of Belgium from Holland.1

3. We have already seen that by the final act of the Neutrality Congress of Vienna, 1815, art. 6, the city of Cracow, of Cracow." with its territory, is declared to be a perpetually free, independent, and neutral State, under the joint protection of Austria, Prussia, and Russia. The neutrality, thus created by special compact and guaranteed by the three protecting powers, is made dependent upon the reciprocal obligation of the city of Cracow not to afford an asylum, or protection, to fugitives from justice, or military deserters belonging to the territories of those powers. How far the neutrality of the free and independent State thus created has been actually respected by the protecting powers, or how far the successive temporary occupations of its territory by their military forces, and how far their repeated forcible interference in its internal affairs, may have been justified by the nonfulfilment of the above obligation on the part of Cracow, or by other circumstances authorizing such interference according to the general principles of international law, are questions which have given rise to diplomatic discussions between the great European powers, contracting parties to the treaties of Vienna, but which are foreign to the present object.3

The permanent neutrality of Switzerland, Belgium, and Cracow, has thus been solemnly recognized as part of the public law of Europe. But the conventional neutrality thus created differs essentially from that natural or perfect neutrality which every State has a right to observe, independent of special compact, in respect to the wars in which other States may be engaged. The consequences of the latter species of neutrality only arise in case.

! Wheaton, Hist. Law of Nations, p. 552.

2 Vide supra, Pt. I. ch. 2, § 13, p. 46.

3 Wheaton's Hist. of Law of Nations, pp. 441-445.

of hostilities. It does not exist in time of peace, during which the State is at liberty to contract any eventual engagements it thinks fit as to political relations with other States. A permanently neutral State, on the other hand, by accepting this condi tion of its political existence, is bound to avoid in time of peace every engagement which might prevent its observing the duties of neutrality in time of war. As an independent State, it may lawfully exercise, in its intercourse with other States, all the attributes of external sovereignty. It may form treaties of amity, and even of alliance with other States; provided it does not thereby incur obligations, which, though perfectly lawful in time of peace, would prevent its fulfilling the duties of neutrality in time of war. Under this distinction, treaties of offensive alliance, applicable to a specific case of war between any two or more powers, or guaranteeing their possessions, are of course interdicted to the permanently neutral State. But this interdiction does not extend to defensive alliances formed with other neutral States for the maintenance of the neutrality of the contracting parties against any power by which it might be threatened with violation.'

The question remains, whether this restriction on the sovereign power of the permanently neutral State is confined to political alliances and guarantees, or whether it extends to treaties of commerce and navigation with other States. Here it again becomes necessary to distinguish between the two cases of natural and perfect, or qualified and conventional neutrality. In the case of ordinary neutrality, the neutral State is at liberty to regulate its commercial relations with other States according to its own view of its national interests, provided this liberty be not exercised so as to affect that impartiality which the neutral is bound to observe towards the respective belligerent powers. Vattel states, that the impartiality which a neutral nation is bound to observe, relates solely to the war. "In whatever does not relate to the war, a neutral and impartial nation will not refuse to one of the belligerent parties, on account of its present quarrel, what it grants to the other. This does not deprive the neutral of the liberty of making the advantage of the State the

1 Arendt, Essai sur la Neutralité de la Belgique, pp. 87–95.

rule of its conduct in its negotiations, its friendly connections, and its commerce. When this reason induces it to give preferences in things which are at the free disposal of the possessor, the neutral nation only makes use of its right, and is not chargeable with partiality. But to refuse any of these things to one of the belligerent parties, merely because he is not at war with the other, and in order to favor the latter, would be departing from the line of strict neutrality."1

These general principles must be modified in their application to a permanently neutral State. The liberty of regulating its commercial relations with other foreign States, according to its own views of its national interests, which is an essential attribute of national independence, does not authorize the permanently neutral State to contract obligations in time of peace inconsistent with its peculiar duties in time of war.

§ 5. Neutrality mo

limited alliance with

Neutrality may also be modified by antecedent engagements, by which the neutral is bound to one of the dified by a parties to the war. Thus the neutral may be bound by treaty, previous to the war, to furnish one of the belli- one of the belligerent gerent parties with a limited succor in money, troops, parties. ships, or munitions of war, or to open his ports to the armed vessels of his ally, with their prizes. The fulfilment of such an obligation does not necessarily forfeit his neutral character, nor render him the enemy of the other belligerent nation, because it does not render him the general associate of its enemy.2

How far a neutrality, thus limited, may be tolerated by the opposite belligerent, must often depend more upon considerations of policy than of strict right. Thus, where Denmark, in consequence of a previous treaty of defensive alliance, furnished limited succors in ships and troops to the Empress Catharine II. of Russia, in the war of 1788 against Sweden, the abstract right of the Danish court to remain neutral, except so far as regarded

1 Vattel, Droit des Gens, liv. iii. ch. 7, § 104.

2 Bynkershoek, Quæst. Jur. Pub. lib. i. cap. ix. Vattel, Droit des Gens, liv. iii. ch. 6, §§ 101–105. As to the general principles to be applied to such treaties, and when the casus fœderis arises, vide supra, Pt. III. ch. 2, §§ 14, 15, p. 346.

the stipulated succors, was scarcely contested by Sweden and the allied mediating powers. But it is evident, from the history of these transactions, that if the war had continued, the neutrality of Denmark would not have been tolerated by these powers, unless she had withheld from her ally the succors stipulated by the treaty of 1773, or Russia had consented to dispense with its fulfilment.1

ý 6. Qua lified neu

aris

antecedent

lations, ad

sels and

into the

neutral

those of the

other are

Another case of qualified neutrality arises out of trality is treaty stipulations antecedent to the commencement of ing out of hostilities, by which the neutral may be bound to admit treaty stipu- the vessels of war of one of the belligerent parties, with mitting the their prizes, into his ports, whilst those of the other may armed ves- be entirely excluded, or only admitted under limitations prizes of one and restrictions. Thus, by the treaty of amity and combelligerent merce of 1778, between the United States and France, ports, whilst the latter secured to herself two special privileges in the American ports: -1. Admission for her privateers, excluded. with their prizes, to the exclusion of her enemies. 2. Admission for her public ships of war, in case of urgent necessity, to refresh, victual, repair, &c., but not exclusively of other nations at war with her. Under these stipulations, the United States not being expressly bound to exclude the public ships of the enemies of France, granted an asylum to British vessels and those of other powers at war with her. Great Britain and Holland still complained of the exclusive privileges allowed to France in respect to her privateers and prizes, whilst France herself was not satisfied with the interpretation of the treaty by which the public ships of her enemies were admitted into the American ports. To the former, it was answered by the American government, that they enjoyed a perfect equality, qualified only by the exclusive admission of the privateers and prizes of France, which was the effect of a treaty made long before, for valuable considerations, not with a view to circumstances such as had occurred in the war of the French Revolution, nor against

1 Annual Register, vol. xxx. pp. 181, 182. State Papers, p. 292. Eggers, Leben Von Bernstorf, 2 abtheil, pp. 118-195.

any nation in particular, but against all nations in general, and which might, therefore, be observed without giving just offence to any.1

On the other hand, the minister of France asserted the right of arming and equipping vessels for war, and of enlisting men, within the neutral territory of the United States. Examining this question under the law of nations and the general usage of mankind, the American government produced proofs, from the most enlightened and approved writers on the subject, that a neutral nation must, in respect to the war, observe an exact impartiality towards the belligerent parties; that favors to the one, to the prejudice of the other, would import a fraudulent neutrality, of which no nation would be the dupe; that no succor ought to be given to either, unless stipulated by treaty, in men, arms, or any thing else, directly serving for war; that the right of raising troops being one of the rights of sovereignty, and consequently appertaining exclusively to the nation itself, no foreign power can levy men within the territory without its consent; that, finally, the Treaty of 1778, making it unlawful for the enemies of France to arm in the United States, could not be construed affirmatively into a permission to the French to arm in those ports, the treaty being express as to the prohibition, but silent as to the permission.2

§ 7. Hostilities within

the territory

of the neu

The rights of war can be exercised only within the territory of the belligerent powers, upon the high seas, or in a territory belonging to no one. Hence it follows, tral State. that hostilities cannot lawfully be exercised within the territorial jurisdiction of the neutral State, which is the common friend of both parties.3

This exemption extends to the passage of an army $8. Pasor fleet through the limits of the territorial jurisdiction, through the

sage

1 Mr. Jefferson's Letter to Mr. Hammond and Mr. Van Berckel, Sept. 9, 1793. Waite's State Papers, vol. i. pp. 169, 172.

2 Mr. Jefferson's Letter to Mr. G. Morris, Aug. 16, 1793. Waite's State Papers, vol. i. p. 140.

3 Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 8. Martens, des Prises et Reprises, ch. 2, § 18.