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national practice conformed to the more stringent
provisions of former treaties. These had certainly
not been observed when a sovereign felt tempted to
infringe them; and though thinkers had begun to
apply ethics to the conduct of nations, no one had so
marked out the principles of neutrality that particu-
lar usages could be compared with them and im-
proved with their help. Grotius gave the subject no
serious consideration, and went no farther in his
meagre chapter 'De his qui in bello medii sunt' than
to say
that 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 be-
sieged.' Elsewhere he incidentally remarks that it
is not inconsistent with an alliance that those who
are attacked by one of the parties to it shall be de-
fended by the other-peace being maintained in other
respects. Various quotations from ancient authors,
from which he draws no conclusions, suggest that he
looked upon an impartial permission to raise levies
as consistent with neutrality, but that the grant of a
subsidy or the supply of munitions of war was
an hostile act.

2

So long as these somewhat incoherent doctrines alone represented the views of theorists it is not strange that usage was in general rude, or that

1 Eorum qui a bello abstinent officium est nihil facere, quo validior fiat is qui improbam fovet causam, aut quo justum bellum gerentis motus impediantur; si re vero dubia æquos se præbere utrisque in permittendo transitu, in commeatu

præbendo legionibus, in obsessis non sublevandis. De Jure Belli et Pacis, lib. iii. cap. xvii.

cum

2 Non pugnat autem fœdere, ut quos alii offenderent, hi defenderentur ab aliis, manente de cætero pace. Lib. ii. cap. xvi,

countries concluded treaties with the express object of restricting its operation on themselves. Henry IV. allowed entire regiments of French soldiers to pass into the service of the United Provinces; the expedition, numbering 6,000 men, which the Marquis of Hamilton, with the consent of his sovereign, led to the assistance of Gustavus Adolphus in 1631, was exceptional only in its size;1 and Burnet draws a lively picture of the character of English neutrality at a much later time. In 1677 complaints were made in Parliament of the regiments that the King kept in the French army, and of the great service done by them. It is true the King suffered the Dutch to make levies. But there was another sort of encouragement given to the levies of France, particularly in Scotland; where it looked liker a press than a levy. They had not only the public gaols given them to keep their men in, but when these were full, they had the Castle of Edinburgh assigned them, till ships were ready for their transport.' 2

It was important to small and ambitious states, which occupied a larger space in the field of politics than was justified by their inherent power, to keep their hold on foreign recruiting-grounds. A treaty, therefore, between Brandenburg and the United Provinces in 1655 declares that the levy of land or sea forces, and the purchase, lading, and equipment, of vessels of war shall always be permitted, and be lawful, in the lands and harbours of the two parties;' and in 1656 a treaty between England and Sweden provided, more in the interest of the latter than the former power, that it should be lawful for either of the contracting parties to raise soldiers and seamen

1 Martin, Hist. de France, 497. Burnet, Memoirs of James and William, Dukes of

X.

Hamilton, pp. 7 and 9.

2 Hist. of his own Time, ii. 114 (ed. 1823).

by beat of drum within the kingdoms, countries, and cities of the other, and to hire men of war and ships of burden.'

more,

6

1

A treaty of neutrality may secure something and will certainly provide for nothing less, than the bare performance of strict neutral duties. By that which was concluded between Louis XIV. and the Duke of Brunswick in 1675, the Duke promises to observe a sincere and perfect neutrality towards the King. In conformity with this neutrality, his Highness will not anywhere assist the enemies of the King directly or indirectly, and will not permit any levies to be made in his states, nor the passage of troops through them, nor the formation of any kind of magazines."2

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In other words he promises:

1. That no active assistance shall be given by Brunswick to any enemy of France as by one sovereign state to another.

2. That it will not afford passive aid by permitting enlistments or by allowing its territory to be made a base of operations.

He does not promise to restrain the individual action of his subjects in any way.

It would therefore seem that towards the end of the seventeenth century the utmost that could be demanded by a belligerent from a neutral state was that the latter should refrain from giving active help to the enemy of the belligerent, and should prevent his territory from being continuously used for a hostile purpose. Indeed, his customary right to so much as this may have been far from unquestionable; and neither then nor long afterwards had he

1 Dumont, vi. ii. 111, and vi. ii. 125.

2 Ibid. vii, i. 312.

any good grounds for complaint if privileges given to his enemy could be shared by himself.

It must not, however, be forgotten that though the practice of neutrality in the seventeenth century was highly imperfect, and though its theory was not thought out, the ethical view of the general relations of states to each other which was commonly taken by writers, prepared the way for a more rapid settlement of its fundamental conceptions, when once attention was directed to them, than might otherwise have taken place.

Rights of

a neutral state as

understood

in the

teenth

century.

§ 9. 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. In seven1604, James L issued a Proclamation directing that 'all officers and subjects by sea and land shall rescue and succour all such merchants and others as shall fall within the danger of such as await the coasts.' And in 1675, Sir Leoline Jenkins, in writing to the King in Council with respect to a vessel which had been seized by a French privateer, says that 'all foreign ships, when they are within the King's Chambers, being understood to be within the places intended in these directions' of James I., ' must be in safety and indemnity, or else when they are surprised must be restored to it, otherwise they have not the protection worthy of your Majesty.'1 Philip II., so early as 1563, had published an edict forbidding, under pain of death, that any violence should be done to his subjects or allies, whether for reason of war or for any other cause, within sight of shore. The Dutch, after acquiring their independence, made a like decree;"

1 Wynne, Life of Sir Leoline Juris Publici, Libri Duo, lib. i. Jenkins, ii. 780.

2 Bynkershoek, Quæstiones

D

c. 9.

How far

they were observed.

and several treaties exist in which it was stipulated that the rights of sovereignty should be enforced by neutral nations for the benefit of an injured belligerent.1

But the history of the century bristles with occurrences which show how little the doctrine had advanced beyond the stage of theory. In 1627, the English captured a French ship in Dutch waters; in 1631, the Spaniards attacked the Dutch in a Danish port; in 1639, the Dutch were in turn the aggressors, and attacked the Spanish fleet in English waters; again in 1666, they captured English vessels in the Elbe, and in spite of the remonstrances of Hamburg and of several other German states did not restore them; in 1665, an English fleet endeavoured to seize the Dutch East India squadron in the harbour of Bergen, but were beaten off with the help of the forts; finally, in 1693, the French attempted to cut some Dutch ships out of

1 Art. xxi. of the Treaty of Breda (1667) declares: Item, si qua navis aut naves, quæ subditorum aut incolarum alterutrius partis aut neutralis alicujus fuerint, in alterutrius portubus à quovis tertio capiantur, qui ex subditis et incolis alterutrius partis non sit; illi, quorum in portu aut ex portu aut quacunque ditione prædictæ naves captæ fuerint, pariter cum altera parte dare operam tenebuntur in prædictis nave vel navibus insequendis et reducendis, suisque dominis reddendis; verum hoc totum fiet dominorum impensis, aut eorum quorum id interest. Dumont, vii. i. 47. Like provisions were contained in the treaties made between the United Provinces and England in 1654 and 1661, and France in 1662.

Lisbon, and on being

In the eighteenth century the principle of sovereignty was so much better respected, that it will be unnecessary to recur to the subject. In 1759, when Admiral Boscawen pursued a French squadron into Portuguese waters, and captured two vessels, the Government of Portugal, though perfectly indifferent in fact, was obliged to demand reparation in order to avoid embroilment with France; and as full reparation by surrender of the vessels was not exacted, France subsequently alleged that the neutrality of Portugal was fraudulent, and grounded her declaration of war in 1762 in part upon the occurrence. Lord Stanhope's Hist. of England from the Peace of Utrecht, iv. 148, and Append. xxxiv.

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