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CHAPTER VII: Of Neutrality—and the Passage of Troops through a Neutral Country. - Emer de Vattel, The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury (LF ed.) 
The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury, edited and with an Introduction by Béla Kapossy and Richard Whitmore (Indianapolis: Liberty Fund, 2008).
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Of Neutrality—and the Passage of Troops through a Neutral Country.
§103. Neutral nations.Neutral nations are those who, in time of war, do not take any part in the contest, but remain common friends to both parties, without favouring the arms of the one to the prejudice of the other. Here we are to consider the obligations and rights flowing from neutrality.
§104. Conduct to be observed by a neutral nation.In order rightly to understand this question, we must avoid confounding what may lawfully be done by a nation that is free from all engagements, with what she may do if she expects to be treated as perfectly neutral in a war. As long as a neutral nation wishes securely to enjoy the advantages of her neutrality, she must in all things shew a strict impartiality towards the belligerent powers: for, should she favour one of the parties to the prejudice of the other, she cannot complain of being treated by him as an adherent and confederate of his enemy. Her neutrality would be a fraudulent neutrality, of which no nation will consent to be the dupe. It is sometimes suffered to pass unnoticed, merely for want of ability to resent it; we chuse to connive at it, rather than excite a more powerful opposition against us. But the present question is, to determine what may lawfully be done, not what prudence may dictate according to circumstances. Let us therefore examine, in what consists that impartiality which a neutral nation ought to observe.
It solely relates to war, and includes two articles,—1. To give no assistance when there is no obligation to give it,—nor voluntarily to furnish troops, arms, ammunition, or any thing of direct use in war. I do not say “to give assistance equally,” but “to give no assistance”: for it would be absurd that a state should at one and the same time assist two nations at war with each other; and besides it would be impossible to do it with equality. The same things, the like number of troops, the like quantity of arms, of stores, &c. furnished in different circumstances, are no longer equivalent succours. 2. In whatever does not relate to war, a neutral and impartial nation must not refuse to one of the parties, on account of his present quarrel, what she grants to the other. This does not deprive her of the liberty to make the advantage of the state still serve as her rule of conduct in her negotiations, her friendly connections, and her commerce. When this reason induces her to give preferences in things which are ever at the free disposal of the possessor, she only makes use of her right, and is not chargeable with partiality. But to refuse any of those things to one of the parties purely because he is at war with the other, and because she wishes to favour the latter, would be departing from the line of strict neutrality.
§105. An ally may furnish the succour due from him, and remain neuter.I have said that a neutral state ought to give no assistance to either of the parties, when “under no obligation to give it.” This restriction is necessary. We have already seen that when a sovereign furnishes the moderate succour due in virtue of a former defensive alliance, he does not become an associate in the war (§101). He may therefore fulfil his engagement, and yet observe a strict neutrality. Of this Europe affords frequent instances.
§106. Right of remaining neuter.When a war breaks out between two nations, all other states that are not bound by treaties, are free to remain neuter; and if either of the belligerent powers attempted to force them to a junction with him, he would do them an injury, inasmuch as he would be guilty of an infringement on their independency in a very essential point. To themselves alone it belongs to determine whether any reason exists to induce them to join in the contest: and there are two points which claim their consideration,—1. The justice of the cause. If that be evident, injustice is not to be countenanced: on the contrary, it is generous and praiseworthy to succour oppressed innocence, when we possess the ability. If the case be dubious, the other nations may suspend their judgment, and not engage in a foreign quarrel. 2. When convinced which party has justice on his side, they have still to consider whether it be for the advantage of the state to concern themselves in this affair, and to embark in the war.
§107. Treaties of neutrality.A nation making war, or preparing to make it, often proposes a treaty of neutrality to a state of which she entertains suspicions. It is prudent to learn betimes what she has to expect, and not run the risk of a neighbour’s suddenly joining with the enemy in the heat of the war. In every case where neutrality is allowable, it is also lawful to bind ourselves to it by treaty.
Sometimes even necessity renders this justifiable. Thus, although it be the duty of all nations to assist oppressed innocence (Book II. §4), yet, if an unjust conqueror, ready to invade his neighbour’s possessions, makes me an offer of neutrality when he is able to crush me, what can I do better than to accept it? I yield to necessity; and my inability discharges me from a natural obligation. The same inability would even excuse me from a perfect obligation contracted by an alliance. The enemy of my ally threatens me with a vast superiority of force: my fate is in his hand: he requires me to renounce the liberty of furnishing any assistance against him. Necessity, and the care of my own safety, absolve me from my engagements. Thus it was that Louis the Fourteenth compelled Victor Amadeus duke of Savoy to quit the party of the allies.19 But then the necessity must be very urgent. It is only the cowardly or the perfidious who avail themselves of the slightest grounds of alarm, to violate their promises and desert their duty. In the late war, the king of Poland, elector of Saxony, and the king of Sardinia,20 firmly held out against the unfortunate course of events, and, to their great honour, could not be brought to treat without the concurrence of their allies.
§108. Additional reason for making these treaties.Another reason renders these treaties of neutrality useful, and even necessary. A nation that wishes to secure her own peace, when the flames of war are kindling in her neighbourhood, cannot more successfully attain that object than by concluding treaties with both parties, expressly agreeing what each may do or require in virtue of the neutrality. This is a sure mode to preserve herself in peace, and to obviate all disputes and cavils.
§109. Foundation of the rules of neutrality.Without such treaties, it is to be feared that disputes will often arise respecting what neutrality does or does not allow. This subject presents many questions which authors have discussed with great heat, and which have given rise to the most dangerous quarrels between nations. Yet the law of nature and of nations has its invariable principles, and affords rules on this head, as well as on the others. Some things also have grown into custom among civilised nations, and are to be conformed to by those who would not incur the reproach of unjustly breaking the peace.* As to the rules of the natural law of nations, they result from a just combination of the laws of war, with the liberty, the safety, the advantages, the commerce, and the other rights of neutral nations. It is on this principle that we shall lay down the following rules.
§110. How levies may be allowed, money lent, and every kind of things sold, without a breach of neutrality.First, No act on the part of a nation, which falls within the exercise of her rights, and is done solely with a view to her own good, without partiality, without a design of favouring one power to the prejudice of another,—no act of that kind, I say, can in general be considered as contrary to neutrality; nor does it become such, except on particular occasions when it cannot take place without injury to one of the parties, who has then a particular right to oppose it. Thus, the besieger has a right to prohibit access to the place besieged (see §117 in the sequel). Except in cases of this nature, shall the quarrels of others deprive me of the free exercise of my rights in the pursuit of measures which I judge advantageous to my people? Therefore, when it is the custom of a nation, for the purpose of employing and training her subjects, to permit levies of troops in favour of a particular power to whom she thinks proper to intrust them,—the enemy of that power cannot look upon such permissions as acts of hostility, unless they are given with a view to the invasion of his territories, or the support of an odious and evidently unjust cause. He cannot even demand, as matter of right, that the like favour be granted to him,—because that nation may have reasons for refusing him, which do not hold good with regard to his adversary; and it belongs to that nation alone to judge of what best suits her circumstances. The Switzers, as we have already observed, grant levies of troops to whom they please; and no power has hitherto thought fit to quarrel with them on that head. It must, however, be owned, that, if those levies were considerable, and constituted the principal strength of my enemy, while, without any substantial reason being alleged, I were absolutely refused all levies whatever,— I should have just cause to consider that nation as leagued with my enemy; and, in this case, the care of my own safety would authorise me to treat her as such.
The case is the same with respect to money which a nation may have been accustomed to lend out at interest. If the sovereign or his subjects lend money to my enemy on that footing, and refuse it to me because they have not the same confidence in me, this is no breach of neutrality. They lodge their property where they think it safest. If such preference be not founded on good reasons, I may impute it to ill-will against me, or to a predilection for my enemy. Yet if I should make it a pretence for declaring war, both the true principles of the law of nations, and the general custom happily established in Europe, would join in condemning me. While it appears that this nation lends out her money purely for the sake of gaining an interest upon it, she is at liberty to dispose of it according to her own discretion; and I have no right to complain.
But if the loan were evidently granted for the purpose of enabling an enemy to attack me, this would be concurring in the war against me.
If the troops, above alluded to, were furnished to my enemy by the state herself, and at her own expense, or the money in like manner lent by the state, without interest, it would no longer be a doubtful question whether such assistance were incompatible with neutrality.
Further, it may be affirmed on the same principles, that if a nation trades in arms, timber for ship-building, vessels, and warlike stores,—I cannot take it amiss that she sells such things to my enemy, provided she does not refuse to sell them to me also at a reasonable price. She carries on her trade without any design to injure me; and by continuing it in the same manner as if I were not engaged in war, she gives me no just cause of complaint.
§111. Trade of neutral nations with those which are at war.In what I have said above, it is supposed that my enemy goes himself to a neutral country to make his purchases. Let us now discuss another case,—that of neutral nations resorting to my enemy’s country for commercial purposes. It is certain, that, as they have no part in my quarrel, they are under no obligation to renounce their commerce for the sake of avoiding to supply my enemy with the means of carrying on the war against me. Should they affect to refuse selling me a single article, while at the same time they take pains to convey an abundant supply to my enemy, with an evident intention to favour him,—such partial conduct would exclude them from the neutrality they enjoyed. But if they only continue their customary trade, they do not thereby declare themselves against my interest; they only exercise a right which they are under no obligation of sacrificing to me.
On the other hand, whenever I am at war with a nation, both my safety and welfare prompt me to deprive her, as far as possible, of every thing which may enable her to resist or injure me. In this instance, the law of necessity exerts its full force. If that law warrants me, on occasion, to seize what belongs to other people, will it not likewise warrant me to intercept every thing belonging to war, which neutral nations are carrying to my enemy? Even if I should, by taking such measure, render all those neutral nations my enemies, I had better run that hazard than suffer him who is actually at war with me, thus freely to receive supplies, and collect additional strength to oppose me. It is therefore very proper, and perfectly conformable to the law of nations (which disapproves of multiplying the causes of war), not to consider those seizures of the goods of neutral nations as acts of hostility.
When I have notified to them my declaration of war against such or such a nation, if they will afterwards expose themselves to risk in supplying her with things which serve to carry on war, they will have no reason to complain if their goods fall into my possession; and I, on the other hand, do not declare war against them for having attempted to convey such goods. They suffer indeed by a war in which they have no concern; but they suffer accidentally. I do not oppose their right: I only exert my own; and if our rights clash with and reciprocally injure each other, that circumstance is the effect of inevitable necessity. Such collisions daily happen in war. When, in pursuance of my rights, I exhaust a country from which you derived your subsistence,—when I besiege a city with which you carried on a profitable trade,—I doubtless injure you; I subject you to losses and inconveniences; but it is without any design of hurting you. I only make use of my rights, and consequently do you no injustice.
But that limits may be set to these inconveniences, and that the commerce of neutral nations may subsist in as great a degree of freedom as is consistent with the laws of war, there are certain rules to be observed, on which Europe seems to be generally agreed.
§112. Contraband goods.The first is, carefully to distinguish ordinary goods which have no relation to war, from those that are peculiarly subservient to it. Neutral nations should enjoy perfect liberty to trade in the former: the belligerent powers cannot with any reason refuse it, or prevent the importation of such goods into the enemy’s country: the care of their own safety, the necessity of self-defence, does not authorise them to do it, since those things will not render the enemy more formidable. An attempt to interrupt or put a stop to this trade would be a violation of the rights of neutral nations, a flagrant injury to them;—necessity, as we have above observed, being the only reason which can authorise any restraint on their trade and navigation to the ports of the enemy. England and the United Provinces having agreed, in the treaty of Whitehall, signed on the 22d of August, 1689, to notify to all states not at war with France, that they would attack every ship bound to or coming from any port of that kingdom, and that they before-hand declared every such ship to be a lawful prize,—Sweden and Denmark, from whom some ships had been taken, entered into a counter-treaty on the 17th of March, 1693, for the purpose of maintaining their rights and procuring just satisfaction. And the two maritime powers, being convinced that the complaints of the two crowns were well founded, did them justice.*
Commodities particularly useful in war, and the importation of which to an enemy is prohibited, are called contraband goods. Such are arms, ammunition, timber for ship-building, every kind of naval stores, horses,—and even provisions, in certain junctures, when we have hopes of reducing the enemy by famine.†
§113. Whether such goods may be confiscated.But in order to hinder the transportation of contraband goods to an enemy, are we only to stop and seize them, paying the value to the owner,—or have we a right to confiscate them? Barely to stop those goods would in general prove an ineffectual mode, especially at sea, where there is no possibility of entirely cutting off all access to the enemy’s harbours. Recourse is therefore had to the expedient of confiscating all contraband goods that we can seize on, in order that the fear of loss may operate as a check on the avidity of gain, and deter the merchants of neutral countries from supplying the enemy with such commodities. And indeed it is an object of such high importance to a nation at war to prevent, as far as possible, the enemy’s being supplied with such articles as will add to his strength and render him more dangerous, that necessity and the care of her own welfare and safety authorise her to take effectual methods for that purpose, and to declare that all commodities of that nature, destined for the enemy, shall be considered as lawful prize. On this account she notifies to the neutral states her declaration of war (§63); whereupon, the latter usually give orders to their subjects to refrain from all contraband commerce with the nations at war, declaring that if they are captured in carrying on such trade, the sovereign will not protect them. This rule is the point where the general custom of Europe seems at present fixed, after a number of variations, as will appear from the note of Grotius which we have just quoted, and particularly from the ordinances of the kings of France, in the years 1543 and 1584, which only allow the French to seize contraband goods, and to keep them on paying the value. The modern usage is certainly the most agreeable to the mutual duties of nations, and the best calculated to reconcile their respective rights. The nation at war is highly interested in depriving the enemy of all foreign assistance; and this circumstance gives her a right to consider all those, if not absolutely as enemies, at least as people that feel very little scruple to injure her, who carry to her enemy the articles of which he stands in need for the support of the war: she therefore punishes them by the confiscation of their goods. Should their sovereign undertake to protect them, such conduct would be tantamount to his furnishing the enemy with those succours himself:—a measure which were undoubtedly inconsistent with neutrality. When a nation, without any other motive than the prospect of gain, is employed in strengthening my enemy, and regardless of the irreparable evil which she may thereby entail upon me,* she is certainly not my friend, and gives me a right to consider and treat her as an associate of my enemy. In order, therefore, to avoid perpetual subjects of complaint and rupture, it has, in perfect conformity to sound principles, been agreed that the belligerent powers may seize and confiscate all contraband goods which neutral persons shall attempt to carry to their enemy, without any complaint from the sovereign of those merchants; as, on the other hand, the power at war does not impute to the neutral sovereigns these practices of their subjects. Care is even taken to settle every particular of this kind in treaties of commerce and navigation.
§114. Searching neutral ships.We cannot prevent the conveyance of contraband goods, without searching neutral vessels that we meet at sea: we have therefore a right to search them. Some powerful nations have indeed, at different times, refused to submit to this search. “After the peace of Vervins,21 queen Elizabeth, continuing the war against Spain, requested permission of the king of France to cause all French ships bound for Spain to be searched, in order to discover whether they secretly carried any military stores to that country: but this was refused, as an injury to trade, and a favourable occasion for pillage.”* At present a neutral ship refusing to be searched, would from that proceeding alone be condemned as a lawful prize. But to avoid inconveniences, oppression, and every other abuse, the manner of the search is settled in the treaties of navigation and commerce. It is the established custom at present to give full credit to the certificates, bills of lading, &c. produced by the master of the ship, unless any fraud appear in them, or there be good reasons for suspecting it.
§115. Enemy’s property on board a neutral ship.If we find an enemy’s effects on board a neutral ship, we seize them by the rights of war: but we are naturally bound to pay the freight to the master of the vessel, who is not to suffer by such seizure.†
§116. Neutral property on board an enemy’s ship.The effects of neutrals, found in an enemy’s ship, are to be restored to the owners, against whom there is no right of confiscation,—but without any allowance for detainder, decay, &c. The loss sustained by the neutrals on this occasion is an accident to which they exposed themselves by embarking their property in an enemy’s ship; and the captor, in exercising the rights of war, is not responsible for the accidents which may thence result, any more than if his cannon kills a neutral passenger who happens unfortunately to be on board an enemy’s vessel.
§117. Trade with a besieged town.Hitherto we have considered the commerce of neutral nations with the territories of the enemy in general. There is a particular case in which the rights of war extend still farther. All commerce with a besieged town is absolutely prohibited. If I lay siege to a place, or even simply blockade it, I have a right to hinder any one from entering, and to treat as an enemy whoever attempts to enter the place, or carry any thing to the besieged, without my leave; for he opposes my undertaking, and may contribute to the miscarriage of it, and thus involve me in all the misfortunes of an unsuccessful war. King Demetrius22 hanged up the master and pilot of a vessel carrying provisions to Athens at a time when he was on the point of reducing that city by famine.* In the long and bloody war carried on by the United Provinces against Spain for the recovery of their liberties, they would not suffer the English to carry goods to Dunkirk, before which the Dutch fleet lay.†
§118. Impartial offices of neutrals.A neutral nation preserves, towards both the belligerent powers, the several relations which nature has instituted between nations. She ought to shew herself ready to render them every office of humanity reciprocally due from one nation to another: she ought, in every thing not directly relating to war, to give them all the assistance in her power, and of which they may stand in need. Such assistance, however, must be given with impartiality; that is to say, she must not refuse any thing to one of the parties on account of his being at war with the other (§104). But this is no reason why a neutral state, under particular connections of friendship and good-neighbourhood with one of the belligerent powers, may not, in every thing that is unconnected with war, grant him all those preferences which are due to friends: much less does she afford any grounds of exception to her conduct, if, in commerce, for instance, she continues to allow him such indulgences as have been stipulated in her treaties with him. She ought therefore, as far as the public welfare will permit, equally to allow the subjects of both parties to visit her territories on business, and there to purchase provisions, horses, and, in general, every thing they stand in need of,—unless she has, by a treaty of neutrality, promised to refuse to both parties such articles as are used in war. Amidst all the wars which disturb Europe, the Switzers preserve their territories in a state of neutrality. Every nation indiscriminately is allowed free access, for the purchase of provisions if the country has a surplus, and for that of horses, ammunition, and arms.
§119. Passage of troops through a neutral country.An innocent passage is due to all nations with whom a state is at peace (Book II. §123); and this duty extends to troops as well as to individuals. But it rests with the sovereign of the country to judge whether the passage be innocent; and it is very difficult for that of an army to be entirely so. In the late wars of Italy,23 the territories of the republic of Venice, and those of the pope, sustained very great damages by the passage of armies, and often became the theatre of the war.
§120. Passage to be asked.Since, therefore, the passage of troops, and especially that of a whole army, is by no means a matter of indifference, he who desires to march his troops through a neutral country, must apply for the sovereign’s permission. To enter his territory without his consent, is a violation of his rights of sovereignty and supreme dominion, by virtue of which, that country is not to be disposed of for any use whatever, without his express or tacit permission. Now a tacit permission for the entrance of a body of troops is not to be presumed, since their entrance may be productive of the most serious consequences.
§121. It may be refused for good reasons.If the neutral sovereign has good reasons for refusing a passage, he is not obliged to grant it,—the passage in that case being no longer innocent.
§122. In what case it may be forced.In all doubtful cases, we must submit to the judgment of the proprietor respecting the innocence of the use we desire to make of things belonging to another (Book II. §§128, 130), and must acquiesce in his refusal, even though we think it unjust. If the refusal be evidently unjust,—if the use, and, in the case now before us, the passage, be unquestionably innocent,—a nation may do herself justice, and take by force what is unjustly denied to her. But we have already observed that it is very difficult for the passage of an army to be absolutely innocent, and much more so for the innocence to be very evident. So various are the evils it may occasion, and the dangers that may attend it,—so complicated are they in their nature, and so numerous are the circumstances with which they are connected,—that to foresee and provide for every thing, is next to impossible. Besides, self-interest has so powerful an influence on the judgments of men, that if he who requires the passage is to be the judge of its innocence, he will admit none of the reasons brought against it; and thus a door is opened to continual quarrels and hostilities. The tranquillity, therefore, and the common safety of nations, require that each should be mistress of her own territory, and at liberty to refuse every foreign army an entrance, when she has not departed from her natural liberties in that respect, by treaties. From this rule, however, let us except those very uncommon cases which admit of the most evident demonstration that the passage required is wholly unattended with inconvenience or danger. If, on such an occasion, a passage be forced, he who forces it will not be so much blamed as the nation that has indiscreetly subjected herself to this violence. Another case, which carries its own exception on the very face of it, and admits not of the smallest doubt, is that of extreme necessity. Urgent and absolute necessity suspends all the rights of property (Book II. §§119, 123): and if the proprietor be not under the same pressure of necessity as you, it is allowable for you, even against his will, to make use of what belongs to him. When, therefore, an army find themselves exposed to imminent destruction or unable to return to their own country unless they pass through neutral territories, they have a right to pass in spite of the sovereign, and to force their way, sword in hand. But they ought first to request a passage, to offer securities, and pay for whatever damages they may occasion. Such was the mode pursued by the Greeks on their return from Asia, under the conduct of Agesilaüs.*
Extreme necessity may even authorise the temporary seizure of a neutral town, and the putting a garrison therein, with a view to cover ourselves from the enemy, or to prevent the execution of his designs against that town, when the sovereign is not able to defend it. But when the danger is over, we must immediately restore the place, and pay all the charges, inconveniences, and damages, which we have occasioned by seizing it.
§123. The fear of danger authorises a refusal,When the passage is not of absolute necessity, the bare danger which attends the admission of a powerful army into our territory, may authorise us to refuse them permission to enter. We may have reason to apprehend that they will be tempted to take possession of the country, or at least to act as masters while they are in it, and to live at discretion. Let it not be said with Grotius,† that he who requires the passage is not to be deprived of his right on account of our unjust fears. A probable fear, founded on good reasons, gives us a right to avoid whatever may realise it; and the conduct of nations affords but too just grounds for the fear in question. Besides, the right of passage is not a perfect right, unless in a case of urgent necessity, or when we have the most perfect evidence that the passage is innocent.
§124. or a demand of every reasonable security.But, in the preceding section, I suppose it impracticable to obtain sufficient security which shall leave us no cause to apprehend any hostile attempts or violent proceedings on the part of those who ask permission to pass. If any such security can be obtained (and the safest one is, to allow them to pass only in small bodies, and upon delivering up their arms, as has been sometimes required),‡ the reason arising from fear no longer exists. But those who wish to pass should consent to give every reasonable security required of them, and consequently submit to pass by divisions and deliver up their arms, if the passage be denied them on any other terms. The choice of the security they are to give does not rest with them. Hostages or a bond would often prove very slender securities. Of what advantage will it be to me to hold hostages from one who will render himself master over me? And as to a bond, it is of very little avail against a prince of much superior power.
§125. Whether always necessary to give every kind of security required.But, is it always incumbent on us to give every security a nation may require, when we wish to pass through her territories?—In the first place we are to make a distinction between the different reasons that may exist for our passing through the country; and we are next to consider the manners of the people whose permission we ask. If the passage be not essentially necessary, and can be obtained only on suspicious or disagreeable conditions, we must relinquish all idea of it, as in the case of a refusal (§122). But if necessity authorises me to pass, the conditions on which the passage will be granted may be accepted or rejected, according to the manners of the people I am treating with. Suppose I am to cross the country of a barbarous, savage, and perfidious nation,—shall I leave myself at their discretion, by giving up my arms and causing my troops to march in divisions? No one, I presume, will condemn me to take so dangerous a step. Since necessity authorises me to pass, a kind of new necessity arises for my passing in such a posture as will secure me from any ambuscade or violence. I will offer every security that can be given without foolishly exposing myself; and if the offer is rejected, I must be guided by necessity and prudence,—and, let me add, by the most scrupulous moderation, in order to avoid exceeding the bounds of that right which I derive from necessity.
§126. Equality to be observed towards both parties as to the passage.If the neutral state grants or refuses a passage to one of the parties at war, she ought in like manner to grant or refuse it to the other, unless a change of circumstances affords her substantial reasons for acting otherwise. Without such reasons, to grant to one party what she refuses to the other, would be a partial distinction, and a departure from the line of strict neutrality.
§127. No complaint lies against a neutral state for granting a passage.When I have no reason to refuse a passage, the party against whom it is granted has no right to complain of my conduct, much less to make it the ground of a hostile attack upon me, since I have done no more than what the law of nations enjoins (§119). Neither has he any right to require that I should deny the passage; for he must not pretend to hinder me from doing what I think agreeable to my duty. And even on those occasions when I might with justice refuse permission to pass, I am at liberty to abstain from the exertion of my right. But especially when I should be obliged to support my refusal by the sword, who will take upon him to complain of my having permitted the war to be carried into his country, rather than draw it on myself? No sovereign can require that I should take up arms in his favour, unless obliged to it by treaty. But nations, more attentive to their own interests than to the observance of strict justice, are often very loud on this pretended subject of complaint. In war especially, they stick at no measures; and if by their threats they can induce a neighbouring state to refuse a passage to their enemy, the generality of their rulers consider this conduct only as a stroke of good policy.
§128. This state may refuse it from a fear of the resentment of the opposite party;A powerful state will despise these unjust menaces: firm and unshaken in what she thinks due to justice and to her own reputation, she will not suffer herself to be diverted by the fear of a groundless resentment: she will not even bear the menace. But a weak nation, unable to support her rights, will be under a necessity of consulting her own safety; and this important concern will authorise her to refuse a passage, which would expose her to dangers too powerful for her to repel.
§129. and lest her country should become the theatre of war.Another fear may also warrant her in refusing a passage, namely, that of involving her country in the disorders and calamities of war. For, even if the party against whom a passage is requested, should observe such moderation as not to employ menaces for the purpose of intimidating the neutral nation into a refusal, he will hardly fail to demand a passage for himself also: he will march to meet his enemy; and thus the neutral country will become the theatre of war. The infinite evils of such a situation are an unexceptionable reason for refusing the passage. In all these cases, he who attempts to force a passage, does an injury to the neutral nation, and gives her most just cause to unite her arms with those of his adversary. The Switzers, in their alliances with France, have promised not to grant a passage to her enemies. They ever refuse it to all sovereigns at war, in order to secure their frontiers from that calamity; and they take care that their territory shall be respected. But they grant a passage to recruits, who march in small bodies, and without arms.
§130. What is included in the grant of passage.The grant of permission to pass includes a grant of every thing which is naturally connected with the passage of troops, and without which the passage would be impracticable; such as the liberty of carrying with them whatever may be necessary for an army,—that of exercising military discipline on the soldiers and officers, and of purchasing at a fair price every thing the army may want, unless, through fear of scarcity, a particular exception has been made, to oblige them to carry with them their own provisions.
§131. Safety of the passage.He who grants the passage is bound to render it safe, as far as depends on him. Good-faith requires this: and to act otherwise would be ensnaring those to whom the passage is granted.
§132. No hostility to be committed in a neutral country.For this reason, and because foreigners can do nothing in a territory against the will of the sovereign, it is unlawful to attack an enemy in a neutral country, or to commit in it any other act of hostility. The Dutch East-India fleet having put into Bergen in Norway, in 1666, to avoid the English, the British admiral had the temerity to attack them there. But the governor of Bergen fired on the assailants; and the court of Denmark complained, though perhaps too faintly, of an attempt so injurious to her rights and dignity.*
To conduct prisoners, to convey spoil to a place of safety, are acts of war, consequently not to be done in a neutral country; and whoever should permit them would depart from the line of neutrality, by favouring one of the parties. But I here speak of prisoners and spoil not yet perfectly in the enemy’s power, and whose capture is, as it were, not yet fully completed. A flying party, for instance, cannot make use of a neighbouring and neutral country as a place of deposit to secure their prisoners and spoil. To permit this, would be giving countenance and support to their hostilities. When the capture is completed, and the booty absolutely in the enemy’s power, no inquiry is made how he came by such effects, and he may dispose of them in a neutral country. A privateer carries his prize into a neutral port, and there freely sells it; but he cannot land his prisoners there for the purpose of keeping them in confinement, because the detention and custody of prisoners of war is a continuation of hostilities.
§133. Neutral country not to afford a retreat to troops, that they may again attack their enemies.On the other hand, it is certain, that, if my neighbour affords a retreat to my enemies when defeated and too much weakened to escape me, and allows them time to recover, and watch a favourable opportunity of making a second attack on my territories, this conduct, so prejudicial to my safety and interests, would be incompatible with neutrality. If therefore my enemies, on suffering a discomfiture, retreat into his country, although charity will not allow him to refuse them permission to pass in security, he is bound to make them continue their march beyond his frontiers as soon as possible, and not suffer them to remain in his territories on the watch for a convenient opportunity to attack me a-new; otherwise he gives me a right to enter his country in pursuit of them. Such treatment is often experienced by nations that are unable to command respect. Their territories soon become the theatre of war; armies march, encamp, and fight in it, as in a country open to all comers.
§134. Conduct to be observed by troops passing through a neutral country.Troops to whom a passage is granted, are not to occasion the least damage in the country; they are to keep to the public roads, and not enter the possessions of private persons,—to observe the most exact discipline, and punctually pay for every thing with which the inhabitants supply them. And if the licentiousness of the soldiers, or the necessity of certain operations, as encamping or intrenching, has caused any damage, their commander or their sovereign is bound to make reparation. All this requires no proof. What right have an army to injure a country, when the most they could require was an innocent passage through it?
There can be no reason why the neutral state should not stipulate for a sum of money as an indemnification for certain damages which it would be difficult to estimate, and for the inconveniences naturally resulting from the passage of an army. But it would be scandalous to sell the very grant of passage,—nay even unjust, if the passage be attended with no damage, since, in that case, the permission is due. As to the rest, the sovereign of the country is to take care that the compensation be paid to the parties who have suffered the damage: for no right authorises him to reserve for his own use what is given for their indemnification. It is indeed too often the case that the weak sustain the loss, and the powerful receive the compensation.
§135. A passage may be refused for a war evidently unjust.Finally, as we are not bound to grant even an innocent passage except for just causes, we may refuse it to him who requires it for a war that is evidently unjust,—as, for instance, to invade a country without any reason, or even colourable pretext. Thus Julius Caesar denied a passage to the Helvetii, who were quitting their country in order to conquer a better. I conceive indeed that policy had a greater share in his refusal, than the love of justice; but, in short, justice authorised him on that occasion to obey the dictates of prudence. A sovereign who is in a condition to refuse without fear, should doubtless refuse in the case we now speak of. But if it would be dangerous for him to give a refusal, he is not obliged to draw down the impending evil on his own head for the sake of averting it from that of his neighbour: nay, rashly to hazard the quiet and welfare of his people would be a very great breach of his duty.
[19. ] Victor Amadeus II, Duke of Savoy (r. 1675–1720), was forced to leave the Anglo-Dutch alliance against France during the War of the Spanish Succession (1701–13) after the siege of Turin in 1706.
[20. ] During the War of the Austrian Succession (1741–48), Augustus III of Poland (r. 1734–63), who was also elector of Saxony as Frederick Augustus II, and Charles Emmanuel III of Savoy (r. 1730–73), opposed Empress Maria Theresa of Austria.
[* ] The following is an instance.—It was determined by the Dutch, that, on a vessel’s entering a neutral port after having taken any of the enemies of her nation prisoners on the high seas, she should be obliged to set those prisoners at liberty, because they were then fallen into the power of a nation that was in neutrality with the belligerent parties.—The same rule had been observed by England in the war between Spain and the United Provinces. [[Note added in 1773/1797 editions.]]
[* ] See other instances in Grotius, de Jure Belli et Pacis, lib. iii. cap. i. §5, not. 6.
[† ] The Pensionary De Witt, in a letter of January 14, 1654, acknowledges that it would be contrary to the law of nations to prevent neutrals from carrying corn to an enemy’s country: but he says that we may lawfully prevent them from supplying the enemy with cordage and other materials for the rigging and equipment of ships of war.
In 1597, queen Elizabeth would not allow the Poles and Danes to furnish Spain with provisions, much less with arms,—alleging that “according to the rules of war, it is lawful to reduce an enemy even by famine, with the view of obliging him to sue for peace.” The United Provinces, finding it necessary to observe a greater degree of circumspection, did not prevent neutral nations from carrying on every kind of commerce with Spain. It is true, indeed, that, while their own subjects sold both arms and provisions to the Spaniards, they could not with propriety have attempted to forbid neutral nations to carry on a similar trade. (Grotius, Hist. of the Disturbances in the Low Countries, book vi.) Nevertheless, in 1646, the United Provinces published an edict prohibiting their own subjects in general, and even neutral nations, to carry either provisions or any other merchandise to Spain, because the Spaniards, “after having, under the appearance of commerce, allured foreign vessels to their ports, detained them, and made use of them as ships of war.” And for this reason the same edict declared that “the confederates, when blocking up their enemies’ ports, would seize upon every vessel they saw steering towards those places.” Ibid. book xv. p. 572. [[Note added in 1773/1797 editions.]]
[* ] In our time the king of Spain [[Philip V, r. 1700–1746 prohibited all Hamburg ships from entering his harbours, because that city had engaged to furnish the Algerines with military stores; and thus he obliged the Hamburgers to cancel their treaty with the Barbarians.]]
[21. ] In 1590.
[* ] Grotius, ubi supra.
[† ] “I have obtained” (said the ambassador Boreel, in a letter to the Grand Pensionary De Witt) “the abrogation of that pretended French law, that enemies’ property involves in confiscation the property of friends; so that, if henceforward any effects belonging to the enemies of France be found in a free Dutch vessel, those effects alone shall be liable to confiscation; and the vessel shall be released, together with all the other property on board. But I find it impossible to obtain the object of the twenty-fourth article of my instructions, which says that the immunity of the vessel shall extend to the cargo, even if enemies’ property.” De Witt’s Letters and Negotiations, vol. i. p. 80.—Such a law as the latter would be more natural than the former. [[Note added in 1773/1797 editions.]]
[22. ] King Demetrius of Macedonia, r. 294–288 bc
[* ] Plutarch, in Demetrio.
[† ] Grotius, ubi supra.
[23. ] Between 1745 and 1747 Italy became a major battleground in the War of the Austrian Succession, with an alliance of Genoa, Naples, France, and Spain fighting against the Austrian forces.
[* ] Plutarch’s life of Agesilaüs.
[† ] Book ii. chap. ii. §13. note 5 [[Law of War and Peace.]]
[‡ ] By the Eleans, and the ancient inhabitants of Cologne. See Grotius, ibid.
[* ] The author [[Robert Molesworth of the “Present State of Denmark,” written in English, pretends that the Danes had engaged to deliver up the Dutch fleet, but that some seasonable presents made to the court of Copenhagen saved it. Chap. x.]]