NEUTRALIZATION

A Justice of the Supreme Court of the United States, who has inherited a taste for epigrammatic expression, made a notable statement on a public occasion not long ago. The learned Justice said that it was because the law is an arbitrary rather than a logical system that it demanded unquestioning obedience. Though the fact, or at least the mode of expression, may be challenged, it is certain that the foundations of legal principles and procedure seem far to seek sometimes, in absolute justice or in common consent, though upon the latter they must ultimately depend and though the former is their assumed foundation. The Roman law, which expresses the statutory grants of the ruler, and the common law, which maintains the claims and rights of the subject, though their appeal is to a final standard of righteousness, are not always discussed from the point of view of natural rights or innate principles of justice and morality. Indeed, should appeals be made upon such considerations the inference would not improbably be that the authors of them were not supported by accepted canons or acknowledged rules.

But, in approaching the matter of international law, which may be said to be in a formative state so that the question has been propounded seriously whether it can properly be called law at all, the discussion may be undertaken freely with some regard to ethical considerations. As a matter of fact, as international law has no authority to enforce its edicts and no appropriate punishments to inflict, some writers on the subject have rested the claim for its inclusion in jurisprudence, not upon the expositions of the science but upon the definition of the author of the Ecclesiastical Polity,

NOTE. It is perhaps unnecessary to say that the views expressed by Mr. Winslow in his interesting article are personal and should not be taken as indicating either the policy or views of the AMERICAN JOURNAL OF INTERNATIONAL LAW. The reference to the JOURNAL and its readers in Mr. Winslow's last paragraph has suggested this statement. - MANAGING EDITOR.

the "judicious" Hooker, that law is "any rule or canon whereby actions are framed."

In dealing with the specific question of neutralization it is certainly proper enough to introduce moral and philosophical considerations. The subject and its relation to neutrality are very imperfectly apprehended. Even the terminology is confused in state papers and treaties, and few commentators have discussed the subject with clearness and accuracy. Neutrality, the state of being neutral and taking no side whatever with nations engaged in war, was hardly touched upon by the earlier writers who could not define that which was scarcely recognized at all. Grotius has no other name for neutrals than Medii," and Bynkershoek calls a neutral "non-hostis.” Vattel, Wheaton, Halleck, Woolsey, Dana, the Lawrences, Phillimore, and many other authorities have made good progress, however, in elucidating the principles of neutrality.

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Wheaton recognizes two types of neutrality—" perfect neutrality," which arises from the spontaneous attitude of the neutral state itself, and "imperfect, qualified, or conventional neutrality," which is the result of an agreement between the powers (constituting the act of neutralization). The latter has received but little expert attention. One critic asserts, indeed, that Wheaton's classification in which Halleck follows him can not be maintained, because the condition described in the second division might imply an agreement of the neutralized state made before the outbreak of war to do something inimical to one of the belligerents. Of course, Wheaton's "conventionally neutralized" state could never be supposed to contract obligations in time of peace inconsistent with its peculiar duties in time of war, to refrain from such obligations being an essential quality of neutralization.

The name of neutralization is loosely applied to the agreement made between the United States and Great Britain in 1817, to maintain a merely nominal force on the Great Lakes, and it seems inaccurate to apply the term to arrangements for the abstention from fortifying highways of commerce. The assent of the great powers of Europe -and of the United States perhaps, since the Geneva Conference (without protest from the smaller states) is essential to

the neutralization of territory. It is this neutralization which seems the only measure that offers itself with an absolute and reasonable hope, according to the oft-quoted saying of Whewell, as "the true road to a perpetual peace."

The development of individual liberty within the state follows the settlement of public order. With a similar progression the individual nation now seeks, for the first time, the opportunity for itself which may be obtained through the established comity of nations. Hitherto, the neutralization of a state has been established, not primarily for its own advantage, but for the safety and for the benefit of its more powerful neighbors.

Such was the motive for Swiss neutralization. By the Treaty of Paris, May 30, 1814, the limits of France were re-established virtually as they had existed in 1792. By a separate and secret article of this treaty, the disposal of the territories renounced by France in the open treaty and the conditions tending to produce a system of real and durable equilibrium in Europe were to be decided upon by the allied powers among themselves. Thus, while the Treaty of Paris was made between France, Great Britain, Russia, Prussia, and Austria, the pacificatory and restorative measures were confided to the allied four great powers; France was to have no vote in the congress, which was convened by these powers in conformity with the secret article of the Paris Treaty. But when it assembled at Vienna November 1, 1814, the adroit audacity of Talleyrand and the disagreement of the allies secured for France a prominent position of influence. Eight powers actually composed the congressGreat Britain, Russia, Austria, Prussia, France, Spain, Portugal, and Sweden. Russia's claims upon Poland created a disagreement among the powers, as did the claims of Prussia upon a part of the same territory and upon the Rhine provinces. But the final act, which Spain alone refused to sign, was agreed upon June 9, 1815. The relations of Switzerland were determined by a declaration of the powers forming the congress, dated March 20, 1815, by the act of accession of the cantons of the same date, and by the final act. Switzerland by these acts and declarations was to take the relation. of perpetual neutrality, and (in order to secure this end the better) a

treaty with the King of Sardinia of May 15, 1815 provided that the Provinces of Chablais and Faucigny, south of Lake Leman, and all of Savoy north of Ugines, were to hold the same neutral attitude. Thus, Switzerland, Chablais and Faucigny and all Savoy north of Ugines were made neutral. This position of Switzerland, so constituted in 1815 for the sake of the peace of Europe, has never been changed and the other powers have always respected its neutrality. Holland and Belgium were united by the congress. They were disrupted in 1830, and by the Treaty of London, April 19, 1839, between Holland and the five great powers- Great Britain, Russia, France, Austria, and Prussia- the Kingdom of Belgium was formed and the condition of perpetual neutrality imposed upon it. This condition was established in order that the Kingdom might be a barrier between the rivals, France and Germany. Its integrity has been preserved. It was threatened indeed during the FrancoPrussian war in 1870, when Great Britain immediately concluded two conventions- one between herself, Belgium, and Prussia, and another between herself, Belgium, and France of which the conditions were that if France violated the integrity or neutrality of Belgium, Great Britian would join her forces to those of Prussia and, mutatis mutandis, that if Prussia were the aggressor, Great Britain would ally herself to France.

The Dutch United Provinces, with the larger part of the Austrian Netherlands, were constituted into a Kingdom of the Netherlands, under the Prince of Orange Nassau, including the Grand Duchy of Luxemburg and a part of the Duchy of Bouillon. The Grand Duchy of Luxemburg was added to Holland as an independent state, becoming a member of the German Confederation, and its boundaries, established at Vienna, were changed by the act annexed to the treaty of April 19, 1839. A part of the old territory of Luxemburg was taken from the Kingdom of the Netherlands and annexed to the Duchy of Limburg. After the disruption of the German Confederation in 1866, Luxemburg was garrisoned by Prussian troops. But owing to the remonstrances of France the matter was brought before a conference of the powers in London and by treaty of May 11, 1867, between Great Britain, Austria, Belgium,

France, Italy, the Netherlands, Prussia, and Russia, the status quo ante of the Grand Duchy of Luxemburg was restored and it was made an open city (ville ouverte), while all the parties to the treaty agreed to respect its neutrality. Luxemburg, on her part, agreed to disarm and dismantle the frontier forts and all others within her boundaries, the provision of neutrality rendering them unnecessary. The city of Luxemburg was to cease being a fortified city, the Grand Duke of Luxemburg, however, being permitted to keep a stated body of troops for the police protection of his own subjects. Prussia agreed to withdraw all troops which had previously been maintained within the boundaries of Luxemburg. The Grand Duke of Luxemburg was to take all necessary steps, by virtue of his position as Grand Duke, to carry into effect the provisions of the treaty, and to convert the city of Luxemburg from an armed to an open city. In 1870, during the Franco-Prussian war, Prussia complained that France had violated the neutrality of Luxemburg. This caused much discussion and correspondence, but the treaty of neutralization was not, however, disavowed by Prussia. Since that time the neutrality of Luxemburg has been respected by all the powers. Neutralization is not demanded to-day for the protection of the great powers from belligerent operations. The smaller and weaker states are demanding for themselves the privileges of neutralization, with the consequent relief from the dangers of aggression, intimidation, or annexation and from the heavy burdens of militarism. In our time these privileges and their guaranty are coming to be recognized as an individual and personal right of the state. Norway has secured for herself a partial, and is urging a general, neutralization. The subject is being agitated in Holland. Denmark has an active society for the promotion of the neutralization of that Kingdom, which has been so ably advocated by F. de Martens and other publicists, and a movement was made last year in Santo Domingo to instruct its delegates to urge its neutralization upon The Hague.

The greater the number of neutralized states, the more remote in a geometrical ratio, become the possibilities of war. The neutralized state itself renounces all idea of international contests. It exists