regulations. Most countries have municipal regulations with regard The subject usually proto foreign levies, which regulate the conduct of their vided for by subjects in this respect. In our own country, the municipal Foreign Enlistment Act of 1819, provides that no British subjects may enter the service of a foreign state, under penalty of fine and imprisonment, unless the act be suspended. Many other states have, I believe, similar regulations. Of course, the suspension of such an act in favour of one belligerent state, to the exclusion of another, would be a dereliction of Neutrality. (1). (1) For the regulations of some of the Italian states see De Martens, Rec. III. 31, 47, CHAPTER II. General principle on this subject. Opinion of OF THE RIGHT OF PASSAGE THROUGH A NEUTRAL TERRITORY. THE rights and obligations respecting Passage through a neutral territory, depend on the same principles as the subject discussed in the last chapter. As such Passage has a direct influence on hostilities, it cannot be granted to one belligerent and be denied to the other, without an infraction of neutrality,-unless such right of passage has been granted to one belligerent by antecedent treaty, in which case, by the Positive Law of Nations, it is regarded as an innocent act, and is not considered as a dereliction of neutrality. Grotius mentions the question of Passage when treating generally of the condition of neutrals, whose duties he states as consisting in doing nothing that may assist an unjust cause, and nothing which may impede a just cause:-in a doubtful cause they ought to pursue an impartial line, as in permitting passage, affording supplies, and abstaining from assisting places besieged. (1) On the other hand, Grotius says, that those who are permitted to pass through a neutral territory, must be particular in their care to avoid doing any injury; and he cites instances in which such order had been preserved, that the passage of troops was quite innocuous to the (1) De Jure, lib. III. c. v11. § 3. neutral state: among others he quotes the Parthian expedition of Alexander Severus, where such discipline was maintained among the troops "ut non milites sed senatores dicerentur; quacumque iter milites faciebant, tribuni accincti, centuriones verecundi, milites amabiles erant," &c. (1) With regard to the right of Passage, Grotius asserts, generally, that nothing but the extremest necessity can give us any right over the property of another; and that before necessity can give us any such right, it must be shewn that the owner has not an equal necessity for the same thing. (2) Deducing from this a principle for guidance respecting the right of Passage, it would seem to be the opinion of Grotius, that before the right of passing can be claimed, from the exigency of the case, it must be shewn that the exercise of the right to forbid passage is not equally important to the sovereign of the neutral country. And, notwithstanding the examples given by Grotius of the pristine discipline of the Roman legions, it may be feared that modern armies do not abound in "respectable captains and amiable soldiers," to the extent of making the passage of an army a matter of otherwise than very grievous injury to the country through which they pass. Certainly those who last revived the eagle as their emblem did not imitate the self-denying discipline which that standard had once maintained. Vattel says, that the Passage of troops, being by no Opinion of means a matter of indifference to the state through which Vattel. they pass, cannot be claimed without the neutral sovereign's permission. "To enter his territory without his consent, is a violation of his rights of sovereignty and supreme dominion." "The tranquillity and the common safety of nations, require that each should be mistress of her own territory, and at liberty to refuse every foreign (1) De Jure, lib. III. c. vII. § 2. (2) Id. § 1. Opinion of army an entrance, when she has not departed from her natural liberties in that respect by treaties." But, if there should be any of "those very uncommon cases which admit of the most evident demonstration that the passage required is wholly unattended with inconvenience or danger," then Vattel thinks that passage should be granted, and that it may be forced in case of refusal; and he says also, that "extreme necessity" may justify forcing a passage, as when "an army find themselves exposed to imminent destruction, or unable to return to their own country, unless they pass through neutral territories. In all cases, except those of extreme necessity, Vattel says that the neutral sovereign is justified in refusing passage, by the fear of danger from admitting troops into his territories, from the fear of the resentment of the opposite party, or from the fear of having his dominions made the theatre of war. A neutral state may, he says, grant passage without the opposed belligerent having a right to complain;—but if passage is granted, or refused, to one belligerent, it must also be granted or refused to the other, "unless a change of circumstances affords 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." (1) De Martens gives it as his opinion, that a neutral sovereign may, when there are no special treaties, forbid all Passage through his territory; but that it is no violation of neutrality to allow to both parties this privilege. Moreover the granting such privilege to one party, and refusing it to the other, would not always be considered a violation of neutrality, if this conduct were already usual in time of peace, or if it were the result of general (1) Droit des Gens, liv. III. ch. vII. § 119-135. treaties anterior to a rupture. But, on the other hand, that sovereign would infringe the duties of neutrality, who, without such antecedent engagements, permitted Passage, or the levy of troops, to one belligerent and refused them to the other. (1) The subject is mentioned in a great variety of treaties, Treaties on which all coincide, in spirit, with the opinions above this subject. quoted. In the alliance between France and Switzerland, in 1452, it was stipulated that the Swiss should not allow passage through their territories to the enemies. of France; (2) and this article was inserted in a great number of subsequent treaties between the same powers; the last instance, as far as I am aware, being in the treaty of 1803. (3) In 1512, Louis XII. and the King of Navarre agreed to allow no passage to the enemies of the other party in consequence, when the King of Arragon and Castile demanded passage, he was refused; and, using this as a pretext for hostilities, he overran Navarre. (4) By the treaty of Munster, in 1648, the German princes were to be allowed passage through each other's dominions; but passage is otherwise expressly forbidden by the same treaty. (5) The clause that neither party shall allow passage to the enemies of the other, is inserted in a great many subsequent treaties, of which a list lies before me, too long for insertion. And, whenever the integrity of a neutral territory was violated by the passage of troops, it was invariably considered as an unjustifiable aggression. (6) In 1792, Russia and Austria (1) Précis, liv. VIII. ch. vII. 310. See also Moser, Versuch, X. 1. 238. (2) Dumont, Corps Dip. III. I. 193. (5) Id. VI. 1. 451, 459. (6) See the instance when Count Merci entered Switzerland in his invasion of Alsace in 1709, in Coxe's Life of Marl (3) De Martens, Rec. Supp. borough, 111. 112: for other inIII. 570. (4) Dumont, Corps Dip. IV. 1. 148. stances see Moser, Versuch, X. 1. 218, 238, et seq. |