territory by a belligerent is justifiable. The necessity of self-preservation is certainly such a case. Rivier states the rule as follows: "When a conflict arises between the right of self-preservation of a state and the duty of that state to respect the rights of another, the right of selfpreservation overrides the duty." "In certain cases," he adds, "a government is bound to violate the rights of another country for the safety of its own. That is the excuse of necessity, an application of the reason of state. It is a legitimate excuse.' "12"In certain cases," says Oppenheim, "it is a fact that violations committed in self-preservation are not prohibited by the law of nations; they are justified in cases of necessity and of this, every state must be the judge." 13 Westlake approves the destruction by the English of the Danish fleet in 1807 to prevent its falling into the hands of Napoleon, and apparently he justifies such acts as the seizure of Amelia Island by the United States in 1817; the invasion of West Florida by General Jackson in 1818 and the destruction in American waters of the Caroline by the British in 1837.14 The violation of Korean territory by the Japanese in 1904 was defended by the Japanese on the ground that the maintenance of the independence and territorial integrity of Korea was one of the objects of the war and that Japan was justified in landing troops there to prevent its occupation by the Russians. Lawrence, who has attempted to justify the conduct of the Japanese, although he admits that technically there was a violation of international law, points out that Korea's position was "curious and anomalous;" that "theoretically it had long been within Japan's

12 Principes du Droit des Gens, Vol. I, p. 277.

13 International Law, Vol. I, p. 178. On the question of the right of a state to violate the neutrality of another state on the ground of self-preservation see Vattel, Droit des Gens, Bk. II, Chap. 7; Kluber, Droit des Gens, sec. 44; Twiss, Law of Nations, Vol. I, sec. 102; Halleck, International Law, Vol. I, p. 95; Rivier, Principes, Vol. I, sec. 20; Bonfils, Droit International Public, sec. 242 et seq.; Despagnet, Droit International Public, secs. 172-175; Pradier-Fodéré, Droit International Public, Vol. I, secs. 211-286; Calvo, Droit International Public, Vol. I, secs. 208-209; Hall, International Law, 4th ed., pp. 57, 281, and Phillimore, Vol. I, secs. 210-220.

14 International Law, Part I, p. 315. The destruction of the Danish fleet, says Westlake, is essentially similar to that of a belligerent having sure information that his enemy, in order to obtain a strategic advantage, is about to march an army across the territory of a neutral clearly too weak to resist, in which circumstances it would be impossible to deny him the right of anticipating the blow in the neutral territory.

sphere of political influence," and that "practically it never had been and was never meant to be fully independent." 15 But this justification has not commended itself to all writers. The Japanese act, says Spaight,16 was based on the extremely dubious assumption that Russia would land there if the Japanese did not forestall them.17 In this respect the Japanese case is analogous to that of Germany in the present war, although in other respects they are very different. The law of selfpreservation was not involved in the Japanese case, but, on the other hand, the obligation to protect a weaker neighbor from aggression by a third state was assigned as the principal justification for the violation. In its "proposal" to the Belgian Government of August 2d, the German Government stated that it had received "positive information" that French troops intended to march upon the Meuse by way of Givet and Namur, thus leaving no doubt of France's intention to disregard the neutrality of Belgium, and consequently the German Government could not help fearing that Belgium, in spite of her willingness to prevent it, was not in a position to do so. It was therefore Germany's "imperative duty of self-preservation to forestall the attack of the enemy." The note does not state the source or nature of the information and the assertion is supported by no proof. It was contrary to the written assurance that the French Government had given the British Government on August 1st, which assurance had been communicated to the German Government. It is clear that the German Government did not place any reliance upon the assurance given by France to England of her intention to respect the treaty of neutralization, nor upon the assurance given by England to Germany that her own course would be the same irrespective of whichever belligerent should violate the treaty.

It is difficult to read the German correspondence with the Belgian and English Governments without feeling that the insincerity imputed to the French Government by Germany was merely a pretext for her violation of Belgian neutrality, and that her own intention from the first was to

15 War and Neutrality in the Far East, pp. 208 et seq.

16 War Rights in Land Warfare, p. 481.

17 See also Hershey, International Law in the Russo-Japanese War, pp. 70 et seq., and Smith & Sibley, International Law as Interpreted during the Russo-Japanese War, pp. 22-23.

send her troops through Belgium regardless of the action of the French. Under any process of construction, the right of self-preservation was pushed to extraordinary lengths. At the time of the ultimatum to Belgium, France had not violated Belgian neutrality; even according to the admission of the German Government, there existed only an "intention" to do so,18 and in view of the public assurance which France had given England of her purpose to respect the neutralization treaty, Germany should have waited for an overt act. The excuse of necessity as a justification for violating the law, says Rivier, 19 is legitimate only when the violation is necessary and not merely a simple utility. If the plea of necessity is valid in this case, it seems quite useless for states to engage hereafter to respect the rights of one another, for treaties will be in truth but "scraps of paper" and international guarantees what Frederick the Great conceived them to be, "works of filigree, more suited to satisfy the eyes than of any utility."

We come now to the second question raised in connection with the violation of Belgian neutrality, namely, whether Belgium could have granted the German demand for "friendly neutrality, entailing free passage of German troops through her territory" without herself violating a well settled rule of international law and thereby rendering herself liable to attack by France for the advantage thus given to her enemy.

The ancient publicists generally held that the troops of one belligerent had an absolute right of passage through neutral territory and that this right could not be refused without injustice. Even Grotius in his day maintained that neutral nations ought to allow the right of passage to an army seeking to recover its rights in a just war and that in such cases it might be taken by force.20 Vattel held that the right of free passage might be granted so long as the privilege was accorded to both or all belligerents equally, 21 and Wheaton affirmed that it could be granted or

18 Later the German press made the charge that both French and English troops had entered Belgium before the outbreak of the war. To this charge the Belgian Minister of War replied that "before August 3d, not a single French or English soldier had set foot on Belgian territory." London Times (weekly ed.), Oct. 2, 1914. 19 Principes, Vol. I, 278.

20 Lawrence's Wheaton, p. 714, n. 2.

21 Droit des Gens, Bk. II, Ch. VII, secs. 119-121.

withheld at the discretion of the neutral, and that its being granted or withheld constituted no ground of complaint on the part of the other belligerent provided the same privilege was granted to him, unless there were sufficient reasons for withholding it.22 Phillimore, 23 Kent,2 24 Manning, Sir William Scott,25 Twiss, 26 Martens, 27 and many others have pronounced in favor of substantially the same view. 28

Baty, who has made a careful study of the subject, states that the jurists of the first half of the nineteenth century, with the possible exception of Kluber (who recognized the right of passage where it had been granted by treaty before the outbreak of war), were unanimous in following Grotius and Vattel in their view that neutrals might permit the right of passage so long as the permission were granted impartially.29 But since the middle of the nineteenth century opinion has been practically unanimous against this view. Hautefeuille in 1848 was the first writer to adopt the view that a neutral state is bound to refuse the right of passage to any and all belligerents, even where the right has been promised by treaty, and this rule, observes Halleck, is most consonant with the general principles of neutrality. "The passage of troops" says Hall, "for the sole and obvious purpose of attack, is clearly forbidden." 30 "It is now generally recognized," says Oppenheim, "that a violation of the duty of impartiality is involved when a neutral allows a belligerent the passage of troops or the transport of war material over its territory. And it matters not whether a neutral give such permission to one of the belligerents or to both alike." 31 Lawrence 32 and other writers hold the same view.

A few modern writers, among them Calvo and Bluntschli, allow neutrals to grant the right of passage in pursuance of treaty stipulations, if

22 Lawrence's Wheaton, Part IV, Chap. III, sec. 8.

23 International Law, Vol. III, sec. CLIX.

24 Abdy's Kent, p. 328.

25 Case of the Twee Gebroeders.

"Law of Nations, sec. 218.

"Précis, Vol. II, sec. 310.

* Compare Halleck, Elements of International Law, Chap. XXII, sec. 5.

29 International Law in South Africa, p. 73.

International Law, p. 624.

" International Law, Vol. II, p. 345.

32 Principles of International Law, 3rd ed., p. 524.

the treaty has been made prior to the outbreak of the war. "The fulfillment of such an obligation," says Bluntschli, "could not be regarded as assistance to the belligerent and therefore as a violation of neutrality." It was in pursuance of a treaty (signed June 11, 1891) that Portugal granted permission to the English Government to transport troops through Portuguese East Africa during the Boer War. The Portuguese Government claimed that the grant of passage was in fulfilment of a convention concluded long before the war and could not be regarded as a "superfluous support of one of the belligerent parties or as a violation of the duties imposed by neutrality." The English Government on its part contended that in this particular case it was only availing itself of existing treaty rights which the neutral cheerfully granted. English writers at the time had much to say in defense of the policy of "benevolent neutrality," exactly the same thing as the "friendly neutrality" which the Germans demanded of Belgium in 1914,-and they cited the authority of such precedents as that of 1877, when Roumania, in pursuance of a treaty, granted the right of passage to Russian troops in their war against Turkey.34 The Transvaal Government protested, and, clearly, with justice. Spaight, an English writer, affirms that the procedure of Portugal "was hardly conformable with the strict canon of the law of neutrality." 35 Baty points out that the treaty of 1891 contemplated only the right of commercial passage and it was only by a forced interpretation that it could be construed to cover the transportation of troops and military supplies.36 There can be little doubt that the law of neutrality as then generally recognized required of Portugal not merely equal treatment of both belligerents, but it imposed upon her the duty of absolute prohibition in respect to the use of her territory by either belligerent and her conduct, as well as that of England, has been almost universally condemned.37

If any doubt existed at the time in regard to the rights of belligerents

33 Droit International Codifié, tr. by Lardy, sec. 771.

34 See Campbell, Neutral Rights and Obligations in the Anglo-Boer War, p. 67, where the whole question of the right of Portugal to grant free passage to the British troops is fully examined.

35 War Rights in Land Warfare, p. 485.

36 International Law in South Africa, pp. 76-77.

"Compare Campbell, op. cit., pp. 66-70.