D 615 
 .16 
 Copy 1 
 
 The International Status of the Grand Duchy of 
 
 Luxemburg and the Kingdom of Belgium 
 
 in relation to the present 
 
 European War 
 
 BY 
 
 Theodore P. Ion, D. C. L. 
 
 FORMERLY Professor of International Law at thk 
 Boston University Law School 
 
 Rfprinted from Michigan Law Rrvikw, Volumk xih. Nos. 5 & 6, 
 March & April, 1915 
 

 THE INTERNATIONAL STATUS OF THE GRAND DUCHY 
 OF LUXEMBURG AND THE KINGDOM OF 
 BELGIUM IN RELATION TO THE PRESENT 
 EUROPEAN WAR. 
 
 "You are always talking to me of "Just for a word, 'neutrality,' a 
 principles as if your public law were word, which in war time had so often 
 anything to me; I do not know what heen disregarded — just for a scrap of 
 it means. What do you suppose that paper — Great Britain was going to 
 all your iparchments and treaties sig- make war on a kindred nation." — 
 nify to me." — Alexander I. to Talley- Dr. von Bethmann-Hollweg , German 
 rand, quoted by John Morley in Life Imperial Chancellor, to Sir E. Go- 
 of William E. Gladstone. schen, British Ambassador at Berlin. 
 
 See "White Paper" of Great Britain. 
 
 THE International status of the Grand Duchy of Luxemburg and 
 of the Kingdom of Belgium, through whose territory the army 
 of Kaiser William II marched, in order, to use the expression of 
 Grotius, "to meet the enemy," has been, since the outbreak of the 
 present European war, the crucial point of discussion between the 
 diplomatists and publicists of the belligerents, each trying to im- 
 press upon the neutral public the justice of the cause of their 
 country. 
 
 But speaking generally, in the eyes of the neutrals, in the present 
 world-turmoil, one of the most civilized nations of Europe stands 
 before the forum of justice as the disturber of universal peace and 
 the violator of the law of nations. Leaving to future historians to 
 pass upon the first charge, let us see whether the second has any 
 foundation justifying the criticisms of and the abuses heaped upon 
 the ruler as well as the government of the nation accused of the 
 flagrant misuse of its might for the furtherance of its national in- 
 terests. 
 
 The German Kaiser and his ministers are accused of having 
 trampled underfoot the fundamental rights of the weak States by 
 violating their independence and neutrality, thus acting not only 
 contrary to international usage, but also in direct violation of the in- 
 ternational compacts of which their government was one of the prin- 
 cipal contracting parties. 
 
 Limiting ourselves to these particular charges, let us first examine 
 the violation of the conventional right in order to see whether the 
 accusation is well founded and the accused nation deserves to be, 
 so to say, outlawed from the membership of the family of nations. 
 
 The diplomatic instruments bearing upon the question are: first, 
 The Treaties of Guaranty of the Neutrality of Belgium of April 19, 
 1839, and that of May 11, 1867, of the Grand Duchy of Luxemburg; 
 second, The Hague Conventions of October 18, 1907, on the rights 
 and duties of neutrals in time of war on land. 
 
The neutral status of Belgium is inserted in three separate treaties 
 concluded at London on April 19, 1839. 
 
 The first is signed by the representatives of Austria, France, Great 
 Britain, Prussia, and Russia on one part, and the Netherlands (Hol- 
 land) on the other, which after acknowledging the dissolution of the 
 union of the Netherlands and Belgium, declares in article VII of 
 the annex to this treaty that "Belgium within the limits specified in 
 articles I, II and IV, shall form an independent and perpetually neu- 
 tral State. It shall be bound to observe such neutrality towards all 
 other States." 
 
 The second treaty is that which separates Belgium from Holland 
 and in that also the perpetual neutrality of the former country is 
 recognized. 
 
 The third treaty is that concluded between the same five Powers 
 and Belgium, in which the following article appears : 
 
 "Article I * * * * they (the five Powers) declare that the articles 
 herewith annexed, and forming the tenor of the treaty concluded 
 this day between His Majesty the King of the Belgians and His 
 Majesty the King of the Netherlands, Grand Duke of Luxemburg, 
 are considered as having the same force as if they were textually 
 inserted in the present act, and they are thus placed under the guar- 
 antee of their said Majesties (of the five Powers)." 
 
 It should be observed that Holland, although one of the contract- 
 ing parties to one of the above instruments, did not guarantee the 
 neutraHty of Belgium, but merely recognized that fact ; therefore, al- 
 though bound to respect it, she is not under any obligation to 
 defend it in case it is violated by others. 
 
 Now has Germany violated these treaties and if so, in what way 
 does she justify her action? 
 
 The German government, in answering the charges of the viola- 
 tion of her treaty engagements, sets up two kinds of defences. On 
 one hand, acknowledging bluntly its guilt through the mouths of its 
 highest officials, namely, the Imperial Chancellor and the Secretary 
 of State for Foreign Affairs, tries to justify its unlawful actions, 
 "on the ground of supreme necessity", and "high military reasons" ; 
 on the other hand, she accuses Belgium that she connived with the 
 enemies of Germany to attack or facilitate an attack through her 
 territory, against the Kaiser's country. 
 
 It should be observed that no charge whatever is made against 
 the Grand Duchy of Luxemburg, whose territory has been equally 
 invaded, in defiance of the treaty of 1867, which guaranteed also 
 the neutrality of that country, and of which Prussia is one of the 
 principal contracting parties. 
 
 One of the so-called hostile acts attributed to the Belgian gov- 
 ernment, is the embargo placed just before the outbreak of the war, 
 
 GlXt 
 JUL IS I9li 
 
— 3 — 
 
 on cereals, which measure seems to have affected some corn destined 
 for Germany. This charge is so trifling- that it hardly needs any 
 refutation. Suffice it only to say that even had it been true, it could 
 certainly not have justified an invasion of Belgium ; besides, the 
 official correspondence of Belgium shows that the prohibition of 
 cereals was of a general character, and that as soon as it was found 
 out that the particular corn was in transit for Germany it was 
 immediately released.^ 
 
 The other charge against Belgium — and the only serious one — is 
 that the Belgian government, some time before the war, was, on one 
 hand helping the designs of France, who, according to "reliable in- 
 formation,"^ was planning to attack Germany ; on the other hand, 
 was plotting with Great Britain by acquiescing in the landing of 
 a British army in Belgium. 
 
 In proof of this "plot" the German government made public cer- 
 tain so-called incriminating documents, which, unfortunately for 
 Germany, rather weaken than strengthen her case. Thus, in the 
 minutes of the Conference between the Chief of the General Staff 
 of Belgium and the British Military Attache at Brussels, a passage 
 appears, which translated into English reads as follows: "The Mil- 
 itary Attache answered that he knew it (that Great Britain could 
 not land any troops in Belgium, without the consent of the latter 
 country), but as we (Belgians) were not able to prevent the Ger- 
 mans from marching right on us, England would land her troops in 
 Belgium." 
 
 Again in the original draft of the report of the Belgian Major 
 General to the Belgian Minister of War, concerning a conference 
 with the British Military Attache, it is stated that "in case Belgium 
 should be attacked the sending of about 100,000 troops was provided 
 for." And that "the entry of the English in Belgium would only 
 take place after the violation of our (Belgian) neutrality by Ger- 
 many."^ 
 
 It is self-evident from these "discoveries," that if there was any 
 "plot" it was for the purpose of defending Belgium from an attack 
 by Germany, which was quite legitimate and within the letter and 
 the spirit of the treaty of guarantee, and not in order to invade or 
 facilitate an incursion to the German Fatherland. 
 
 Leaving aside the subtle arguments used by the Kaiser's Ministers 
 and the unconvincing dialectics of their apologists, for the purpose 
 of establishing the so-called guilt of the Belgian authorities as to 
 
 ^ Gray Paper of Belgium, no. 79. 
 ^ Cray Paper of Belgium, no. 19. 
 
 'New York Sun of December 20, 1914, in papers published by Dr. Bernhard Dern- 
 burg, formerly German Colonial Secretary. 
 
— 4 — 
 
 these charges and looking into the facts of the case as they are 
 presented by both sides, one cannot help seeing that the government 
 of King Albert, far from conniving with the enemies of Germany to 
 attack the latter, did on the contrary everything in its power to 
 prevent France and Germany from making the territory of Belgium 
 the theatre of the war operations. 
 
 From the perusal of the official papers and other facts known 
 already, an impartial observer cannot see anything which in the 
 slightest degree throws a suspicion of bad faith on the part of the 
 Belgian Ministers. If there is one thing that Belgium can be accused 
 of both by France and Germany it is that, ever since her independ- 
 ence in 1 83 1, she never showed any inclination to be incorporated into 
 either of her powerful neighbors. On the contrary, she adhered stead- 
 fastly to her right to shape her own political destiny, regardless of 
 the community of language or affinity of nationality with France or 
 Germany. The people of Belgium, be they Belgian or Flemish, had 
 one desire, and that was to live in peace within their present geo- 
 graphical limits, and to further the commercial, industrial and in- 
 tellectual development of their country. As for the question of 
 concerting measures for the defence of their territory, with any of 
 the signatories of the Treaty of Guarantee of 1839, the Belgian gov- 
 ernment was more than justified in appealing to any of these Powers 
 to assist her to repel any actual or contingent invasion of her ter- 
 ritory. It was not only her right to do so, but also her duty. Hence 
 the construction of fortresses and other means of defence under- 
 taken by Belgium ever since her independence.* Hence the existence 
 of a standing army. That right was never questioned by any of the 
 Powers who guaranteed her neutrality. At the time of the conclusion 
 of the Treaty of 1867 which guaranteed the neutrality of Luxemburg, 
 and on the adoption of Article III of that instrument, by which the 
 government of Luxemburg undertook not to maintain in their ter- 
 ritory any fortified places or a military establishment, the Belgian 
 Plenipotentiary fearing lest such stipulation might be used as an 
 argument against his country's right of having fortified places and 
 generally an army for the defence of Belgium, made the following 
 declaration : "It is well understood," he said, "that Article III does 
 not affect the right of other neutralized states to preserve, and if 
 necessary, to improve, their fortified places and means of defence." 
 Not only was no objection made to this declaration by any of the 
 Plenipotentiaries of the contracting parties, but they acquiesced in 
 it, the declaration being inserted in the 4th Protocol of the Con- 
 ference.^ 
 
 * Dr. Geffcken in Holtzendorf's des Volkerrechts IV. 136. 
 
 ' E. Servais, Le Grand Duche de Luxemburg et le Traite de Londres, 174. 
 
— 5 — 
 
 While official Germany pleads guilty to the charge of the viola- 
 tion of the Treaty of 1839 guaranteeing the independence and neu- 
 trality of Belgium, and tries, in an afterthought, to justify her 
 action by accusing the Belgian government of plotting with the 
 enemies of Germany, in the hope of palliating the effect of her 
 wrongful act on public opinion, her apologists, be they official or 
 officious, becoming "more Royalists than the King" of Prussia (al- 
 though some of them, no doubt, work, much to their credit, pour 
 le Roi de Prusse) strain every nerve to prove either that the Treaty 
 of 1839 was obsolescent or that the Kaiser was justified in disre- 
 garding it because the supreme necessity of the State required it. In 
 fact while the German government does not question the validity of 
 that instrument its apologists consider it as not being binding upon 
 the German Empire. 
 
 One of them,*^ after making a distinction between "guaranteed" 
 and "ordinary" neutrality, lays down the rule that a belligerent is not 
 under any special obligation to observe the "ordinary" neutrality. In 
 plain words that, in the absence of a treaty guaranteeing the neutral- 
 ity of a state, a belligerent, may, if it thinks fit, march his army 
 against her enemy, across the territory of a neutral state, against 
 the consent of the latter. After laying down this premise and draw- 
 ing the above conclusion, he enters into the discussion of his prin- 
 cipal subject as to whether Germany has, in the present war, commit- 
 ted an illegal act by violating the guaranteed neutrality of Belgium. 
 In the first place he questions the validity of the treaty of 1839, 
 which guaranteed the "independence and neutrality of Belgium." 
 The reasons given for the support of that view are the following : 
 
 First. That the Treaty of 1839 was signed by Prussia, and not 
 by the present German Empire. 
 
 Second. That Belgium, is now, according to his opinion, a world 
 power, with many millions of inhabitants, a large army, and ex- 
 tensive colonies and lastly "an active commerce mediated by its own 
 marine, with many, if not all, parts of the world." 
 
 It should, however, be at the outset stated that the meaning of 
 the word "perpetual" ought not to be misunderstood and by giving 
 to it a false construction try to show its so-called absurdity. It is 
 used in treaties recognizing or guaranteeing the permanent neutrality 
 of States in order to distinguish it from temporary neutrality, namely 
 from that of the states who chose to remain neutral during a war 
 between other Powers. While non-belligerent States are not under 
 any obligation to be neutral, the States under perpetual neutrality are 
 bound to keep the peace, unless they are attacked, as it is now the 
 
 " Prof. John W. Burgess of Columbia University, New York Times of October 28, 
 1914. 
 
— 6 — 
 
 case of Belgium. The States guaranteeing such perpetual neutrality 
 are undoubtedly bound to respect it, as is the case of Switzerland, 
 and in some cases, to defend such State if attacked, as is the case of 
 Belgium. It is, however, beyond question that notwithstanding the 
 word perpetual, a new treaty may alter such situation, and it is not 
 less true that as long as such treaty is in existence, it would be, to 
 use the words of the German Imperial Chancellor, "3. violation of the 
 dictates of international law" to violate the neutrality of such a state 
 in order to reach the enemy's country "by the quickest and easiest 
 route," as the German Secretary of State officially declared. 
 
 Prof. Burgess, in order to prove the soundness of his view as to the 
 obsolescence of the treaty of 1839, quotes the well known passage 
 from Mr. Gladstone's speech on Belgian neutrality, to which we 
 shall hereafter refer, and which has now become the shibboleth, so to 
 say, of the defenders of the rights and wrongs of Germany.^ 
 
 Another argument that is used by the apologists of Germany in 
 order to prove their contention as to the non-validity of that instru- 
 ment, is the fact of the conclusion of two additional treaties between 
 Great Britain on one part and France and Prussia on the other, dur- 
 ing the Franco-German war of 1870, for the preservation of the Bel- 
 gian neutrality by the then belligerents. 
 
 As the views of most of the apologists of Germany evidently repre- 
 sent the opinion of intellectual Germany, it may be necessary to give 
 some explanations, so that the public may form a correct opinion as 
 to the legal side of the points at issue. 
 
 The first question to be examined is the validity of the treaty of 
 1839 guaranteeing the perpetual neutrality of the Kingdom of Bel- 
 gium in regard to the German Empire. 
 
 Did the creation of the German Empire in 1871, affect in any way 
 the validity of the treaty of 1839 of which Prussia was one of the 
 principal contracting parties ? 
 
 As a general rule. States which form a confederation or a federal 
 union, retain their right of concluding treaties, unless it is specifically 
 withdrawn from them by the act which creates their union. Conse- 
 quently pre-existing treaties are considered as being binding upon 
 them unless such compacts are of a character seriously compromising 
 or nullifying the confederation or union, and in the last case their 
 denunciation may be justified. 
 
 The Constitutional Act of 187 1 establishing the German Empire 
 did not obHterate the political entity of the States that entered the 
 union and least of all of the Kingdom of Prussia whose sovereign 
 
 ' Dr. Bernard Dernburg, formerly German Colonial Secretary, in North American 
 Review, December 1914, and New York Sun of December 6, 1914. Also Dr. EJdmund 
 von Mach in New York Times of November i, 1914. 
 
— 7 — 
 
 became the Emperor of the federal union. Some of these States 
 retained even the right of concluding certain kinds of treaties and in a 
 limited way preserved the right of sending and receiving diplomatic 
 agents. 
 
 The question oi the validity of treaties concluded by some of the 
 German States before the Constitutional Act of 187 1 was tested in 
 the courts of this country more than once. Thus, In re Thomas,^ in 
 which the point at issue was whether a fugitive from justice from 
 Bavaria could be extradited by virtue of the treaty of extradition 
 concluded between the United States and Bavaria, before the creation 
 of the German Empire in 1871, Mr. Justice Blatchford in deciding 
 the case, said : 
 
 "It is contended on the part of Thomas (the person whose extradi- 
 tion was sought by the representative of Germany) that the conven- 
 tion with Bavaria was abrogated by the absorption of Bavaria into 
 the German Empire. An examination oi the provisions of the Con- 
 stitution of the German Empire does not disclose anything which in- 
 dicates that the existing treaties between the several States composing 
 the confederation, called the German Empire, and foreign countries, 
 were annulled or to be considered as abrogated." The same question 
 came up before the Supreme Court of the United States in 1901 in 
 the case of Terlinden v. Ames^ when the highest court of the land 
 endorsed the opinion of Judge Blatchford. In this case also the issue 
 was the same, namely, as to whether the treaty of extradition con- 
 cluded between the United States and Prussia before the Act of 
 187 1, was still in force, the official representative of Germany who 
 applied for the extradition of the Prussian subject contending that it 
 was valid, while the person whose extradition was asked claimed that 
 it was null and void, because, as he alleged, Prussia concluded the 
 treaty before the creation of the German Empire. Mr. Justice Fuller, 
 handing down the decision of the court, said: "Undoubtedly 
 treaties may be terminated by the absorption of Powers into other 
 nationalities and the loss of separate existence as in the case of 
 Hanover and Nassau, which became by conquest incorporated into 
 the Kingdom of Prussia in 1866. Cessation of independent existence 
 rendered the execution of treaties impossible. But where sovereignty 
 in that respect is not extinguished, and the power to execute remains 
 unimpaired, outstanding treaties cannot be regarded as avoided be- 
 cause of impossibility of performance. On the adoption of the Con- 
 stitution of the German Empire, the King of Prussia was found to be 
 the chief executive of the North German Union endowed with power 
 to carry into effect its international obligations, and those of his 
 
 * la Blatch 370. 
 "184 U. S. 270. 
 
Kingdom, and it perpetuated and confirmed that situation. * * * 
 We do not find in this constitution any provision which in itself 
 operated to abrogate existing treaties or to affect the status of the 
 Kingdom of Prussia in that regard. Nor is there anything in the 
 record to indicate that outstanding treaty obligations have been dis- 
 regarded since its adoption. So far from that being so, those obliga- 
 tions have been faithfully observed." 
 
 Now to what category does the treaty of 1839, guaranteeing the 
 neutrality and independence of Belgium belong? Is it one of those 
 instruments that might have compromised the union of the German 
 Empire and consequently non-obligatory upon it, if denounced in 
 proper time ? Strictly speaking the answer may be in the affirmative al- 
 though there may be strong reasons for holding the contrary, on ac- 
 count of the preponderant position held by Prussia in the confedera- 
 tion and the fact that her sovereign was also the Emperor of the Ger- 
 man Empire. Accepting then the construction most favorable to Ger- 
 many, one would naturally ask why the far-sighted Prince Bismarck 
 did not at that time denounce the treaty of 1839 as being detrimental 
 to the interests of the Empire? To ask the question is to answer it. 
 Simply because he thought that the existence of that instrument at 
 that time (the school of Bernhardi being of later creation) corre- 
 sponded to the interests of Germany, as well as of Prussia. The rea- 
 son that it was not denounced up to the outbreak of the present war 
 — although the plans for the invasion of France through Belgium 
 were prepared long ago — was no doubt the fear of involving Germany 
 in a war with Great Britain. It was very prudently thought that 
 military considerations dictated silence and circumspection until the 
 arrival of the day of surprise, when diplomatic papers may easily be 
 cast to the waste-basket, since "the vital interests" of Germany were 
 considered as being paramount to any "scraps of paper" and that 
 "necessity knew no law."^° 
 
 Coming now to the other argument that the creation of a large 
 army, the building of fortresses and the acquisition of a colony of 
 Belgium invalidated the treaty of 1839, we should from the outset 
 state that the discussion will be only academic because official Ger- 
 many did not set up this defense. 
 
 The right of Belgium to have an army, irrespective of its size, was 
 never questioned by any of the parties to the treaty of 1839. Not 
 only can the increase of the army of Belgium and the building of 
 fortresses in no way affect the treaty of neutrality, but on the con- 
 trary it can strengthen it by its effectiveness better to defend the 
 neutralized neutrality against a foreign invasion. As a general ruls 
 
 " Dr. von Bethmann-Hollweg, the Imperial Chancellor, speaking in the Reichstag 
 on December 2, 1914, said "We notified Belgium that the necessities of self-defence would 
 compel us to march through Belgium." 
 
all the perpetually neutralized states have that right, unless it is 
 specifically withdrawn from them as it has been done in the treaty 
 of 1867 guaranteeing the permanent neutrality of Luxemburg. 
 
 Now as for the other argument that the acquisition by Belgium of 
 a colony in Africa vitiates, so to say, the treaty of 1839 guarantee- 
 ing her neutrality, it should be admitted that this theory is not new, 
 and has already been discussed by various internationalists, particu- 
 larly at the time of the incorporation of the independent state of 
 Congo to Belgium, which took place, as it is known, in 1908, through 
 the cession of the rights of sovereignty over the former state by the 
 late King Leopold to Belgium. 
 
 The controversy, however, on this point has only been academic — 
 and will therefore be treated as such — because the contracting parties 
 to the treaty of 1839 have never raised the question. Moreover, some 
 of them have actually recognized, either directly or indirectly, the 
 annexation of the state of Congo to Belgium without any reservation 
 whatever as to their treaty obligations towards the latter country.^^ 
 
 In fact, there exist two doctrinal views on the point. According 
 to the one, which is that of the great majority of the writers who 
 have discussed this question, the acquisition of the Independent State 
 of Congo by Belgium did not in the least impair the validity of the 
 treaty of 1839, but they also assert that the obligations resting upon 
 the guaranteeing Powers by that treaty do not extend to the colonial 
 possessions of Belgium, because the contracting parties to that instru- 
 ment guaranteed only the territory of Belgium proper.^- 
 
 " Treaty concluded between Belgium and France as to the right of presumption of 
 the latter Power over the Belgium Colony of Congo, in case Belgium should subsequently 
 wish to renounce her right of sovereignty over that African Colony. Also a treaty with 
 Great Britain in regard to the lease in perpetuity of certain territory to Congo, which 
 territory will revert to the former country in case Belgium wished to abandon her 
 African colony. See particulars in an elaborate article entitled "^'Annexion du Congo 
 a la Belgique," by Paul Fanchille, in Revue Generale de Droit International Public II, 
 432 et seq. 1895. The German Government recognized the annexation of Congo to 
 Belgium. Thus, on January 22, 1909, the Under Secretary of Foreign Affairs of Ger- 
 many, speaking before the Budget Commission, declared that his Government took notice 
 of the communication of the Belgian Government that the Independent State of Congo 
 was incorporated to Belgium and that therefore the annexation became an accomplished 
 fact. Roger Brunet, L' Annexion du Congo a la Belgique et le Droit International 164. 
 
 ^- A. Rivier, Principes du Droit des Gens, I, 172-173. R. Brunet, L' Annexion du 
 Congo a la Belgique, 141-143. F. Descamps, I^a Neutralite de la Belgique, 50 et seq. 
 A. Merignac, Traite de Droit Public International II, 53-54- E. Nys, I<e Droit Interna- 
 tional I, 429 et seq ; the same writer in Etudes de Droit International, deuxieme serie, 
 145; the same writer in Revue de Droit International et de Legislation Comparee. 
 Deuxieme serie III, 28, 1901. J. Westlake in same review, 394. This distinguished Eng- 
 lish author is of opinion that it is safer in such cases for the neutral state to come to a 
 previous understanding with the guaranteeing powers. Also, by the same writer, 
 International Law I, 29, where he says that if the neutralized state extends its territory 
 without the consent of the guarantors, it raises the dangerous question whether the 
 guarantee continues to exist even for its original territory. J. Westlake International 
 Law I, 29. 
 
— 10 — 
 
 According to a second opinion, which is that of the minority, the 
 guarantee of the neutrahty of Belgium has been vitiated on account 
 of the acquisition by her of the Independent State of Congo, but a 
 specific declaration from the guaranteeing States may reestablish the 
 former condition.^^ 
 
 Another French author holds also that Belgium infringed her privi- 
 leged status guaranteed by the treaty of 1839 by the incorporation of 
 the Congo State, but this writer sees a palliation of this infringement 
 in the express or tacit consent of the guarantors for the acquisition 
 of the Congo State by Belgium. He, however, is of opinion that a 
 new declaration by the Powers who guaranteed the neutrality of 
 Belgium, might obviate complications in the future.^* 
 
 On the other hand the Belgian Government going to the other ex- 
 treme, asserts that the guarantee of the neutrality of Belgium extends 
 ipso facto to her African colony, and therefore the neutrality of the 
 former Independent State of Congo, which was merely recognized, 
 but not guaranteed, is merged, so to say, in the guarantee of the neu- 
 trality of Belgium, since, as they contend, the African colony is now 
 part of Belgium.^^ 
 
 This is no doubt a very bold view and lacks the essential founda- 
 tion for its support, namely a special treaty to that effect, and in the 
 absence of such a specific instrument, the guarantee embodied in the 
 treaty of 1839 cannot ipso facto extend to the African colony of Bel- 
 gium, the Powers having expressly guaranteed the territory of the 
 latter country. 
 
 Another apologist of Germany,^" referring to the treaty of 1839, 
 comes also to the same conclusion as Prof. Burgess, but in a different 
 way. This writer brushes aside the famous instrument of 1839 as 
 being null and void, for the simple reason, as he puts it, that Belgium 
 was (and not is) a sovereign State, and that as such she had the 
 "undoubted right to cease being neutral whenever she chose by abro- 
 gating the treaty of 1839," that "she had promised (in 1839) to five 
 Powers that she would remain perpetually neutral. These Powers in 
 their turn had promised ^o guarantee her neutrality." After laying 
 down this historically false premise, he draws the above conclusion ; 
 but this writer does not tell us when Belgium abrogated the treaty 
 of 1839. After making an unjuridical comparison between treaties 
 of peace and those of perpetual neutrality, he comes abruptly to the 
 conclusion that Germany had the right to set at naught the treaty 
 guaranteeing the neutrality and independence of Belgium, because, 
 
 "Paul P'anchille, in Revue Generale de Droit International Public II, 416 et seq. 
 
 '* F. Despagnet, in Essai sur les Protectorats, 286 et seq. Article by the same 
 writer on this subject in Revue Rleue, June 23, 1894. 
 
 ^' Declaration of Belgian Government in the Legislative Chambers, February, 1893. 
 See also Fanchille in Revue Generale de Droit International Public II, 416 et seq. 
 
 ^* Edmund von Mach, in Nevif York Times of November i, 1914. 
 
— • II 
 
 as he alleges, the latter cotinti-y violated it. This apologist of Ger- 
 many also holds that the treaty of 1839 is obsolete and quotes Mr. 
 Gladstone as his authority, who, according to his (Dr. Mach's) opin- 
 ion "very clearly stated that he did not consider the treaty of 1839 
 enforceable." Now as a matter of fact the famous British statesman, 
 as it will be hereafter seen, never gave such a construction to that 
 instrument. 
 
 After disposing of the treaty of 1839 in such a formal manner. Dr. 
 von Mach tells us that the neutrality of Belgium rests on the stipula- 
 tions of the second Hague Peace Conference. We also learn from 
 him that the first Hague Convention contained no rules forbidding 
 belligerents from entering neutral territory, and that "in the second 
 Conference it was thought desirable to formulate such rules," be- 
 cause, according to this internationalist, "it was felt that in war 
 belligerents are at liberty to do what is not expressly forbidden." We 
 are further told that Germany and Belgium have ratified the whole 
 Convention, and one would naturally expect him to draw the con- 
 clusion that at least these two powers are bound to respect the rules 
 on neutrality laid down in that instrument, namely, that "the terri- 
 tory of neutral powers is inviolable" and that "belligerents are for- 
 bidden to move troops or convoys * * * across the territory of a 
 neutral power." Instead of arriving at this conclusion he dilates 
 upon the refusal of Great Britain to ratify that Convention which 
 naturally cannot relieve the responsibility of Germany towards Bel- 
 gium. This apologist of Germany entirely loses sight of the fact that 
 it is not the Hague or other Conventions that created international 
 law, and that the rules governing neutrality, as many others of a 
 similar character, have existed for centuries and have been in use 
 among civilized nations and that belligerents in the absence of writ- 
 ten compacts are guided by these rules and regulations. 
 
 Reverting now to the contention that Belgium was at liberty to 
 renounce her privilege of being permanently neutral, the historical 
 facts prove the contrary. Any one acquainted with the diplomatic 
 history of the neutralization of Belgium must have noticed that that 
 situation was imposed upon that country, not so much in the interest 
 of the latter, as in that of the guaranteeing States. The fear of the 
 absorption of Belgium by France was at that time the principal 
 motive of the conclusion of the treaty of 1839. As a distinguished 
 Belgian jurist well observes, in the permanent neutralization of States 
 which took place in the course of history, the interests of the guar- 
 anteeing States was to such a degree preponderant, that it was the 
 only thing that was considered." 
 
 " E. Nys, he Droit International I, 4^9. Also Rivier, Principes du Droit des Gens I, 
 116, and Merignac op. cit. II, 59. 
 
— ^12 — 
 
 Now coming to the treaty of 1870, which is adduced by the friends 
 of Germany as evidence as to the alleged obsolescence of the Conven- 
 tion of 1839, one can only refer them to a careful reading of that 
 treaty, which speaks for itself. 
 
 In fact not only the context of that treaty or treaties of that date 
 concluded for the maintenance of Belgian neutrality, but also the 
 diplomatic history of that time show clearly that the contracting par- 
 ties to those instruments far from considering the treaty of 1839 as 
 obsolete, have on the contrary distinctly affirmed that the former 
 were concluded for the maintenance of the latter. 
 
 Two separate and identical treaties were concluded in 1870, the one 
 between Great Britain and France and the other between Great Brit- 
 ain and Prussia. The preamble of both these instruments runs as 
 follows : 
 
 "Her Majesty the Queen of the United Kingdom of Great Britain 
 and Ireland, and His Majesty the King of Prussia (or the Emperor 
 of the French, as the case might be) being desirous at the present 
 time of recording in a solemn act their fixed determination to main- 
 tain the Independence and Neutrality of Belgium, as provided in 
 Article VII of the Treaty signed at London on the 19th of April, 
 1839, between Belgium and the Netherlands, which Article was de- 
 clared by the Quintuple Treaty of 1839 to be considered as having 
 the same force and value as if textually inserted in the said Quintuple 
 Treaty, their said Majesties have determined to conclude between 
 themselves a separate Treaty which without impairing and invalidat- 
 ing the conditions of the said Quintuple Treaty shall be subsidiary 
 and accessory."^^ 
 
 There can certainly not be plainer language than this. The con- 
 tracting parties concluded the Treaties of 1870 because they desired, 
 as they asserted, to record in a solemn act their determination to 
 maintain the neutrality of Belgium as provided in the treaty of 1839 
 "without impairing or invalidating that instrument, which shall be 
 subsidiary and accessory to it." 
 
 But Article III is not less clear. It is as follows : 
 
 "This Treaty (of 1870) shall be binding on the High Contracting 
 Parties during the continuance of the present war between the North 
 
 Sir Edward Grey, the British Secretary of State for Foreign Affairs, speaking in the 
 House of Commons on August 3, 1914, on the subject of Belgian neutrality, and refer- 
 ring to the treaty of 1839, said: "It is one of those treaties which are founded, not only 
 on consideration for Belgium, which benefits under the treaty, but in the interests of 
 those who guaranteed the neutrality of Belgium." London Times, August 4, 191 4. 
 
 See also Protocol of February 19, 1831, where it is stated that the reasons for the 
 neutralization of Belgium were the establishment of a just equilibrium in Europe and the 
 maintenance of general peace. Sir R. Phillimore, Commentaries on International I<aw, I, 
 495 ed. 1871. 
 
 " Hertslet, Map of Europe by Treaty III, 1886. 
 
— 13 — 
 
 German Confederation and France, and for 12 months after the rati- 
 fication of any Treaty of Peace concluded between those Parties ; 
 and on the expiration of that time the Independence and NeutraHty 
 of Belgium will, so far as the High Contracting Parties are respec- 
 tively concerned, continue to rest as heretofore on Article I of the 
 Quintuple Treaty of the 19th of April 1839." 
 
 From the above extracts it is evident that the contracting parties 
 to these instruments, namely the treaties of 1870, never lost sight of 
 the validity of the treaty of 1839. Therefore the argument as to the 
 obsolescence of the latter instrument falls to the ground. 
 
 Let us now go beyond the treaty of 1870 and see whether there 
 really existed serious reasons which prompted the British Govern- 
 ment to secure the conclusion of additional treaties for the preserva- 
 tion of the neutrality of Belgium during the Franco-German war of 
 1870. 
 
 Looking into the diplomatic history and parliamentary debates of 
 Great Britain of that time one can preceive two things : first, the ex- 
 treme solicitude and concern of the British Government for Belgium ; 
 second, the indifference and, one may say, the apathy towards the 
 Grand Duchy of Luxemburg, although the neutrality of that country 
 was also guaranteed by a solemn instrument, namely the treaty of 
 1867, to which Great Britain was also a party. While the violation of 
 the neutrality of Belgium was always considered by England as a 
 casus belli and gave rise to the participation of the latter country in 
 the present war, the similar act of Germany against the Grand 
 Duchy of Luxemburg, whose territory was also declared perpetually 
 neutral by a solemn treaty, hardly attracted any attention, nor can it 
 be said that the Government of the Grand Duchy acquiesced in that 
 act willingly ; on the contrary, they strongly protested against the 
 violation of their neutrality by Germany. 
 
 An historical review of this question will explain the reasons of 
 the discrimination, so to say, made by Great Britain between Belgium 
 and the Grand Duchy of Luxemburg, and will also give us a clue 
 to the causes which led to the conclusion of the treaties of 1870, guar- 
 anteeing for the second time the neutrality of Belgium during the 
 Franco-German war of that time and a year after the conclusion of 
 peace, as above explained. But in order to understand that we must 
 look a little into the history of the Grand (but in fact the small) 
 Duchy of Luxemburg. 
 
 By the Congress of Vienna of 181 5 the territory or province of 
 Luxemburg was created into a state under the name of Grand Duchy 
 of Luxemburg and was placed under the Sovereignty of the King of 
 the Netherlands (Holland), with the title of Grand Duke of Luxem- 
 
— 14 — 
 
 burg.^* When in 183.1 Belgium was constituted into a separate state, 
 part of the territory of Luxemburg was given to Belgium now form- 
 ing the Province of Luxemburg. 
 
 On the dissolution of the German Confederation in 1866, Napoleon 
 III tried to incorporate the Grand Duchy of Luxemburg to France 
 by purchasing it from the Sovereign of the Duchy, namely, the King 
 of the Netherlands. This attempt was then frustrated by the King 
 of Prussia who, however, claimed in his turn — notwithstanding the 
 severance of the connection of the Grand Duchy from the German 
 Confederation — ^^that he had still the right to maintain a Prussian 
 garrison in the fortress of the city of Luxemburg, to which France 
 strenuously objected. The matter came to an impasse and France 
 and Prussia were nearly on the verge of war when through the 
 mediation of England the contending parties reached a compromise. 
 France withdrew her plan of purchase and Prussia undertook to 
 withdraw her garrison, On condition that the Grand Duchy should be 
 declared perpetually neutral under the collective guarantee of several 
 Powers, which proposition was ultimately accepted and embodied in 
 a treaty. What is important to note is that it was at the request of 
 Prussia and not of France that the Grand Duchy of Luxemburg was 
 neuralized and placed under the collective guarantee of the Powers ; 
 and it is Germany now, and not France, that violated the neutrality 
 of that country.^** 
 
 in consequence of the above arrangement, a treaty was concluded 
 at London on May 11, 1867, guaranteeing the perpetual neutrality of 
 the Grand Duchy of Luxemburg, and Article II of that instrument 
 declares that: 
 
 "The Grand Duchy of Luxemburg within the limits determined by 
 the Act annexed to the treaties of 19th April 1839, under the guaran- 
 tee of the Courts of Great Britain, Austria, France, Prussia, and 
 Russia shall henceforth form a perpetually Neutral State. It shall be 
 bound to observe the same neutrality towards all other States. The 
 High Contracting Parties engage to respect the principle of Neutral- 
 ity stipulated by the present Article. 
 
 ^'That principle is and remains placed under the sanction of the 
 collective Guarantee of the Powers signing Parties to the present 
 treaty, with the exception of Belgium, which is itself a Neutral 
 State."2i 
 
 The engagement taken by the British Government by the treaty of 
 
 " Eyschen, Das Staatsrecht des Grossherzogtums, 6 et seq. 
 
 ^ E. Servais, Le Grand Duche de Luxemburg et le Traite de Londres, S3-ii8, and 
 
 I4S- 
 
 -* Herstlet, Map of Europe by Treaty III, 1803. 
 
- 15 - 
 
 1867 had during the negotiations for its conclusion and subsequently 
 stirred public opinion in England because the British public could not 
 see why their country should assume such a heavy responsibility for 
 a State in which the British interests were not in any way involved. 
 
 The Government, which was then presided over by the Earl of 
 Derby, explained through its Ministers, in both Houses of Parlia- 
 ment, the limitations of the responsibility undertaken by Great Brit- 
 ain by the Treaty of 1867 in regard to the guarantee of the neutrality 
 of Luxemburg, which may be interesting to summarize as having 
 both a retrospective and actual interest. Thus Lord Stanley, then 
 Secretary of State for Foreign Affairs, speaking on the subject in 
 the House of Commons on June 14, 1867, said, among other things, 
 that he had hesitated for two or three days before giving his assent 
 to the arrangement. "In giving it," he said, he "acted under a feel- 
 ing of doubt and anxiety such as" he "never felt upon other public 
 questions," and pointed out that the alternative would have been war 
 between France and Prussia. The Secretary of State concluded his 
 speech with the following significant words, which have a bearing 
 upon the present question : "Even if England had been able to keep 
 out of it [of the war] which of course we should have desired, it 
 might have been difficult, especially if Belgium had been attacked."^- 
 
 Two days after the signature of this treaty, namely, on May 13, 
 1867, the Earl of Derby, answering a question in the House of Lords 
 as to whether Great Britain could be called upon to enforce the treaty 
 by force of arms in case the neutrality of the Grand Duchy of Lux- 
 emburg was violated, said : "The guarantee [of Luxemburg] is not a 
 joint and separate guarantee, but is a collective guarantee, and does 
 not impose upon this country any special duty of enforcing its pro- 
 visions. It is a collective guarantee of all the Powers of Europe."^' 
 
 On June 14, 1867 Mr. Labouchere (the well known late editor of 
 Truth) brought up the same question before the House of Com- 
 mons again, by asking the Secretary of State for Foreign Affairs for 
 information as to the extent of the obligations of Great Britain in 
 regard to the treaty of 1867. Lord Stanley, after referring to the 
 Treaty of 1839 guaranteeing the possession of Luxemburg to the 
 King of Holland, said : "The guarantee now given is collective only. 
 That is an important distinction. It means this, that in the event of a 
 violation of neutrality all the powers who have signed the treaty may 
 be called upon for their collective action. No one of these powers is 
 liable to be called upon to act single or separately. It is a case, so to 
 speak, of Hmited liability. We are bound in honor, you cannot place 
 
 ^ Hansard, third series, 187, 1910. 
 ^ Hansard, ibid., 187, 379. 
 
— i6 — 
 
 a legal cdnstruction upon it, to see in concert with others that these 
 arrangements are maintained." * * * "If they decline to join us, we 
 are not bound single handed to make up the deficiencies of the rest. 
 Such a guaranty has obviously rather the character of a moral sanc- 
 tion to the arrangements which it defends, than that of a contingent 
 liability to make war, but it would not necessarily impose the obliga- 
 tion."-* 
 
 The Foreign Secretary, in order to prove that the guarantee of the 
 neutrality of a State is not always a legal obligation but a discretion- 
 ary right for the guarantor to use its forces for the enforcement of 
 the neutrality by others, brought the example of the guarantee of the 
 neutrality of Switzerland and of the extinct republic of Cracow in 
 Poland, and said: "If all Europe combined against the republic 
 (Switzerland) England would hardly be bound to go to war with all 
 the world for its protection." Then referring to the violation of the 
 pledge which had been given by certain powers to the Polish Repub- 
 lic, "we were parties to the arrangements which were made about 
 Poland ; they were broken, but we did not go to war. I only name 
 those cases, as showing that it does not necessarily and inevitably 
 follow that you are bound to maintain the guarantee under all cir- 
 cumstances by force of arms."-^ 
 
 The question came up again on the 20th of June in the House of 
 Lords and the speeches made during that debate in the Upper House 
 are not less interesting, particularly the utterances made on the sub- 
 ject by the Prime Minister and Lord Clarendon, whose opinions are 
 now endorsed by the present British cabinet.-'^ 
 
 Thus the Earl of Derby, answering a criticism of the construction 
 given to the treaty (of 1867) by the Cabinet, said : "I do not entirely 
 agree with the noble Earl (Earl Russell) as to the extent of our 
 responsibility. * * * If it had been a continuance of the guarantee 
 first given, I should think it a very serious matter, because the guar- 
 antee of the possession of Luxemburg to the King of Holland was 
 a joint and several guarantee similar to that which was given with 
 regard to the independence and neutrality of Belgium ; it was bind- 
 ing individually and separately upon each of the powers. That was 
 the nature of guarantee which was given with regard to Belgium and 
 with regard to the possession of Luxemburg by the Duke-King.-^ 
 Now a guarantee of neutrality is very dififerent from a guarantee of 
 possession. If France and Prussia were to^ have a quarrel between 
 
 -■• Hansard, ibid., 187, 1910-1923. 
 -'Hansard, ibid., 187, 1923. 
 
 ^" Despatch of Sir l^dvvard Grey to Sir F. Bertie, British Ambassador at Paris, in 
 White Paper no. 148. 
 
 "' The King of Holland, who was also Grand Duke of Luxemburg. 
 
— 17 — 
 
 themselves, and either were to violate the neutrality of Luxemburg 
 by passing their troops through the Duchy for the purpose of making 
 war on the other, we might, if the guaranty had been individual as 
 well as joint, have been under the necessity of preventing that viola- 
 tion, and the same obligation would have rested upon each guaran- 
 tor; but as it is we are not exposed to so serious a contingency be- 
 cause the guarantee is only collective, that is to say, it is binding only 
 upon all the Powers in their collective capacity; they all agree to 
 maintain the neutrality of Luxemburg, but not one of the Powers is 
 bound to fulfil the obligation alone. That is a most important dif- 
 ference, because the only two Powers by which the neutrality of 
 Luxemburg is hkely to be infringed are two of the parties to the 
 collective guarantee ; and therefore if either of them violates the neu- 
 trality, the obligation on all the others would not accrue."-^ 
 
 Lord Clarendon, who was above referred to, in endorsing the 
 standpoint of the Cabinet, said : "With regard to the guarantee, I 
 will go somewhat further than the noble Earl at the head of the 
 Government, and say that if we had undertaken the same guarantee 
 in the case of Luxemburg as we did in the case of Belgium, we 
 should, in my opinion, have incurred an additional and very serious 
 responsibility. I look upon our guaranty in the case of Belgium as 
 an individual guarantee, and have always so regarded it ; but this is a 
 collective guarantee. No one of the Powers, therefore, can be called 
 upon to take single action, even in the improbable case of any diffi- 
 culty arising. I cannot help regarding this guarantee as a moral 
 guarantee, a point of honor, as an arrangement which cannot be vio- 
 lated without dishonor by any of the signing Powers ; and I believe 
 an agreement of that nature may be more binding than the precise 
 terms in which a treaty is couched, for it is a characteristic of these 
 times that when formal treaties are found inconvenient, they are dis- 
 regarded."-^ 
 
 The Earl of Granville, who subsequently (in 1870) became the 
 Secretary of State for Foreign Affairs of the Cabinet presided over 
 by Mr. Gladstone, although he approved the treaty of 1867, dis- 
 approved the construction given to it by the Government. "If Her 
 Majesty's Government," he said, "instead of increasing our liabilities, 
 have actually diminished them, it appears to me that there has been 
 the most complete mystification of some of the most distinguished 
 diplomatists of Europe ever heard of, * * * and further, "in spite of 
 these fanciful interpretations as to how far we are bound by treaties, 
 it is possible that we may have rendered ourselves liable at some 
 
 °' Hansard, ibid. 188, 146 et seq. 
 -''Hansard, ibid. 188, 152-153. 
 
— i8 — 
 
 future time to practical inconvenience, or the risk of being considered 
 unfaithful to our agreements. "^'^ 
 
 The obligation undertaken by the British Government by the guar- 
 antee of the neutrality of Luxemburg was considered to be so im- 
 portant that it w^as again discussed in the House of Lords on July 4, 
 when the Earl of Derby spoke again on behalf of the Government in 
 answer to a criticism made on the treaty by Lord HoughtDn. 
 
 "Whatever the interpretation," said the Prime Minister, "which I 
 may put on particular words of the treaty, or whatever the interpre- 
 tation which Her Majesty's Government may put on it, such inter- 
 pretation cannot affect the international law by which the terms of all 
 treaties are construed, I am not much skilled in the ways of diplo- 
 matists, but I believe that if there be one thing more clear than 
 another it is the distinction between a collective and a separate and 
 several guarantee. A several guarantee binds each of the parties to 
 do its utmost individually to enforce the observance of the guarantee. 
 A collective guarantee is binding on all the parties collectively ; but 
 if any difference of opinion should arise no one of them can be called 
 upon to take upon itself the task of vindication by force of arms. 
 The guarantee is collective, and depends upon the union of all the 
 parties signing it ; and no one of those parties is bound to take upon 
 itself the duty of enforcing the fulfilment of the guarantee. As far 
 as the honor of England is concerned, she will be bound to respect 
 the neutrality of Luxemburg ; * * * but she is not bound to take 
 upon herself the Quixotic duty, in the case of a violation of the neu- 
 trality of Luxemburg by one of the other Powers, of interfering to 
 prevent its violation because we have only undertaken to guarantee it 
 in common with all the other great Powers of Europe. If the neu- 
 trality should be violated by any of them, then I say it is not a case 
 of obhgation, but a case of discretion, with each of the other signa- 
 tory Powers as to how far they should singly or collectively take 
 upon themselves to vindicate the neutrality guaranteed. "^^ 
 
 The Earl of Derby in concluding his speech made again the dis- 
 tinction between the collective or common guarantee of the neutrality 
 of Luxemburg and the single or separate of that of Belgium, and said 
 that in the latter case the obligation was not discretionary as in the 
 former. He illustrated his point of view by reminding the House of 
 the two separate treaties concluded in 1856 concerning the guarantee 
 of the integrity and independence of the Ottoman Empire, by which 
 instruments some of the contracting parties undertook only to respect 
 
 ?•» Hansard, ibid. i88, 154- 
 
 =<i Hansard, ibid. 1S8, 967 et seq. 
 
— 19 — 
 
 that eng-agement, and others to enforce it, in case of the violation of 
 its stipulations. 
 
 The distinction between a collective or common and a separate or 
 single guarantee, and the difference as to the effects resulting from 
 each of them in international instruments is criticised by the majority 
 of the writers of the law of nations, but a respectable minority en- 
 dorses, in a general way, the doctrine as was expounded by the 
 British Ministers in 1867. 
 
 The great majority of the writers on the law of nations, in dis- 
 cussing the question of conventional guarantee, divide it into a single 
 guarantee on one side, and collective on the other. 
 
 A guarantee is called single when it is given either by one or by 
 various States without creating a legal connection between them in 
 regard to the guarantee that each of them gave separately ; in such a 
 case, there is only an additional or additional guarantees. 
 
 It is called, on the contrary, collective or joint guarantee when the 
 guaranteeing States undertake mutually to insure the same privileges 
 to a State. In the latter case, two legal connections are created; one 
 between the guarantors, each being obliged towards the others to 
 carry out faithfully the obligation undertaken towards the guaran- 
 teed State; the other, between the guarantors and the guaranteed 
 State, each being bound to fulfill its pledge, either alone or jointly 
 with the other guarantors. ^^ 
 
 According to a distinguished Swiss jurist and late Professor of 
 International Law at the University of Brussels, the guarantee is col- 
 lective, joint and mutual, when it is given by two or more States, by 
 one and the same treaty and for one and the same condition of things. 
 This writer holds that is immaterial whether any of the above 
 names — collective, joint, or mutual — are expressly used in the in- 
 strument of guarantee and that their absence cannot alter the char- 
 acter of the joint obligation. In such a guarantee each guarantor is 
 bound to carry out an indivisible obligation, but has also the right to 
 come to a previous understanding with the co-guarantors in order to 
 take a common action. If after consultation the guarantors cannot 
 agree, each guarantor is nevertheless bound to execution of the obH- 
 gation. 
 
 Now if the guarantee is collective and separate then the inde- 
 pendent action upon the part of each guarantor is presumed, because 
 in this case it is given expressly. 
 
 Then referring to the necessity of unanimity of action in a collec- 
 tive guarantee, he asserts that it is not necessary that there should be 
 
 '- Henry Bonfils, Manuel de Droit International Public, Quatrieme ediiion par Paul 
 Fanchille, 492-493. Despagnet, Cours de Droit International Public, 503 (ed. 1899.) 
 Milovanovitch, Des Traites de Garantie, 5 et seq. 
 
— 20 — 
 
 unanimity, because if that was the case the collective guarantee would 
 have been weaker than the simple guarantee, and often illusory. If 
 a guarantor would allege that the intention of the contracting parties 
 was to exclude a separate action, it is for such a guarantor to furnish 
 the proof in order to sustain his allegation, because to presume such 
 an intention would have been contrary to the original object of the 
 guarantee, which is to insure and strengthen the guaranteed right. 
 
 This construction of the word collective is contrary to the views 
 of the British Cabinet in connection with the treaty of 1867 guaran- 
 teeing the neutrality of the Grand Duchy of Luxemburg. This 
 author calls those views erroneous.^^ 
 
 One of the most eminent contemporary Belgian jurists in affirming 
 the division of guarantees into single on one hand, and joint and col- 
 lective on the other, adds that, although the text of the treaty of 1839, 
 guaranteeing the neutrality of Belgium, does not contain the words 
 joint and collective, that guarantee is nevertheless a joint one, be- 
 cause it was not given separately by the five Powers, but jointly. He 
 also criticises the British point of view in regard to the word "col- 
 lective," and calls it a "strange view."^* 
 
 A famous Swiss-German author is also of opinion that in a col- 
 lective guarantee, each guarantor — after trying to come to a previous 
 understanding with the co-guarantors and failing to agree on a com- 
 mon action — is bound to carry out alone the treaty stipulations be- 
 cause, he says, it is contrary to good faith to give only a moral value 
 (this being an allusion to the British Minister's expression in 1867) 
 to the collective guarantee, under the pretext that it is difficult for the 
 guarantors to agree unanimously.^^ 
 
 Another German specialist on International Law, after making a 
 distinction between a collective and collective and separate guarantee, 
 holds that the latter is more strictly obligatory, in this sense, that each 
 of the guarantors is bound to intervene, regardless of the inaction of 
 the other co-guarantors. But this writer does not thereby conclude 
 that the mere collective guarantee is not obligatory. On the con- 
 trary, he asserts that in a collective guarantee all the guarantors are 
 "correi debendi." He also criticizes Lord Stanley's expression of 
 "moral guarantee," and calls it a sophistry. Treaties are not con- 
 cluded, he adds, in order to create engagements of honor."'' 
 
 ^' A. Rivier, Principes du Droit des Gens II 104-105. Also F. Despagnet ibid, 144. 
 
 ^•* For particulars, see E. Nys, Etudes de Droit International et Droit Politic, 158- 
 163: E. Nys, Revue de Droit International et de Legislation Comparee III, 40 et seq. ; 
 E. Nys, Ee Droit International III, 40-41. 
 
 '^ Bluntschli, Ee Droit International Codifie traduit par Lardy, article 440 and note. 
 
 ^^ F. H. Geffcken in Heffter's Droit International de I'Europe, traduit par J. Bergson, 
 219 ncle 8; also Geffcken in Holtzendorf's Handbuch des Volkerrechts III, 109. 
 
— 21 — 
 
 Various other writers approve the above views as to the guarantee 
 undertaken by the treaty of 1867 i" regard to the neutraUty of Lux- 
 emburg and consider that the guarantee given by that instrument is 
 not a "moral obHgation," but an obligation and that unanimity is not 
 essential for putting it into execution.^^ 
 
 A distinguished Russian author disapproves also the above views 
 of the British Ministers, and, although he holds that in a collective 
 guarantee each guarantor is bound to carry out his engagement, 
 thinks that a guaranteeing State is not bound to sacrifice her own 
 existence to save another power.^^ 
 
 The British writers on International Law do not seem to be profuse 
 on this controverted point. One of them, referring to it incidentally 
 and commenting on the ambiguity of the construction given to col- 
 lective guarantee by the Derby Cabinet in 1867, says : "It would be 
 well to abstain from couching agreements in terms which may 
 seriously mislead some of the parties to them, and to avoid making 
 agreements at all which some of the contracting parties may intend 
 from the beginning to be illusory.^'' 
 
 While the writers on International Law generally disapprove the 
 construction given by the British Ministers to the stipulations of the 
 treaty of 1867, in regard to Luxemburg, a few of them, without 
 approving the words "moral obligation," countenance in substance 
 the stand taken in 1867 ^Y ^^e Derby Cabinet. 
 
 One of the most learned French writers on International Law and 
 Diplomacy, in discussing the question of treaty guarantees, says: 
 "There are two kinds of guarantees, one is the simple guarantee, 
 namely, when two or more Powers guarantee the perpetual neutrality 
 of a State, without an express stipulation that such neutrality is placed 
 under their common guarantee; such neutrality is then under the 
 guarantee of each contracting party and also under that of all of 
 them. In such a case the neutralized State or the co-guarantors have 
 the right to invoke the execution of the stipulation of guarantee 
 against each guarantor, if such neutrality is violated by any Power. 
 This kind of guarantee is obHgatory upon all acting in common or 
 separately. 
 
 "The other is called collective or common guarantee, when it is 
 
 3' a. Descamps, Neutralite de 1,3. Belgique, 541-S42. This writer is an Ex-Senator 
 of the Belgian Senate and also Professor at the University of Louvain. Also C. Piccioni, 
 Essai sur la Neutralite Perpetuelle, 13 et seq. 
 
 38 F. de Martens, Traite de Droit International, traduit par Alfred Leon, I 554, 553. 
 
 "' Hall, A Treatise on International Law (ed. 1884), 316. 
 
 «• F. Pradier-Fodere, Traite de Droit International Public, II, nos. 1010-1012. Two 
 other eminent French writers approve this view and also the division as above given by 
 the last author, Funck Brentano and Albert Sorel, Precis du Droit des Gens, 354-357. 
 See also Calvo, Le Droit International Theorique et Pratique, IV, 499. 
 
22 — • 
 
 expressly stipulated as being such, like that of the treaty of 1867 
 guaranteeing the neutrality of Luxemburg. In the latter case the 
 guarantors may be asked to intervene in case the guaranteed neutral- 
 ity is violated, and they may act either in common or separately." In 
 case of disagreement, one of them only can act irrespective of the 
 other, but this writer holds that in the latter case a guarantor has the 
 discretion and not the obligation to intervene. He therefore approves 
 the viewpoint of the British Ministers in 1867. "What was provided 
 in the treaty" (guaranteeing the neutrality of Luxemberg), he says, 
 "is a collective action." "Does it not seem," he asks, "that to put all 
 the weight of the guarantee on one Power only would be beyond the 
 limits and the provisions of the Treaty?" He, however, admits that 
 as long as there exist a sufficient number of Powers agreeing to inter- 
 vene, the opposition of one cannot prevent the others from acting.**^ 
 
 One of the most distinguished citizens of the Grand Duchy of 
 Luxemburg, who represented his country at the Conference of Lon- 
 don of 1867, commenting on the treaty guaranteeing the neutrality of 
 Luxemburg, throws a great deal of light on the diplomatic history of 
 this subject. 
 
 In referring to the negotiations previous to the conclusion of that 
 treaty, he tells us that these had been initiated by Austria, that Russia 
 proposed the Conference, taking as a basis the neutralization of the 
 Grand Duchy, but that it was Prussia who requested the insertion of 
 the stipulation of guarantee of the Powers ; further that both Prussia 
 and Austria considered at the time that the neutralization should have 
 been similar to that of Belgium. This writer therefore considers the 
 British view as being untenable and contrary to the spirit of the 
 negotiations which culminated in the conclusion of the treaty of 1867. 
 In support of his view he quotes, as do other writers, an extract from 
 Bismarck's speech of September 24, 1867, made in the Diet of the 
 then German Confederation, when the future Iron Chancellor of 
 Germany, referring to the withdrawal of the Prussian garrison from 
 Luxemburg, said : "We have obtained a compensation in the neu- 
 tralization of the territory of Luxemburg by the European guarantee, 
 in the maintenance of which I have faith notwithstanding all cavil." 
 (That being an allusion to the construction given to the treaty of 
 1867 by the Derby Cabinet.)" 
 
 There is evidently a misconception as to the meaning of the unfor- 
 
 ■»* E. Servais, Le Grand Duche de lyuxemburg et le Traite de Londres, 56 et se';. 
 
 See also the work of another eminent citizen and Premier of the Grand Duchy in 
 which he confirms the facts mentioned by the previous writer and disapproves of the 
 views of the Derby Cabinet. Eyschen, Das Staatsrecht des Grossherzogtums, 19 et se ;. 
 
 See protest of Council of State of Luxemburg against the British Cabinet's views in 
 Funck Brentano and Sorel, op. cit. appendix, 506. 
 
— 23 — 
 
 tunate expression used by the British Ministers in explaining to Par- 
 Hament the liabiHty of England resulting from the treaty of 1867. 
 What Lord Derby and his "noble relative" (as Parliamentary usages 
 required him to call his son, Lord Stanley) meant by "moral obliga- 
 tion" was that Great Britain was not bound, single handed, to protect 
 Luxemburg, if her neutrality was violated. What was uppermost in 
 the mind of the then Secretary of State, before assenting to the 
 signature of that instrument (which he did, as he said, reluctantly), 
 was a collective action of the Powers. What is important to note is, 
 that notwithstanding the criticism at that time of the Liberal Party 
 as to the expression "moral obligation," the Liberal Party of today, 
 through its Secretary of State for Foreign Affairs, endorsed the 
 point of view of the Derby Cabinet. In fact, we see that Sir Edward 
 Grey, writing to the British ambassador at Paris on August 2, 1914, 
 says: M. Cambon [the French ambassador at Berlin] asked me 
 about the violation of Luxemburg, I told him the doctrine on that 
 point laid down by Lord Derby and Lord Clarendon in 1867.*^ 
 
 It should, however, be observed, that in assuming such an obliga- 
 tion as the guarantee of the neutrality of a State it is imperative for 
 the guaranteeing Power to express from the beginning its point of 
 view on its eventual liability, and not to give hopes to small and weak 
 States whose whole existence may be at stake, so that they may at the 
 outset regulate their policy in order to safeguard their existence. 
 
 As an English writer observes, Great Britain has signed so many of 
 these treaties — some, it is true, in conjunction with other Powers — 
 that "some of the engagements are absolute, others conditional, some 
 are joint, others several, and as if to complicate the position as much 
 as possible, the terms of many treaties are couched in language so 
 vague and so indefinite, that it is almost impossible to say what Eng- 
 land — or some other Power — is bound to do, what she can call on the 
 other signatories to perform."*^ 
 
 This explains the theoretical and doctrinal side of the obligation 
 incumbent upon Great Britain and the other Contracting Parties to 
 the Treaty of 1867 who guaranteed the neutrality of the Grand 
 Duchy of Luxemburg, which was so wantonly violated by Germany 
 in the present war, but attracted very little attention in belligerent 
 and neutral countries. As a matter of fact the German Government 
 did not seriously attempt to justify its action in the case of Luxem- 
 burg as in that of Belgium. 
 
 ^^ White Paper no. 148. 
 
 *^ J. 15. C. Munro, an article entitled England's Treaties of Guarantee, in I<aw 
 Magazine and Review (4th series) May, 1881. 
 
THE INTERNATIONAL STATUS OF THE GRAND DUCHY 
 OF LUXEMBURG AND THE KINGDOM OF 
 BELGIUM IN RELATION TO THE PRESENT 
 EUROPEAN WAR. 
 
 XL 
 
 THE case of Belgium presents an entirely different aspect both 
 from the legal and the political point of view. While the 
 guarantee of the neutrality of Luxemburg interests — or in- 
 terested at the time of the signature of the Treaty of 1867 — France 
 and Prussia only, and the other contracting parties (and particular- 
 ly Great Britain) acceded to "it, to use the words of Lord Stanley, 
 "reluctantly," that of Belgium had and has an entirely different 
 character so far as England is concerned. It affects her vital inter- 
 ests, namely, her own security. Hence the difference in the wording 
 of the instrument guaranteeing the independence and neutrality of 
 Belgium, and the alarm felt in Great Britain whenever an attempt 
 was made for the violation of the stipulations of the latter treaty. 
 
 The interest of the British nation in the sacro-sanctum, one might 
 say, of the inviolability of the Belgian territory, — which has now 
 been shown in such a palpable way, came very near the same point, 
 as it is known, during the Franco-German war of 1870. The views 
 then expressed by the public men of Great Britain and the stand then 
 taken by the British Government are very instructive as having a 
 direct connection with the present controversy — or rather the eft'orts 
 of some friends of Germany to prove the obsolescence of the Treaty 
 of 1839. 
 
 The reason for the conclusion of the treaty or treaties of 1870 
 above referred to, was given in both Houses of Parliament at that 
 time, and the attitude of the British Government in regard to Bel- 
 gium was clearly shown during the Parliamentary debates. But, in 
 order to understand better the question, it might be necessary to 
 refer to some previous incidents which influenced the minds of the 
 British Ministers to resort to the conclusion of an additional treaty 
 guaranteeing again the neutrality of Belgium. 
 
 In the course of the year 1870 — namely, on July 25, 1870 — the 
 Times divulged the secret negotiations then going on between France 
 and Prussia for the incorporation of Belgium to the French Empire. 
 
— 26 — 
 
 It seems that the King of Prussia had already acquiesced in gratify- 
 ing the desire of Napoleon III. This intended infringement of the 
 public law of Europe had provoked, as was natural, the anger of 
 the English people and at the same time aroused the alarm of the 
 British Government, the absorption of Belgium by either of the two 
 Powers being considered as a menace to the security of Great Brit- 
 ain. 
 
 Therefore on the declaration of the war in 1870 this intrigue of 
 the two belligerents was uppermost in the minds of the British Min- 
 isters, who, fearing that Belgium might (by the treaty of peace to be 
 concluded after the termination of the hostilities), be incorporated 
 to either France or Germany, proposed to both belligerents the con- 
 clusion of an additional treaty for the maintenance of the independ- 
 ence and neutrality of that country, without impairing the validity 
 of that of 1839.** The proposal of the British Government received 
 the approval of both Prussia and France and resulted in the com- 
 pacts of 1870. 
 
 The debates in both Houses of Parliament in regard to these 
 treaties are not only interesting, but throw a great deal of light as 
 to British policy concerning the Belgian State. 
 
 Thus, Lord Granville, in explaining in the House of Lords, as a 
 spokesman of the Government, on August 8, 1870, the reasons which 
 prompted the cabinet to enter into a new treaty or treaties for the 
 guarantee of the neutrality of Belgium, said: "We might have 
 explained to the country and to foreign ■ nations that we did not 
 think this country was bound either morally or internationally or 
 that its interests were concerned in the maintenance of the neutrality 
 of Belgium. Though this course might have had some conveniences, 
 though it might have been easy to adhere to it, though it might have 
 saved us from some immediate danger, it is a course which Her 
 Majesty's Government thought it impossible to adopt in the name 
 of the country, with due regard to the country's honor and to the 
 country's interests. Another course would have been that, main- 
 taining our obligations such as they are described in the Treaty of 
 1839, we might have simply made a declaration of the determina- 
 tion of this country to resist any interference with the neutrality of 
 Belgium by force of arms. Now in the first place, such a declara- 
 tion would have been a direct menace to the Powers who are now 
 
 ** On July 28, 1870, Prince Bismarck, then Count Bismarck, in trying to justify the 
 attitude of Prussia on the secrecy of the negotiations for the incorporation of Belgium 
 to France, said in his usual blunt way that he "kept the secret and treated the proposi- 
 tion in a dilatory manner" and that "it was no business of his to tell French secrets." 
 John Morley, I,ife of Wm. F. Gladstone, vol. II, p. 342. 
 
• — 27 — 
 
 engaged in hostilities; in the second place it would have given an 
 appearance of isolation to our policy; and in the third place I do 
 not believe it was a course best calculated to prevent that particular 
 event which we wish to avoid." 
 
 Lord Granville said that they had received the assurance from 
 both belligerents that they would respect the treaty of 1839 but "we 
 added," he continued, "that we thought there could not be a doubt 
 of the duty of both those countries (France and Prussia) to main- 
 tain the obligations of the treaty (of 1839) which they had sever- 
 ally entered into in common with ourselves and with other countries 
 but we had observed in the declaration of both that the promise was 
 conditional on the other belligerent not violating it, and we could 
 not help gathering from that, that, in the opinion of each, such an 
 assurance was not of a complete character. We therefore proposed 
 that if they wished to give a more patent proof to the world of their 
 intention, or wished for a clearer assurance from us that we meant 
 to maintain the independence of Belgium, we were ready either to 
 enter into a treaty or in some solemn instrument to record our com- 
 mon determination." 
 
 Then, answering a criticism that the conclusion of the treaty of 
 1870 would invalidate that of 1839, Lord Granville said : "There is 
 one objection which I believe is entirely without foundation — name- 
 ly, that the very fact of the treaty which we propose being entered 
 into, will in the slightest degree impair the obligations of the treaty 
 of 1839. Those obligations we have expressly reserved in the words 
 of this treaty."*^ That Prussia and the allied German States con- 
 sidered themselves bound by the treaty of 1839 is proved from a 
 communication made by Prince Bismarck to the British Govern- 
 ment. Referring to that communication Lord Granville said: "On 
 the morning of that day (the 5th of August, 1870) Count Bernstorf 
 (the Prussian Minister at London) told me he had received a mes- 
 sage from Count Bismarck that he should be ready to concur in any 
 measure which would strengthen the neutrality of Belgium."**' While 
 the Lords were listening to Lord Granville's speech, the Commons 
 were addressed by Mr. Gladstone on the same subject. Mr. Glad- 
 stone, after referring to the proposition made to France and Prussia 
 to sign a new treaty for the maintenance of the neutrality of Bel- 
 gium during the war then going on between these two countries, 
 and also to the readiness of Great Britain to join either belligerent 
 in case the other should attempt to march its troops across Bel- 
 
 " Hansard, vol. 203, p. 1675. 
 *" Hansard, vol. 203, p. 1675. 
 
— 28 — 
 
 gium, explained to the House that after the war the contracting 
 parties would fall back upon the obligations of the treaty of 1839. 
 This shows clearly that the British Government had not concluded 
 the treaties of 1870, because that of 1839 was obsolete, as some of 
 the apologists of Germany allege, but for other reasons, some of 
 which were given out in the course of the Parliamentary debates. 
 In fact one of the principal objections made to the conclusion of the 
 treaties of 1870 was the existence of the treaty of 1839. Mr. Dis- 
 raeli (later Lord Beaconsfield) voicing the opinion of the opposi- 
 tion said in the House of Commons, in answer to Mr. Gladstone's 
 explanations, that although he approved the policy of the Govern- 
 ment in defending the neutrality of Belgium, which he called "a 
 wise and spirited policy" and in his opinion, "not the less wise be- 
 cause it was spirited," he expressed his doubt as to the wisdom of 
 concluding a new treaty of guarantee in view of the existence of 
 that of 1839. Then the future Prime Minister of Great Britain, 
 referring in a general way to the policy of England and the interest 
 the country had in the Belgian coast, said "the pohcy of England 
 ought certainly not to be a merely European policy. She has an 
 ocean Empire, and an Asiatic Empire. But she has a great interest 
 in the prosperity, the peace, and the independence of the various 
 states of Europe. Viewing it from a very limited point of view, it 
 is of the highest importance to this country that the whole coast 
 from Ostend to the North Sea should be in the possession of free 
 and flourishing communities, from whose ambition the liberty and 
 independence of England nor of any country can be menaced. We 
 find that of Europe at present constituted in such a manner, and it 
 is well such a position of affairs should be maintained."*''^ 
 
 Mr. Gladstone's answer to the mild criticism of his distinguished 
 future opponent was clear and concise, and it may not be amiss to 
 quote it verbatim: "The right honorable Gentleman (Mr. DisraeH) 
 said that as a general rule he would rather trust to treaties which at 
 present exist than cumulate them by other engagements. That ob- 
 servation reminded me that I might have pointed out more clearly 
 what we thought was the necessity for this proposed treaty. When 
 the war broke out, we naturally looked to the declaration of the 
 belligerents as to the neutrality of Belgium, and we were obliged to 
 admit * * * that those declarations contained everything that could 
 reasonably have been expected from each Power speaking singly 
 for itself ; but, notwithstanding that, there was this weakness about 
 them. In the event of the violation of the neutrahty of Belgium by 
 
 *' Hansard, vol. 203, pp. 1702-1704. 
 
— 29 — 
 
 Prussia, France held herself released, and in the event of the viola- 
 tion of neutrality by France, Prussia held herself released. I think 
 we had no right to complain of either Power. I think they said 
 everything they could have expected to say; but we thought that 
 by contracting a joint engagement we might remove the difficulty 
 and prevent Belgium from being sacrificed, and render it extremely 
 unlikely that anything would arise to compromise our neutrality. 
 That was our reason for thinking a treaty of this kind necessary, 
 because it is obvious that the treaty of 1839, whatever value it may 
 possess, could hardly be supposed to meet the circumstances of the 
 present case with reference to the declarations made by the belliger- 
 ent Powers."'*^ 
 
 On August 9, the treaties of 1870 were concluded and on the next 
 day, on the prorogation of Parliament, the Queen's speech referring 
 
 *' Hansard, vol. 203, p. 1705. 
 
 Mr. John Bright, then a member of the cabinet, disagreed with his colleagues on the 
 Belgian question, being generally opposed to intervention on the continent. Speaking 
 next day in the House on this subject, he said, "I protest against Quixotic expeditions, 
 involving this country in difficulties from which it was difficult to escape * * * I do not 
 believe I should live to see the day when any Prime Minister who was at once remark- 
 able for intelligence and conscience would, under any pretext, do anything that would 
 involve the country in a Continental war." Hansard, ib. p. 1740. Mr. Bright's prediction 
 was true because he did not live to see the present great war. 
 
 During the negotiations for the conclusion of the treaties of 1870, Mr. Gladstone, 
 writing to Mr. Bright on August i, said, "Although some members of the cabinet were 
 inclined on the outbreak of this most miserable war (of 1870) to make military prepara- 
 tion, others. Lord Granville and I among them, by no means shared that disposition, 
 nor, do I think, the feeling of Parliament was that way inclined. But the publication of 
 the treaty has altered all this, (meaning the projected agreement between France and 
 Prussia for the incorporation of Belgium to the former country as above explained) and 
 has thrown upon us the necessity either of doing something fresh to secure Belgium, or 
 else of saying that under no circumstances would we take any step to secure her from 
 absorption. This publication has wholly altered the feeling of the House of Commons, 
 and no government could at this moment venture to give utterance to such an intention 
 about Belgium. But neither do we think it would be right, even if it were safe, to 
 announce that we would in any case stand by with folded arms, and see actions done 
 which would amount to a total extinction of public right in Europe." Life of Wm. IJ. 
 Gladstone, by John Morley, vol. II, p. 341. 
 
 Mr. Gladstone rightly predicted that his country would not stand with folded arms 
 if the neutrality of Belgium was violated. Writing again on the 4th of August to the 
 same friend, he emphasized his point of view by stronger language. "The recommenda- 
 tion set up in opposition to it (to the conclusion of the treaties of 1870) generally is 
 that we should simply declare we will defend the neutrality of Belgium by arms in case 
 it should be attacked. Now the sole or single-handed defense of Belgium would be an 
 enterprise which we incline to think Quixotic. ♦ * * If the Belgian people desire, on 
 their account, to join France, or any other country, I for one, will be no party to 
 taking up arms to prevent it. But that the Belgians, whether they wotild or not, should 
 go 'plump' down the maw of another country to satisfy dynastic greed, is another mat- 
 ter. The accomplishment of such a crime as this implies, would come near to an 
 extinction of public right in Europe, I do not think we could look on while the sacrifice 
 of freedom and independence was in course of consummation.' Morley, ib. p. 342. 
 
— 30 — 
 
 to the successful termination of the negotiations said that the object 
 of the agreements was "to give additional security to Belgium 
 against the hazards of war waged upon her frontiers."*^ It is dur- 
 ing that day, namely, the loth of August, that some very animated 
 debates took place on the subject in both Houses of Parliament, and 
 particularly in the Lower House, when again Mr, Gladstone towered 
 above the other commoners as an orator, dialectician and statesman. 
 
 In the Upper House, as some members of the opposition thought 
 that the conclusion of the treaty of 1870 was uncalled for and un- 
 necessary, and were expressing their surprise as to the absence from 
 the latter instrument of the signatures of all the contracting parties 
 of that of 1839, Lord Granville, answering both criticisms, observed 
 that the conclusion of these compacts (namely, those of 1870) was 
 necessary and that they did not in the slightest degree weaken the 
 effect of the treaty of 1839 ; then referring to the abstention of the 
 other Powers from acceding to the new instruments, he said, "there 
 was a disinclination on the part of Russia to accede to this proposal ; 
 because Russia considers and says that the original treaty binds 
 them and that they wish to have an understanding of a much wider 
 description." Then, alluding to the construction given by the pre- 
 vious Government to the instrument of 1867 guaranteeing the neu- 
 trality of Luxemburg, he added, "we are not now in a position like 
 that described by a conservative Government, when we joined in a 
 treaty guaranteeing Luxemburg, and when, almost before the ink 
 with which it was signed was dry, the Prime Minister and the For- 
 eign Minister of this country announced, to the surprise of France 
 and the indignation of Prussia, that we had signed it as a collective 
 guarantee, and that as the co-operation of the other Powers was 
 the only case in which the guarantee could possibly be brought into 
 question, England had brought itself under no new obligation at 
 all. I admit that there is this disadvantage about the present en- 
 gagement, that if the contingency should arrive — which God forbid 
 — we should be obliged to act upon our engagements."^*' 
 
 In the House of Commons the opposition again criticised the 
 Government for concluding a new treaty, instead of adhering to 
 that of 1839, a^nd contended that the refusal of the other Powers, 
 parties to the latter instrument, to accede to the new treaty of 1870, 
 proved that the latter was not only unnecessary, but also that by its 
 conclusion that of 1839 became null and void. 
 
 *■' Hansard, vol. 203, p. 1766. 
 
 '" Hansard, ib. vol. 203, p. 1754 et seq. 
 
— 31 — 
 
 Mr. Gladstone, as spokesman of the Cabinet, made that day a 
 remarkable speech in which he scrutinized the question of the neu- 
 trality of Belgium and the treaty obligations of Great Britain con- 
 nected with it. As it is from some expressions contained in that 
 speech that the apologists of Germany draw their principal argu- 
 ment as to the alleged obsolescence of the treaty of 1839, it may be 
 of interest to produce his utterances in extenso. 
 
 Mr. Gladstone, in answer to the reproach made to the Government 
 for destroying the validity, as it was alleged, of the old treaty 
 through the conclusion of the new one, said : "As far as I under- 
 stood, my honorable and gallant friend * * * has complained that 
 we have destroyed the treaty of 1839 by this instrument (the treaty 
 of 1870) * * * I find that by one of the articles contained in it the 
 treaty of 1839 is expressly recognized." 
 
 Later on in the course of the discussion, answering a similar crit- 
 icism from the part of another member, he answered : "It is said 
 that the treaty of 1839 would have sufficed, and we ought to have 
 announced our determination to abide by it * ''■' * In what then lies 
 the difference between the two treaties? It is in this — that, in ac- 
 cordance with our obligations, we should have had to act under the 
 treaty of 1839 without any stipulated assurance of being supported 
 from any quarter whatever." What Mr. Gladstone meant here was 
 the stipulation in the treaties of 1870 by which France and Prussia 
 were under the obligation to side with Great Britain if either of 
 them, then at war, should violate the neutrality of Belgium. 
 
 "The treaty of 1839," continued Mr. Gladstone, "loses nothing of 
 its force even during the existence of this present treaty (that of 
 1870). The treaty of 1839 includes terms which are expressly in- 
 cluded in the present instrument, lest by any chance it should be said 
 that, in consequence of the existence of this instrument, it had been 
 injured or impaired. That would have been a mere opinion, but it 
 is an opinion which we thought fit to provide against, any com- 
 bination, however formidable, whereas by the treaty now formally 
 before Parliament we secure powerful support in the event of our 
 having to act — a support with respect to which we may well say 
 that it brings the object in view within the sphere of the practica- 
 ble and attainable, instead of leaving it within the sphere of what 
 might have been desirable, but which might have been most difficult, 
 under all the circumstances, to have realized. The honorable mem- 
 ber says that by entering into this engagement we have destroyed 
 the treaty of 1839. But if he carefully considers the terms of this 
 instrument he will see that there is nothing in them calculated to 
 
— 32 — 
 
 bear out that statement. It is perfectly true that this is a cumulative 
 treaty, added to the treaty of 1839."^^ 
 
 In the course of his speech Mr. Gladstone disapproved the appre- 
 hension of some members of the House that the absorption of Bel- 
 gium by its powerful neighbors, namely France or Prussia, would 
 be the death-knell of Great Britain. "My honorable and gallant 
 friend," answered Mr. Gladstone, "says that if Belgium were in the 
 hands of a hostile Power, the liberties of this country would not be 
 worth twenty-four hours' purchase. I protest against that state- 
 ment. * * * a statement more exaggerated I never heard fall from 
 the lips of any member in this House."^^ 
 
 Then referring to the motives which actuated England to extend 
 her, protection to Belgium, Mr. Gladstone said: "What is our inter- 
 est in maintaining the neutrality of Belgium? It is the same as that 
 of every great Power in Europe. It is contrary to the interests of 
 Europe that there should be unmeasured aggrandizement * * * 
 What is the moral effect of those exaggerated statements of the sep- 
 arate interest of England? The immediate moral effect of them is 
 this, that every effort we make on behalf of Belgium on other 
 grounds than those of interest, as well as on grounds of interest, 
 goes forth to the world as a separate and selfish scheme of ours; 
 and that which we believe to be entitled to the dignity and credit of 
 an effort on behalf of a general peace, stability, and interest of 
 Europe actually contracts a taint of selfishness in the eyes of other 
 nations because of the manner in which the subject of Belgian neu- 
 trality is too frequently treated in the House. If I may be allowed 
 to speak of the motives which have actuated Her Majesty's Govern- 
 ment in the matter, I would say that while we have recognized the 
 interest of England, we never looked upon it as the sole motive, or 
 even as the greatest of those considerations which have urged for- 
 ward * * * But there is one other motive which I shall place at 
 the head of all, that attaches peculiarly to the preservation of the 
 independence of Belgium. What is that country? It is a country 
 containing four or five millions of people, with much historic past, 
 and imbued with a sentiment of nationality and a spirit of inde- 
 pendence as warm and as genuine as that which beats in the hearts 
 of the proudest and most powerful nations." The Prime Minister 
 after bestowing further eulogy on the people of that country, said 
 that its conquest by any other Power would be a violation of public 
 law. "By the regulation of its internal concerns," continued Mr. 
 
 "Hansard, ib. vol. 203, p. 1789. 
 
 ^- It seems that this statement was first made by Napoleon I. 
 
— 33 — 
 
 Gladstone, "amid the shocks of revolution, Belgium, through all the 
 crises of the age, has set to Europe an example of a good and stable 
 government gracefully associated with the widest possible extension 
 of liberty of the people. Looking at a country such as that, is there 
 any man who hears me who does not feel that if, in order to satisfy 
 a greedy appetite for aggrandizement, coming whence it may, Bel- 
 gium were absorbed, the day that witnessed that absorption would 
 hear the death-knell of public right and pubhc law of Europe." 
 Then giving a wider scope to his thought, he continued : "But we 
 have an interest in the independence of Belgium which is wider 
 than that which we may have in the literal operation of the guaran- 
 tee. It is found in the answer to the question, whether under the 
 circumstances of the case, this country, endowed as it is with influ- 
 ence and power, would quietly stand by and witness the perpetration 
 of the direst crime that ever stained the pages of history in the dark- 
 est ages, and thus become participators of the sin." 
 
 Mr. Gladstone then tried to impress upon the House his point of 
 view that Great Britain was not, under all circumstances, bound to 
 go to the length of resorting to forcible means for the defense of 
 Belgium if her independence and neutrality was violated. "There is, 
 I admit," he said, "the obHgation of the treaty. It is not necessary, 
 nor would time permit me, to enter into the complicated question of 
 the nature of the obligations of that treaty ; but I am not able to sub- 
 scribe to the doctrine of those who have held in this House, what 
 plainly amounts to an assertion that the simple fact of the existence 
 of a guarantee is binding on every party to it irrespectively alto- 
 gether of the particular position in which it may find itself at the 
 time when the occasion for acting on the guarantee arises. The 
 great authorities upon foreign policy to whom I have been accus- 
 tomed to listen, such as Lord Aberdeen and Lord Palmerston, never 
 to my knowledge took that rigid and, if I may venture to say so, 
 that impracticable view of a guarantee. The circumstance that there 
 is already an existing guarantee in force is of necessity an impor- 
 tant fact, and a weighty element in the case, to which we are bound 
 to give full and ample consideration."^^ 
 
 It is upon this last passage, already famous, of Mr. Gladstone's 
 speech, that the apologists of Germany rely to justify the Kaiser 
 
 ^^ Sir Henry Bulwer-L,ytton, speaking that day in a humorous manner said, "I am 
 glad, Sir, to see the right honorable gentlemen, the member for Buckinghamshire (Mr. 
 Disraeli) in his place, for I think that opposition is the salt of politics, and that any 
 speech of my right honorable friend at the head of the government (Mr. Gladstone) has 
 always some flavor when seasoned by a speech from my right honorable friend opposite 
 (Mr. Disraeli)." Hansard, vol. 203, p. 203 et seq. 
 
— 34 — 
 
 for marching with his army across the Belgian territory against the 
 consent of the government of the latter country, and of making 
 Belgium one of the beUigerents of this great war, with all the dire 
 consequences to the brave people of this small but highly civilized 
 state. 
 
 In their eagerness to prove the justice of their cause, these apolo- 
 gists pverlook the fact that Mr. Gladstone was referring all the time, 
 in his speech, to the duty incumbing upon Great Britain to defend 
 Belgium and not to the right to attack her. What the then Prime 
 Minister of England meant was that in cases of guarantee of the 
 territory of a state it was questionable whether at a given moment 
 the guarantor was bound at all costs to run to the assistance of the 
 guaranteed state. In fact there may be moments when a state may 
 not be in a position to assist a nation whose independence and terri- 
 torial integrity she may have guaranteed by treaty. That undoubt- 
 edly was the paramount thought of Mr. Gladstone when he made 
 the above assertion, which has been so erroneously construed by the 
 friends of Germany ; but, it should be admitted, not by the German 
 government. The defenders of the German cause interpret that 
 passage as meaning evidently not only that the German government 
 was not bound to defend the neutral attitude of Belgium, but also 
 to attack her and make that country the theatre of vast military 
 operations. Such a construction attributed to the great British states- 
 man is an insult to his memory and a travesty of truth.^* 
 
 The guarantee of the neutrality of Belgium came up for discus- 
 sion again incidentally when on April 12, 1872, the question of inter- 
 vention in foreign countries was discussed in the House of Com- 
 mons. As some members of the House had expressed their doubt 
 as to the wisdom of Great Britain's entering into treaties of guaran- 
 tee, Mr. Gladstone, who still was at the head of the Government, ex- 
 plained to the House the limit of the responsibility placed upon Eng- 
 land from such obligations. 
 
 "My honorable friend (Sir Wilfred Lawson) appears to be of 
 opinion," said Mr. Gladstone, "that every guarantee embodied in a 
 treaty is in the nature of an absolute, imconditional engagement, 
 binding this country under all circumstances, to go to war for the 
 maintenance of the state of things guaranteed in the treaty, irre- 
 spective of the circumstances of the country itself, irrespective of 
 the causes by which that war may have been brought about, irre- 
 spective of the conduct of the Power on whose behalf the guarantee 
 
 ^* That such was his view, is proved by a speech he made subsequently on treaty 
 obligations, as we shall hereafter see. 
 
— 35 — 
 
 may have been invoked and which may itself have been the cause 
 of the war, and irrespective of those entire changes and circum- 
 stances and relations which the course of time frequently introduces, 
 and which cannot be overlooked in the construction of these engage- 
 ments. I have often heard Lord Palmerston give his opinion of 
 guarantees both in this House and elsewhere, and it was a familiar 
 phrase of his, which, I think, others must recollect as well as my- 
 self, that while a guarantee gave a right of interference it did not 
 constitute of itself an obligation to interfere. Without adopting 
 that principle as a rigid doctrine or theory applicable to this sub- 
 ject — on which it is very difficult, and perhaps, not very convenient 
 to frame an absolute rule — yet I think there is very great force in 
 Lord Palmerston's observation." Mr, Gladstone then referred to 
 the treaties of 1870 for the guarantee of Belgian neutrality and ex- 
 plained the reasons which induced the government to conclude them. 
 It might be interesting, — although, in some way, it is a repetition 
 of his previous opinions, — to quote part of his speech dealing with 
 the question. "In 1870," he said, "while we had a guarantee of a 
 general character already upon record, we proceeded to make a 
 most stringent guarantee for the defense of Belgium against the 
 dangers into which it appeared to have been brought, not only by 
 the war which had just then broken out, but likewise by certain cir- 
 cumstances anterior to that war. But why was it that this stringent 
 guarantee of 1870 was entered into? It was not because of the 
 guarantee contained in the treaty of 1839. That treaty would have 
 stood where it was but for the new circumstances that occurred, and 
 for the universal feeling and sentiment of the country with regard 
 to those circumstances. It is not possible, I think, to contend from 
 the nature of these general guarantees, that they are such as to ex- 
 clude a just consideration of the circumstances of the time at which 
 they may be supposed to be capable of being carried into effect. ^ I 
 believe that consideration of circumstances will always have a de- 
 termining influence not only without derogation to good faith, but 
 in -perfect consistency with the principles of good faith, upon the 
 practical course to be pursued." 
 
 Mr. Gladstone concluded his speech by making a statement as to 
 what the British policy ought to be on exceptional occasions and 
 laid down some principles of a general character which may not be 
 amiss to quote as having a connection on the points then at issue. 
 "We cannot," said the Prime Minister, "undertake to register a pos- 
 itive and absolute vow, by which we are to be restrained from recog- 
 nizing any duty beyond our island barrier. The people of this 
 
- 3^) - 
 
 country would not consent tO' record such a vow, and I am bound to 
 say that if they did, they would never keep it ; for in great occasions, 
 partly from considerations of danger, which, though remote, might 
 become proximate, partly from considerations of honor, partly from 
 sentiments of sympathy, partly from the sense of an interest, not 
 narrow or selfish but wide and honorable, in the maintenance of gen- 
 eral peace, they would think, without any disposition to a meddle- 
 some policy, that there might be occasions when it would be their 
 duty to look beyond what immediately and absolutely concerned 
 themselves, to the general interest of the civilized world. To an ab- 
 stract proposition of this kind we cannot be parties. The past er- 
 rors of this country, moreover, have not lain on the side of refrain- 
 ing from war, but on the side of needlessly rushing into it. Cau- 
 tions, therefore, we ought to accept ; but though they are likely to 
 be useful warnings against the indulgence of a besetting sin ; we 
 cannot agree entirely to foreswear brotherhood with other nations 
 with respect to any dangers except those which menace an absolute 
 invasion of our territory."^^ 
 
 That Mr. Gladstone was as scrupulous as the present British min- 
 isters in upholding the sanctity of treaties is proved also by his views 
 expressed in the anonymous article he contributed to the Edinburg 
 Review in January, 1871. Referring then to the projected violation 
 of the neutrality of Luxemburg by Prussia : "With a great inconsist- 
 ency," he wrote, "Count Bismarck is signing treaties with one hand, 
 whilst he is tearing them with the other." Then speaking on the duty 
 of a state to keep its treaty engagements, he said : "With the destruc- 
 tion of good faith and honor between man and man, between nation 
 and nation, everything else that is worth living for comes in its turn 
 to be destroyed. * * * Whatever else may betide, the policy of Eng- 
 land stands firm on this immovable basis, that treaties, when made, 
 must be respected. No Government which is to exist in this country 
 can abandon those principles : no Government can flinch from the 
 active defense of them. * * * Meanwhile it imposes on us the duty 
 of cautiously abstaining from entering into any fresh engagement 
 whatever with states devoid of political principles and the no less 
 imperative duty of maintaining the positive engagements we have 
 already contracted with the strength and energy of the Empire."^ 
 That is exactly what Great Britain is now doing.^*' 
 
 ''' Hansard, vol 210, p. 1176 et seq. 
 
 ^° The guiding doctrine of both political parties in England with respect to interna- 
 tional obligations, has been in favor of their maintenance. Thus, the late Lord Salisbury, 
 then Prime Minister, speaking at Albert Hall on May 6, 1899, and referring to treaty 
 obligations, said, "But it is necessary in human affairs, to make engagements and con- 
 
— 37 — 
 
 Most of the writers who have treated the Belgian question dwelt 
 exclusively on the violation by Germany of the treaty of 1839, — to 
 which Prussia was a contracting party — and touched only incident- 
 ally the very important point of the violation of the neutrality of 
 Belgium, independently of that instrument. Assuming for the sake 
 of argument that the treaty of 1839 is obsolete, and there was there- 
 fore no obligation imposed upon any Power to protect Belgium, 
 does it then follow that any of the present belligerents had the 
 right to send their troops across the Belgian territory in order to 
 attack their enemy and generally to make that country the basis of 
 their warlike operations? Many persons have overlooked the fact 
 that independently of any treaty or guarantee, independently of the 
 Hague Convention, Belgium, as a non-belligerent state, was entitled 
 to all the rights enjoyed by every Power which does not participate 
 in a war. Nor have these rights been created by the treaty of 1839 
 or by the Hague Convention on the rights of neutrals. The principle 
 that the territory of a non-belligerent state should be respected by 
 belligerents is very old and well known ; and it is equally well known 
 that unless such neutral state consents to grant free passage to the 
 troops of either belligerent — in which case she might be considered 
 as taking part in the war — none of them has the right to force a 
 passage for her troops across such neutral territory. 
 
 It is claimed by the friends of Germany that had Belgium granted 
 a free passage to the Kaiser's troops, she would have been treated 
 in the same way as the Grand Duchy of Luxemburg and would have 
 obtained compensation for any damages suffered by her people. 
 Leaving aside all moral considerations and the self-respect that every 
 
 tracts with your neighbor, and it is highly necessary when you have made them to 
 keep them, otherwise when you propose to make them again nobody will trust you. * * * 
 I do not of course mean to deal with international obligations in a pedantic spirit or to 
 deny they are subject to modifications in consequence of the necessity of things which 
 may not often happen in private affairs, but I maintain that the principle of acting 
 upon treaties to which you have deliberately acceeded is a sacred principle and one which 
 lies at the base of the civilization of the world, and to maintain that because of the 
 action — let it be as bad as you will — of one particular holder of power you have a right 
 to scatter your obligation to the wind, is to undermine the security on which your 
 international relations repose. Look in any quarter of the world you please^in Europe, 
 in America, in China, nay, above all in Africa — it is upon the faith of treaties they rely." 
 London Times, May 7, 1889. 
 
 Viscount James Bryce in seconding the motion of the address in reply to the King's 
 speech in the House of Commons on November 11, 1914, said: "We are fighting against 
 the doctrine that treaties may be broken whenever it pleases a strong Power to do so, 
 and against the doctrine that whatever is necessary becomes thereby permissible. * ♦ * 
 This is a conflict of the principles of good faith and justice against the principles of 
 violence and of force — and in a conflict of principles there can be no end until one or 
 the other principle triumphs." London Times, November 12, 1914. 
 
-38- 
 
 state ought to have, and looking into the question merely from the 
 practical point of view; one might ask what guarantee was there for 
 Belgium that her territory would not have been used as the theatre 
 of the war operations? Was there any certainty that Germany 
 would have had such a sweeping victory that Belgium would have 
 escaped the horrors of war? The facts prove the very contrary 
 because the Belgian territory would have been invaded also by the 
 allies in order to chase the enemy. Is there any certainty that the 
 territory of Luxemburg will escape destruction if the allies repulse 
 the German Army and chase it across the territory of that country? 
 The offer of compensation therefore in such a case cannot create 
 a right, and all the arguments of the world cannot convince im- 
 partial observers that such offer made by the German Government 
 to Belgium, could have justified the invasion of the Belgian territory 
 by the Kaiser's troops with all the terrible consequences that fol- 
 lowed. 
 
 But if Belgium was guilty of acts justifying the invasion of her 
 territory, how can the Kaiser and his Ministers justify the invasion 
 of the Grand Duchy of Luxemburg, whose government was not 
 accused of any act justifying such an invasion, even according to 
 the German Government's standard of justice? The verdict of the 
 world, in both cases, will always be that Germany disregarded all 
 treaty engagements and trampled under foot all the principles and 
 usages of the law of nations, which have been so eloquently ex- 
 plained by her own brilliant writers. Suffice it to mention only the 
 opinion of one of her most distinguished authors on International 
 Law, who referring to the guarantee of the neutrality of Belgium, 
 says, that "the States which have guaranteed the neutrality of Bel- 
 gium and would not defend her against an aggressor, would not be 
 considered as having kept their engagements and would be rendered 
 guilty of a violation of law."^'' 
 
 In concluding this cursory review of the controverted questions 
 of the violation of treaties and generally of the rights of neutral 
 states, it may not be amiss to comment briefly on the theory pro- 
 pounded by a former Colonial Secretary of Germany, who, in his 
 eagerness to defend the policy of his country, wrote that a state 
 is not morally bound to respect her treaty obligation, "involving 
 either a sacrifice of its own existence or an abdication of its sover- 
 eign function."^^ 
 
 " Bluntschli, L,e Droit International Codifie, art. 440. 
 
 ^ Dr. Bernhard Dernburg, North American Review, December, 1914. Also New 
 York Sun, December 6, 1914. 
 
— 39 — 
 
 In support of his view he quotes the above referred passage from 
 Mr. Gladstone's speech, already famous, and a decision of the Su- 
 preme Court of the United States on a Chinese Exclusion case.°^ 
 
 That Mr. Gladstone's utterances have no bearing on the question 
 at issue, has been already shown and it is needless to revert to them. 
 
 That the dictum — and such it was — of the Supreme Court had in 
 view an entirely different question having no connection whatever 
 with the abstract doctrine of Dr. Dernburg, will be seen from the 
 extracts from the very decision quoted by him. But before doing 
 that it might be necessary to explain shortly the principle of Inter- 
 national Law governing this point, of which Dr. Dernburg gives us 
 only a glimpse. 
 
 Leaving out of discussion the treaties called transitory or of dis- 
 position, such as those recognizing the independence of a state, the 
 cession of territory, and the like compacts, which are of a perma- 
 nent character and may only be altered by a new treaty, concluded 
 either voluntarily or involuntarily, there remain two other kinds of 
 instruments : namely, treaties proper, such as those of commerce 
 and navigation and of similar character, which may have been con- 
 cluded for a certain period or no time may have been fixed for their 
 duration ; and treaties concluded specifically for a contingency of 
 war between the contracting or other parties. The latter comprise 
 the Declaration of St. Petersburg, the Geneva and Hague Conven- 
 tions, or at least the stipulations which would take effect in case of 
 war, and other instruments of that character. Now treaties guar- 
 anteeing the neutrality of a state are concluded for the express con- 
 tingency of war and may be, therefore, included in the last category. 
 It might be useless to enter into the discussion of the question as to 
 whether treaties proper may be denounced without the consent of 
 both parties, because the instruments guaranteeing the neutrality of 
 a state do not belong to that class. Suffice it only to say, that in 
 principle, the great majority of writers admit that a change of cir- 
 cumstances not foreseen at the time of the conclusion of such a 
 treaty, may, in certain cases, justify a nation to denounce such a 
 contractual obligation, provided a suitable indemnification is offered 
 to the other contracting party, in case such state suffers any injury. 
 But in all these cases a previous examination of the facts and cir- 
 cumstances is essential, and it would be wrong to apply beforehand 
 an abstract rule. Each case should be dealt with in accordance with 
 the actual situation.''^ 
 
 f-" Chae Chan Ping v. United States, 130 U. S. 581. 
 
 6* See article by the present writer under the title "The Sanctity of Treaties," in 
 Yale Law Journal, February, 191 1, in which the views of the principal authorities on 
 international law are given. 
 
~ 40 — 
 
 Now the treaty of 1839 was concluded, as above explained, for 
 the express contingency of war. It had to take effect only in case 
 of war between the present or other belligerents, endangering the 
 independence and neutrality of Belgium. It would therefore be un- 
 reasonable, if not grotesque, to maintain that a compact of that 
 nature, which has been solemnly entered into for that particular con- 
 tingency, can be abrogated by one of the principal contracting 
 parties. On the other hand it is a paradox to assert (as Dr. Dern- 
 burg does), that " by way of consolation she (Germany) was offered 
 a scrap of paper and invited to accept the interpretation placed upon 
 it by the Powers leagued against her," for the simple reason that 
 no question of the construction of the clauses of that treaty arose 
 between the contracting parties, except in the writings of the apolo- 
 gists of the Kaiser's Government. On the contrary, as above stated, 
 up to the declaration of the present war, official Germany considered 
 herself as being bound by the stipulations of the treaty of 1839. 
 
 Official declarations as to the validity of the treaty of 1839 from 
 the part of Germany are not lacking. Thus, in the course of the 
 sitting of the Budget Committee of the Reichstag on April 29, 
 1914, Herr von Jagow, Secretary of State for Foreign Affairs, said 
 that the neutrality of Belgium was determined by international con- 
 ventions and that Germany was resolved to respect these conven- 
 tions.®^ 
 
 This was affirmed by Herr von Heeringen, Minister of War, when 
 he also declared in the Reichstag that Germany would not lose sight 
 of the fact that Belgian neutrality was guaranteed by international 
 treaties.®^ 
 
 It may also be pertinent to mention the fact that Germany, or 
 rather Prussia on behalf of the other German states, was party to 
 the Conference of London of 187 1, — which was held on account of 
 the abrogation by the Czar of Russia of certain clauses of the Treaty 
 of Paris of 1856, — when the rule was laid down in a Declaration 
 that "it is an essential principle of the law of nations that no Power 
 can liberate itself from the engagements of a treaty, nor modify the 
 stipulations thereof, unless with the consent of the Contracting 
 Powers by means of an amicable arrangement."*'- 
 
 Now coming to the opinion of the Supreme Court of the United 
 States in the Chinese Exclusion case, above referred to, which is 
 used by Dr. Demburg as supporting his own theory of the right 
 of states to abrogate ex parte their treaties, and particularly that of 
 
 '•* Gray Paper of Belgium, inclosure in no. 12. 
 
 s- Herstlet, Map of Europe by Treaty, vol. Ill, p. 433. 
 
— 41 — 
 
 i839j let us see what were the facts in that case, and what the 
 highest court of the land decided. 
 
 In 1887 a subject of China, residing up to that time at San Fran- 
 cisco, went back to his country with the intention of returning to 
 the United States, having been furnished with the required certifi- 
 cate by the authorities. During his absence Congress passed an Act 
 by which subjects of the Celestial Empire, who returned to China, 
 could not be allowed to land in this country. The provisions of that 
 Act were evidently contrary to the stipulations of previous treaties 
 concluded between the United States and China. Consequently 
 there was a conflict between a treaty and an Act of Congress, which 
 was not without precedent. The question to be decided by the Su- 
 preme Court was which of these two expressions of the Legislature 
 — since treaties are concluded with "the advice and consent" of the 
 Senate — shall be binding upon the country. The court had to deal 
 with a particular question submitted to its decision, nor was it for 
 the first time that it had to pass upon two conflicting acts of another 
 department of the Government. On previous occasions it 
 had already decided that an Act of Congress passed subsequent to 
 a treaty should prevail, because that was the last expression of the 
 sovereign will, and that it was not for the judicial but for the other 
 departments of the Government to be concerned with the conse- 
 quences resulting from the abrogation of a treaty. Such was also 
 the ruling in this particular case''^ from which the official apologist 
 of Germany quotes a dictum in support of his theory. 
 
 Mr. Justice Field, in delivering the opinion of the Court in that 
 case said, among other things, that the validity of the Act (exclud- 
 ing Chinese from the United States, even if they were former resi- 
 dents) was assailed as being in efifect an expulsion from the country 
 of Chinese laborers, in violation of existing treaties between the 
 United States and the Government of China, and of rights vested in 
 them under the laws of Congress. "It must be conceded," said the 
 court, "that the Act of 1886 is in contravention of express stipula- 
 tions of the treaty of 1868 and of the supplementary treaty of 1880, 
 but it is not on that account invalid or to be restricted in its enforce- 
 ment. The treaties were of no greater value than the Act of Con- 
 gress. By the Constitution, laws made in pursuance thereof and 
 treaties made under the authority of the United States are both 
 declared to be the supreme law of the land, and no paramount au- 
 thority given to the one over the other. A treaty, it is true, is in its 
 
 •'^ Cliae Chan Ping v. United States, 130 U. S. 581. 
 
— 42 — 
 
 nature a contract between nations and is often merely promissory in 
 its character, requiring legislation to carry its stipulations into effect. 
 Such legislation will be open to future repeal or amendment. If 
 the treaty operates by its own force, and relates to a subject within 
 the power of Congress, it can be deemed in that particular only the 
 equivalent of a legislative act, to be repealed or modified at the 
 'pleasure of Congress. In either case the last expression of the 
 sovereign will must control." 
 
 The passage upon which Dr. Demburg relies, and alleges that 
 it strengthens his theory of the right of his country to disregard 
 the treaty of 1839, is as follows : "It will not be presumed that the 
 legislative department of the Government will lightly pass laws 
 which are in conflict with the treaties of the country ; but that cir- 
 cumstances may arise which would not only justify the Government 
 in disregarding their stipulations, but demand in the interest of the 
 country that it should do so, there can be no question. Unexpected 
 events may call for a change in the policy of the country." But the 
 court did not stop there but indicated the course which may be taken 
 by the other contracting party, as follows : 
 
 "Neglect or violation of stipulations on the part of the other 
 contracting party may require corresponding action on our part. 
 When a reciprocal engagement is not carried out by one of the con- 
 tracting parties, the other may also decline to keep the correspond- 
 ing engagement. * * * And further, the question whether our gov- 
 ernment is justified in disregarding its engagements with another 
 nation is not one for the determination of the courts." 
 
 After endorsing the opinion of Mr. Justice Curtis that the power 
 to refuse the execution of a treaty was a prerogative "which no 
 nation could be deprived of without affecting its independence,"®* the 
 court added, that "if the power mentioned is vested in Congress, 
 any reflection upon its motives, or the motives of any of its members 
 in exercising it, would be entirely uncalled for. The Court is not a 
 censor of the morals of other departments of the Government; it 
 is not invested with any authority to pass judgment upon the motives 
 of their conduct." Then coming to the point at issue, the court said, 
 "That the Government of the United States, through the action of 
 the legislative department, can exclude aliens from its territory, is a 
 proposition which we do not think open to controversy. Jurisdic- 
 tion over its own territory is a proposition which we do not think 
 open to controversy. Jurisdiction over its own territory to that 
 extent is an incident of every independent nation. It is a part 
 
 '^* Taylor v. Morton, 2 Curtis 454-459. 
 
— 43 — 
 
 of its indq)endence. If it could not exclude aliens it would be to 
 that extent subject to the control of another power. * * * If 
 * * * the government of the United States, through its legislative 
 departments, considers the presence of foreigners of a different race 
 in this country, who will not assimilate with us, to be dangerous to 
 its peace and security, their exclusion is not to be stayed because 
 at the time there are no actual hostilities with the nation of which 
 the foreigners are subject. The existence of war would render the 
 necessity of the proceeding only more obvious and pressing. The 
 same necessity, in a less pressing degree, may arise when war does 
 not exist and the same authority which adjudges the necessity in 
 one case must also determine it in the other. In both cases its deter- 
 mination is conclusive upon the judiciary. If the government of the 
 country of which the foreigners excluded are subjects, is dissatisfied 
 with the action, it can make complaint to the executive head of our 
 Government, or resort to any other measure which, in its judgment, 
 its interest or dignity may demand, and there lies its only remedy. 
 >;-- * * -Q^^ faj. different is this case, where a continued suspension 
 of the exercise of a governmental power is insisted upon as a right, 
 because, by the favor and consent of the Government, it has not 
 heretofore been exerted with respect to the appellant or to the class 
 to which he belongs. Between property rights not affected by the 
 termination or abrogation of a treaty, and expectations of benefits 
 from the continuance of existing legislation, there is as wide a dif- 
 ference as between realization and hope." 
 
 It is clear from the above extracts that the Supreme Court of the 
 United States adjudged a question affecting the laws and Constitu- 
 tion of the United States and was not concerned with the conse- 
 quences of the action of the Executive or of the Legislative Depart- 
 ment of the Government. It was passing upon a legal question, on 
 a matter of internal policy, and was not considering, and could not 
 consider, how and in what manner the Government would justify 
 itself towards a foreign Power whose treaty was abrogated by an 
 Act of Congress. The Court had to deal with a concrete question, 
 and was not propounding an abstract doctrine.. It had to decide, as 
 on former occasions, whether an Act of Congress would prevail 
 over a previously concluded treaty. From an abstract dictum of a 
 Court to conclude that a state may throw to the winds any treaty, 
 particularly an instrument which has been concluded for the very 
 contingency which arose at the time of its violation, is a thesis 
 which cannot possibly meet with the approval of public opinion in 
 this or any other neutral country. 
 
— 44 — 
 
 But all the justifications and excuses for the violation of a solemn 
 treaty and the trampling underfoot of the general principles and 
 usages of the law of nations in regard to non-belligerent states — 
 be they official or semi-official, are mere verbiage — the bare truth 
 being the eagerness of Germany to invade France through the 
 easiest way and with the least possible injury and danger to her 
 army. The memorable interview of the British Ambassador at 
 Berlin, both with the Imperial Chancellor and with the Secretary of 
 State for Foreign Affairs, gives the clue to the situation. When 
 Sir E. Goschen asked Herr von Jagow "whether the Imperial Gov- 
 ernment would refrain from violating Belgian neutrality," the latter 
 replied, "that he was sorry to say that his answer must be No." * " * 
 The reasons given for the violation of Belgian neutrality, were in the 
 words of the German Secretary of State, "that they had to advance 
 into France by the quickest and easiest way, so as to get well ahead 
 with their operations and endeavor to strike some decisive blow as 
 early as possible. That it was a matter of life and death for them, 
 as if they had gone by the more southern route they could not have 
 hoped, in view of the paucity of roads and strength of the for- 
 tresses, to have got through without formidable opposition entailing 
 great loss of time ; that this loss of time would have meant time 
 gained by the Russians for bringing up their troops to the German 
 frontier." And that in fine, "rapidity of action was the great Ger- 
 man asset, while that of Russia was an inexhaustible supply of 
 troops."'"^ 
 
 There can certainly not be plainer language than this. When one 
 connects it with the statement of the Imperial Chancellor, Bethmann 
 Von Hollweg, in the Reichstag on Aug. 4, when he pronounced the 
 memorable words that Germany was in a state of necessity and that 
 necessity knew no law, and made the admission that the violation 
 of the neutrality of Belgium was contrary to the dictates of inter- 
 national law, we need not go any further in order to discover the 
 real motives of the unlawful action of the German government.'"' 
 
 °'' Great Britain White Paper no. 160. 
 
 "^ Frederick the Great, the ancestor of the present Kaiser of Germany does not seem 
 to have had much faith in treaties of guarantee. "All the guarantees," he wrote at one 
 time, "are like the work of a filigree more apt to please the eyes than of any utility. 
 (Quoted by GefFcken in Holtzendorf's Handbuch des Volkerrecht, vol. Ill, p. 107. 
 See Frederick, Historic de mon Temps I ch. IX quoted by P. Fodere, op. cit. II no. 
 1014. Also by A. Rivier op. cit. II p. 103. 
 
 Nor, it seems, did Prince Bismarck think otherwise. Lord Morley, the biographer of 
 Mr. Gladstone, tells us that in 1865 the Dutch Minister in Vienna told the British 
 Ambassador in that city, that in a conversation he (the Dutch Minister) had with 
 Prince Bismarck (then Count Bismarck) the latter had given him to understand that 
 without colonies Prussia could never become a great maritime nation, that he (Bis- 
 
— 45 — 
 
 The facts speak for themselves. 
 
 Such in short are the historical facts and the controverted points 
 connected with the neutrality of the Grand Duchy of Luxemburg 
 and the Kingdom of Belgium. These states were placed under the 
 aegis, so to say, of some of the leading Powers of Europe, their ter- 
 ritory and independence were pledged as being beyond the sphere 
 of war operations. Besides, these permanently neutralized small 
 states, as members of the family of nations of the civilized world, 
 were entitled to enjoy all the rights and privileges recognized for 
 centuries for non-belligerent nations. But not only were these inter- 
 national usages considered as non-existent by Germany, but also 
 rights which had been safeguarded by international compacts of a 
 most solemn character; to violate them is, to use the words of a 
 former Colonial Secretary of Germany ,^^ "a wanton disregard of 
 plighted faith justifying the expulsion of even the greatest Power 
 from the community of civilization." 
 
 Both Luxemburg and Belgium are now under the heel of the 
 conqueror, the one being too weak to defend itself, submitting re- 
 luctantly to the will of the invaders ; the other, having attempted to 
 resist, is reduced to misery and ruin. 
 
 We seem to be yet far from the day when brutal force shall be 
 subservient to moral power and righteousness, and when the rules 
 governing international relations shall be regulated by high prin- 
 ciples of morality. For the moment, one is unfortunately bound to 
 admit the "bankruptcy of International law," and to confess that 
 what was said over two thousand years ago by a Greek historian, 
 that "there is no right stronger than the arms," and that "whoever is 
 strong, is considered as always speaking right and acting right,"®* 
 is still the dominant feature of the century in international relations. 
 
 Theodore P. Ion. 
 
 New York. 
 
 marck) had coveted Holland less for her own sake, than for her colonies, and that when 
 he (Bismarck) was reminded that Belgium was guaranteed by the European Powers, 
 Bismarck replied that "a guarantee was in these days of little value." John Morley, 
 Life of Wm. E. Gladstone, vol. II. p. 320. 
 
 The late F. Crispi, Premier of Italy, told of an interview he had with Prince Bis- 
 marck in the course of one of his visits to Berlin ; the German Chancellor referring to 
 Belgium, said, "Belgium cannot but render us one service, whether she wishes it or not; 
 that is to permit the passage through her territory of a German army. * * * If she has 
 to undergo a territorial change, she will submit to it in agreement with us, under certain 
 determined conditions which will only depend upon us." Quoted by Mme. Juliette Adam 
 in Nouvelle Revue of October i, 1888, reproduced in same of December i, 1914. 
 
 ''^ Dr. Bernhard Dernburg, in New York Sun, December 6, 1914. 
 
 **Thucydides. 
 
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