can be allowed is that, if the captors have clear and definite proof that the destination of the cargo is hostile while that of the vessel is neutral, the courts may separate between the two and condemn the former while releasing the latter. Further it is impossible to go without inflicting grave injustice on neutral trade. CHAPTER VI. CONTRABAND TRADE. § 277. The nature of contraband trade. Neutral states are not bound to stop it. EVERY belligerent may capture goods of direct and immediate use in war, if he is able to intercept them on their passage to his enemy in any place where it is lawful to carry on hostilities. But neutral merchants may trade in arms, ammunition and stores in time of war, as well as in time of peace. Thus a conflict of rights arises; and it is the task of International Law to make some compromise between the admitted claims of belligerents on the one hand and neutrals on the other. This it does by allowing the subjects of neutral states to carry contraband to either belligerent, but insisting that they shall do so at their own risk. Their government is not bound to restrain them from trading in the forbidden goods, neither has it any right to interfere on their behalf if the articles in question are captured by one belligerent on their way to the other. Whenever a trade in contraband of war reaches large dimensions, the state whose adversary is supplied by means of it is apt to complain. It reproaches the government of the offending vendors with neglect of the duties of neutrality, and argues that friendship and impartiality alike demand the stoppage of a traffic which supplies its foe with the sinews of war. But it invariably receives in reply a reminder that the practice of nations imposes no such obligation upon neu tral powers. They are bound to prevent the departure of armed expeditions from their shores and the supply of fighting gear to belligerent vessels in their ports. When this is done, the utmost that can be expected of them in the matter of ordinary business transactions is that they shall warn their subjects of the risks run by carriers of contraband merchandise, and give notice that those who incur them will not be protected by the force or the influence of the state. Several important international controversies have been conducted on these lines. Thus, when in 1793 Great Britain complained of the sale of arms and accoutrements to an agent of the French Government in the United States, Jefferson, who was the Secretary of State in Washington's Cabinet, replied that American citizens "have always been free to make, vend and export arms. It is the constant occupation and livelihood of some of them. To suppress their callings, the only means, perhaps, of their subsistence, because a war exists in foreign and distant countries, in which we have no concern, would scarcely be expected. It would be hard in principle and impossible in practice. The law of nations, therefore, respecting the rights of those at peace, does not require from them such an internal derangement in their occupations. It is satisfied with the external penalty pronounced in the President's proclamation, that of confiscation of such portion of these arms as shall fall into the hands of the belligerent powers on their way to the ports of their enemies. To this penalty our citizens are warned that they will be abandoned."1 These words were quoted on behalf of Great Britain when the positions of the two powers were reversed, and the United States, in the case submitted by them to the Geneva Arbitrators in 1872, ranked among their causes of complaint against the British Government its refusal to put a stop to the trade in contraband of war carried on between England and the ports of the Southern 1 Wharton, International Law of the United States, § 391. Confederacy. On this occasion, as in 1793, the answer of the neutral was deemed conclusive. The British Government did not press its complaint against the administration of Washington, and the Board which arbitrated on the Alabama Claims gave no damages to the United States in respect of the purchase of arms in England by Confederate agents. Indeed the conduct of commercial states when neutral puts out of court any complaints they may make when belligerent. Prussia, for instance, whose merchants had conducted an enormous trade in contraband goods across her eastern frontiers during the Crimean War, denounced in vigorous language the conduct of the British authorities in permitting English firms to sell arms and ammunition to France in 1870.2 Moreover, belligerents themselves often take advantage of that freedom of trade they deem monstrous and unfriendly when it operates to the benefit of their foes. The United States Government sent agents to England for the purchase of munitions of all kinds during the first two years of the struggle with the revolted South. France in 1795 complained loudly of the capture of neutral ships laden with supplies of food for her suffering people; but in 1885 she claimed the right to seize and confiscate cargoes of rice carried by neutrals to certain ports of China, on the ground that rice was an important article in the diet of the Chinese people. It was then the turn of Great Britain to resist the attempt. She gave notice that she would not recognize the validity of any condemnations of her merchantmen engaged in the rice trade, unless they were carrying the grain to Chinese camps or places of naval or military equipment. Fortunately the war came to an end before a case arose; and it is hardly likely that France will renew 1 American Case, Pt. IV.; British Counter Case, Pt. IV. 2 British State Papers, Franco-German War, No. 3 (1870), pp. 72, 73, 75-77, 97. 8 Documents Diplomatiques, Affaires de Chine (1885), pp. 29–32; British State Papers, France, No. 1 (1885), pp. 14–21. claims so contrary to justice and to her own previous contentions. It would be easy to multiply instances. The conduct of states in the matter of contraband trade has been guided far more by the self-interest of the moment than by any considerations of principle. But amid all the inconsistencies of international recrimination one fact stands out clear and indubitable. No powerful neutral state has ever interfered to stop a trade in arms and ammunition carried on by its subjects with agents of a belligerent government. No belligerent has ever been prevented by moral scruples or legal prohibitions from buying war material in neutral markets. It is impossible, therefore, to avoid the conclusion that the only restraint on such a trade known to International Law is the liability of contraband to capture, even under a neutral flag. So clear is this that nearly every writer of repute embodies it in his account of the law of contraband. The little band who hold that neutral powers are bound to prohibit the sale of arms and other instruments of warfare within their territory to belligerent agents, base their arguments upon what they deem considerations of justice and equity, which in their judgment override the practice of states.1 Others, who do not feel at liberty to construct their systems without some reference to the arrangements of international society, but nevertheless desire to place as many restrictions as possible upon trade in contraband, have drawn a distinction between large and small commercial transactions.2 The latter they regard as a continuation of such ordinary trade as may have existed before the war, whereas the former are called into existence by the war and cannot be considered as in any sense a prolongation of the previous operations of neutral merchants. If these statements are to be regarded as an expression of existing law, it is sufficient to say that the rule they advo 1 Hautefeuille, Droits des Nations Neutres, Vol. II., Tit. VIII., Sec. III.; Phillimore, III., § CCXXX. 2 Bluntschli, Droit International Codifié, § 76. |