CHAPTER XLIX. LIBELS ON FOREIGN STATES. to publish libel tend ing to dis turb peace § 1900. It has already been seen that it is at common law an indictable offence to publish a libel tending to disturb Indictable the peace between the State in which the publication is made and a foreign State. In the federal courts, from their lack of common law jurisdiction, such offences cannot be punished unless in conformity with statute. eign state. But there is authority to the effect that in the state courts prosecutions may be maintained for such libels at common law.1 1 Supra, § 1612 a. 619 with for CHAPTER L. BREACH OF NEUTRALITY.1 Indictability not convertible with national Sympathy not participation, § 1902. Otherwise as to recruiting, § 1904. And so of fitting out and arming cruiser, § 1905. Indictability not convertible with nat And so of lending money for belligerent And so of furnishing coal from a constant § 1901. IT by no means follows, that because, by the law of nations, a neutral State is bound to a certain line of conduct towards belligerents, its subjects are bound by the same line of conduct, and are responsible to their ional duty. State for any such acts of participation in foreign wars, as by the law of nations it is bound to prevent. A nation, on the one side, may say, "I do not choose to suppress these acts of participation, or I cannot suppress them, but I will take on myself the consequences, and will make reparation." Such was the position of President Washington, before the passage of the neutrality statute. Prosecutions against the offenders were attempted at common law; and although, as we have seen, it was at first held that the federal courts had common law jurisdiction of offences against the law of nations, yet, the conclusion was soon reached, that without a statute such offences could not be judicially reached. This conclusion was communicated to the English minister, Mr. Hammond, with the announcement that 1 As recent authorities on the topic in the text may be cited Revue de Droit Intern. 1874; Calvo, Examen des trois rêgles, &c., pp. 433, 533; in same volume are Opinions of President Woolsey, M. Rolin-Jaequemyns, Mr. W. B. Lawrence, and Mr. M. Bernard, 620 on the same topic; Revue de Droit Intern. 1875; Discussion of the Rules by Messrs. Lorimer, Neumann, RolinJaequemyns, and Westlake; Bluntschli, Moderne Völkerrecht (3d ed.), Nordlingen, 1878, §§ 749 et seq. As to common law jurisdiction see supra, § 253. Sympathy the United States government would nevertheless hold itself responsible to foreign nations for any infractions of its international obligations, though it might not be able to proceed penally against its own citizens for such infractions. The same attitude was assumed by England in the Alabama controversy. Its legislation might be defective, it was admitted, so far as concerned the power to punish British subjects for breaches of neutrality; but this in no way limited its obligations to make good to the United States losses incurred through such misconduct. And, on the other hand, a State may impose by statute on its subjects an abstention much more strict than that which is imposed by international law on itself. If so, its subjects are bound by the statute, and may be convicted of offences, which, for municipal purposes, it deems breaches of neutrality, though the litigated acts would not be breaches of neutrality by the law of nations.1 § 1902. Strong sympathy may be felt for one of the parties to a foreign struggle, without, by international law, any breach of neutrality.2 Such sympathy was frankly ex- not participressed by President Washington with France at the pation. beginning of the French and English war, but both then and afterwards a strict neutrality was maintained in this war. the French-German war of 1870, the Germans in the United States were outspoken in their expressions of sympathy with Germany, and the French in the United States with France, but this was so far from being regarded as a breach of the neutrality laws, or as imposing any penal responsibility on the parties so speaking, that President Grant, in his proclamation of neu trality issued August 22, 1870, expressly recognized it as perfectly consistent with the national neutral attitude. During our own civil war, public meetings were held in England expressing strong sympathy with the South, and so spoke some of the leading English papers; but that the English government was not bound to prohibit these demonstrations, our own government conceded. Nor is this toleration of recent recognition. Simisels for the purpose of war." Opinion in the Alabama case, p. 255. 1 The English Foreign Enlistment Act, according to Sir A. Cockburn, "going far beyond the restraints which international law imposes on the neutral subjects, prohibits even the fitting out and equipping of ves In 2 See supra, §§ 227, 1340, 1403. 8 See Wheaton Int. L. § 439; Bemis, American Neutrality, Boston, 1866; Declaration of the International lar meetings, sometimes unchecked by the government of the day, sometimes even encouraged by it, were held in England for the purpose of expressing sympathy with the Greek insurrection against Turkey, in 1820-4; and with Kossuth and his revolutionary agitations in 1850. For the same reason it has never been contended in England that it is any international breach of neutrality for meetings of Irishmen to be held in the United States expressing sympathy with Fenianism. nish belligerent with munitions of war. § 1903. Is it an indictable offence, supposing the law of Not indict nations to be part of the municipal law of the land, for able to fur- the subject of a neutral State to furnish munitions of war, even though these be contraband of war, to a belligerent? At first glance, this would seem to be a participating in the war in which such belligerent is engaged, and hence a breach of neutrality. A more careful study of the question, however, leads us to a contrary conclusion. (1.) Between selling arms to a man, and an indictable participation in an illegal act intended by the vendee with such arms, there is no necessary causal relation. "The miner, the manufacturer, and the merchant," as has already been said,1 "may regard it not only as possible but probable, that their staples may be used for guilty purposes, but neither miner, manufacturer, nor merchant becomes thereby penally responsible." "To enable a gunshot wound to be inflicted, an almost innumerable series of conditions is necessary. It is necessary that the gun should be procured by the assailant. It is necessary that the gun should have been made by the manufacturer. It is necessary that the steel of the gun should have been properly tempered; that the bullet should have been properly cast; that the materials from which bullet, tube, and trigger were made should have been dug from the mine and duly fashioned in the factory. . All these are necessary conditions of the shooting, without which the shooting could not have taken place. No one of them, however, is in the eye of the law the cause." (2.) To make the vendor of munitions of war indictable would make it necessary to impose like penal responsibility on the manufacturer; and if on Institute, Hague, 1875; Annuaire, 1 Supra, § 169. 1877; Bluntschli, Mod. Völkerrecht, § 756, ed. of 1878. the manufacturer, then on the producer of the raw material which the manufacturer works up. In each case the article contributed is one of the conditions of war. In each case the producer or vendor knows that the thing produced or sold will probably be used for this purpose. Hence, in times of war, not merely would neutral sale of munitions of war become penal, but penal responsibility would be attached to the production of any of the materials from which such weapons are manufactured, if such weapons afterwards fell into the hands of a belligerent. (3.) Nor would this paralysis be limited to periods of war. A prudent government, long foreseeing a rupture, or preparing in secret to surprise an unprepared foe, might take an unfair advantage of its adversary, were this permitted, by purchasing in advance of the attack all munitions which neutral States might have in the market; but on the theory before us, a neutral State could not permit this without breach of neutrality, since to permit such sales would be to give a peculiarly unfair advantage to the purchasing belligerent. Hence, if such sales are indictable in times of war, they would a fortiori be indictable in times of peace. Why would a foreign nation, it would well be argued, want in time of peace to buy Dahlgren guns, or Armstrong guns, or iron-clads, unless to suddenly pounce down on an unprepared foe? No munitions of war, therefore, could be sold in any country unless to its own subjects, and for its own use; and countries which cannot produce the iron or coal necessary for the manufacture of artillery would have to do without artillery, if it is indictable for a neutral to furnish a belligerent, either present or prospective, with munitions of war. (4.) To establish a national police which would prevent the sale of such commodities would impose a burden on neutral States not only intolerable, but incompatible with constitutional traditions. It might be possible in a land-locked province such as Switzerland; it might be even possible in an island like Great Britain, and with a navy so powerful; but in a country as vast as the United States, and with an ocean frontier so extended, it would be impossible to establish a system of adequate prevention without employing naval and military armaments inconsistent with our settled policy, and imposing on us a pecuniary burden far greater than any corresponding loss to belligerents. (5.) The |