respect for the authority of this distinguished writer, I must decline to adopt a doctrine which rests on so shadowy a distinction.

Professor Bluntschli, undertaking to pronounce a judgment on the Opinion of Profes. Subject-matter of this dispute, as it were ex cathedra, in an article in the "Revue de Droit International" of 1870, lays down the following doctrine:

sor Bluntschli.

L'état neutre qui veut garantir sa neutralité doit s'abstenir d'aider aucune des parties belligérantes dans ses opérations de guerre. Il ne peut prêter son territoire pour permettre à l'une des parties d'organiser en lieu sûr des entreprises militaires. Il est obligé de veiller fidèlement à ce que des particuliers n'arment point sur sou territoire des vaisseaux de guerre, destinés à être livrés à une des parties belligérantes. () (Bluntschli, Modernes Völkerrecht, section 763.)

Ce devoir est proclamé par la science, et il dérive tant de l'idée de neutralité que des égards auxquels tout état est nécessairement tenu envers les autres états avec lesquels il vit en paix et amitié.

La neutralité est la non-participation à la guerre. Lorsque l'état neutre soutient un des belligérants, il prend part à la guerre en faveur de celui qu'il soutient, et dès lors il cesse d'être neutre. L'adversaire est autorisé à voir dans cette participation un acte d'hostilité. Et cela n'est pas seulement vrai quand l'état neutre livre lui-même des troupes ou des vaisseaux de guerre, mais aussi lorsqu'il prête à un des belligérants un appui médiat en permittant, tandis qu'il pourrait l'empêcher, que, de son territoire neutre on envoie des troupes ou des navires de guerre.

Partout où le droit de neutralité étend le cercle de son application, il restreint les limites de la guerre et de ses désastreuses conséquences, et il garantit les bienfaits de la paix. Les devoirs de l'état neutre envers les belligérants sont en substance les mêmes que ceux de l'état ami, en temps de paix, vis-à-vis des autres états. Aucun état ne peut nou plus, en temps de paix, permettre que l'on organise sur son territoire des agressions contre un état ami. Tous sont obligés de veiller à ce que leur sol ne devienne pas le point de départ d'entreprises militaires, dirigées contre des états avec lesquels ils sont en paix.

I entirely agree in all that is thus said by this able jurist-that is, if I properly apprehend his language, and am right in understanding it to apply not to the sale of ships of war, simpliciter, but to the sending out of troops and armed ships for the purpose of what the learned professor terms "military enterprises," and to the "organizing of aggressions against a friendly state."

Another eminent jurist, who has espoused the cause of the United Option of M Ro- States, in a very able review of the work of Professor MounIn Jacquemyns. tague Bernard, and whose opinion is referred to by the United States as an authority in their favor, M. Rolin Jacquemyns, does not, so far as I collect, deny the legality of the sale of ships of war, but rests his opinion on the general circumstances connected with the construction and escape of the Alabama. But the spirit in which this author writes will be seen from the following passage:

Il eût dans tous les cas été digne d'un jurisconsulte de la valeur de M. Bernard de ne pas se borner à examiner cette grave question des devoirs de la nentralité au point de vue du droit positif existant. C'est par l'opinion hautement émise de savants comme lui que les idées générales en matière de droit sont appelées à se rectifier et à se compléter. Or, s'il y a une chose que chaque guerre nouvelledémontre, c'estle caractère, non-seulement insuffisant, mais fallacieux de la vieille définition: neutrarum partium. Si au début de cette dernière et épouvantable guerre de 1870, l'Angleterre, au lieu d'être obstinément neutrarum partium, avait clairement désapprouvé l'offensive inique de la France, est-ce que les intérêts de la justice et de la paix n'auraient pas été mieux servis ? L'idéal du personnage neutrarum partium, c'est le jugeq ui, dans l'apologue de l'huitre et des plaideurs, avale le contenu du mollusque et adjuge les écailles aux deux belligérants. Il n'est d'aucun parti, mais il s'engraisse scrupuleusement aux dépens de tousdeux. Une telle conduite de la part d'un grand peuple peut être aussi conforme aux précédents que celle du vénérable magistrat dont parle la fable. Mais quand elle se fonde sur une loi positive, sur une règle admise, c'est une preuve que cette loi on cette règle est mauvaise, comme contraire à la science, à la dignité et à la solidarité humaine.1

1" Revue de droit international et de législation comparée," 1871, p. 125.

This reasoning may be very well deserving of attention for the future; but, for the present purpose, when the authority of M. Rolin Jacque myns as to the culpability of Great Britain is cited, I must protest against the question being determined not according to "existing positive law," but to the opinion of "savants" as to what the law should have been, or should now be made. The tribunal cannot, I apprehend, adopt such a principle informing its judgment. Its functions are not to make the law, but to decide according to the rules of the treaty, with the light which the acknowledged principles of international jurisprudence and the established usages of nations may afford for its assistance. The occasion may be a tempting one for giving effect to speculative opinions or individual theories. But a decision founded on such a prinple would not insure the approbation of wise and judicious minds, or command the respect of those who might suffer from a judgment which would be at variance with the first principles of equity and justice.

Let us see what has been the practical view taken of the subject in England or America. As far back as the year 1721, ships Opinion of the of war having been built in England, and sold to the Czar judges of England. of Russia, then at war with Sweden, and complaint having been made by the Swedish minister, the judges were summoned to the House of Lords, and their opinion was asked, whether by law the King of England had the power to prohibit the building of ships of war, or of great force for foreigners, in any of His Majesty's dominions. And the judges, with the exception of one, who had formed no opinion, answered that the King had no such power. It is plain that, if the sale of such vessels had been an offense against international law, the King would have had power to prevent it by the prosecution of the parties building and selling such ships, as offenders against the municipal law, as the offense would have been a misdemeanor at the common law.

It appears that Chief Justice Trevor, and Parker, afterwards Lord Chancellor, had given the like opinion seven years before.1

Case of the Santissima Trinidad.

The judgment of Judge Story in the well-known case of the Santissima Trinidad, shows that the sale of armed ships of war has never been held to be contrary to law in America. In that case a vessel called the Independencia, equipped for war and armed with twelve guns, had been sent out from the American port of Baltimore, upon a pretended voyage to the northwest coast, but in reality to Buenos Ayres, then at war with Spain, with instructions to the supercargo to sell her to the Buenos Ayres government if he could obtain a certain price. She was sold to that government accordingly, and, having been commissioned, was sent to sea and made prizes. She afterward put into an American port, and having there received an augmentation of her force, again put to sea and captured a prize. The validity of this prize was questioned in the suit on two grounds: 1st. That the sale of the vessel to a foreign government by American citizens, for the purpose of being used in war against a belligerent with whom the United States were at peace, was a violation of neutrality and illegal; 2d. Because the capture had been made after an augmentation of the force of the vessel in a port of the United States. The capture was held invalid on the latter ground. Upon the first, the judge delivered judgment as follows:

The question as to the original illegal armament and outfit of the Independencia may be dismissed in a few words. It is apparent, that though equipped as a vessel of war, she was sent to Buenos Ayres on a commercial adventure, contraband, indeed, but in no shape violating our laws or our

14. Fortescue's Reports," p. 388.

2 Wheaton, p. 283.

Judgment of Mr. Justice Story.

national neutrality. If captured by a Spanish ship of war during the voyage, she would have been justly condemned as good prize for being engaged in a traffic prohibited by the law of nations. But there is nothing in our laws, or in the law of nations, that forbids our citizens from sending armed vessels, as well as munitions of war, to foreign ports for sale. It is a commercial adventure which no nation is bound to prohibit, and which only exposes the person engaged in it to the penalty of confiscation. Supposing, therefore, the voyage to have been for commercial purposes, and the sale at Buenos Ayres to have been a bona fide sale, (and there is nothing in the evidence before us to contradict it,) there is no preten se to say that the original outfit on the voyage was illegal, or that a capture made after the sale was, for that cause alone, invalid.

It is now sought to shake the authority of this judgment by saying that it was unnecessary to the decision of the cause, as the prize was held to be invalid on the other ground; but it was, nevertheless, a solemn judg ment upon a point properly arising in the cause, and, so far as I am aware, it has never been questioned.

Case of the Gran Para.

It is indeed alleged (but for the first time) in the American case that the authority of this decision is to be looked upon as overruled or controlled by a judgment given by the same court in the case of the Gran Para. Now, the latter judgment was a judg ment of the same court, (of which, therefore, Mr. Justice Story was himself a member,) and was pronounced on the very next day. We are told in the case of the United States, that the cases were argued, the one on the 20th, the other on the 28th of February, 1822; that the judgment in the case of the Santissima Trinidad was pronounced on the 12th of March, that in the case of the Gran Para on the ensuing day, the 13th. It is said, and truly, that "there can be no doubt they were considered together in the consultation-room," and lawyers are gravely asked to believe that it was intended by the second judgment to overrule or qualify the doctrine involved in the first. No English or American lawyer could entertain the notion for a moment that, if the same court had intended to overrule, or even to qualify, the judgment given immediately before, it would not have referred to it in terms and given its reasons for so sudden a change in its views of the law. But the truth is-and I am at a loss to understand how the American Counsel can have failed to overlook this, or to call attention to it when citing the decision, that so far from overruling or affecting the judgment in the Santissima Trinidad, the case of the Gran Para had nothing in common with it beyond that of being a suit for the restitution of prize. It was not the case of the sale of a ship to a foreign government at all. It was simply the case of an American privateer armed in defiance of American law, and cruising under a fictitious commission, the property in her still remaining unchanged in the American citizen by whom she had been fitted out. The great importance of this distinction will be seen in another part of this case.

In a learned and able article in the well-known publication, the "American Law Review" of January, 1871, the writer, after referring to the case of the Santissima Trinidad as “a famous and leading case," states the law as follows:

American Review.

It may be declared as indubitable that the pure unalloyed bargain and sale of a ship' even a ship of war, to a belligerent is legal by the rules of international law; that such a ship is, however, contraband of war, and if captured after sale on her way toward delivery, or before sale on her way toward a market where she is intended to be sold to a belligerent, she will be properly condemned. Neutrality acts have not been intended to change this state of the law, but only to furnish sufficient means for preventing its abuse. Our original proposition that the doctrine of contraband of war does not operate as a restriction upon trade, upon dealings which are purely commercial, remains correct, even in this matter of war vessels.

In this view of the law I am glad to have the concurrence of our dis

tinguished colleague, Mr. Adams, who, writing to Earl Opinion of Mr. Russell on the 6th of April, 1863, states, with reference to Adais. certain American authorities which Lord Russell had appealed to:

The sale and transfer by a neutral of arms, of munitions of war, and eren of vessels of war, to a belligerent country, not subject to blockade at the time, as a purely commercial transaction, is decided by these authorities not to be unlawful. They go not a step further; and precisely to that extent I have myself taken no exception to the doctrine.1 This being the present state of international law on this subject, if it is desirable to introduce new rules, it must be done by the common consent of nations, not by the speculative doctrines proibition of sale of of theorists, however distinguished.

Question ALS 10

articles contraband of war.

But is it desirable that it should be altered, and that obstacles to the industry and trade of neutral nations should be created?

Azuni observes:

Une grande partie du commerce de quelques nations européennes, telles que les Suédois, les Norvégiens, et les Russes, consiste en marchandises nécessaires pour la guerre maritime, pour la construction et pour l'équipement d'une flotte; elles vendent en temps de paix, à quiconque en a besoin, du fer, du cuivre, des mats, des bois, du goudron, de la poix, et des canons, enfin des navires de guerre entiers. Quelles raisons pourrait-il y avoir de priver ces nations de leur commerce et de leur manière de subsister, à l'occasion d'une guerre à laquelle ils ne prennent aucune part? Il n'y a daus le code de la justice et de l'équité rien en faveur d'une telle protection. Il est donc nécessaire d'établir, comme maxime fondamentale de tout droit, que, les peuples neutres devant et pouvant licitement continuer le commerce qu'ils font en temps de paix, on ne doit faire aucune distinction de denrées, de marchandises, et de manufactures, quoique propres à la guerre, et que, par cette raison, la vente et le transport aux parties belligérantes en sont permis, si le commerce actif et passif était établi en temps de paix, sans qu'on puisse prétendre, en aucune manière, que la neutralité soit violée, pourvu que cela se fasse sans animosité, sans préférence et sans partialité.

I cannot but feel the force and justice of these observations. I ask in like manner, "Why-unless, indeed, on account of reasons of state affecting the interests of the neutral state itself, in which case private interests must give way to those of the public-are the armorers of Birmingham or Liege, or the shipbuilders of London or Liverpool, to have their business put a stop to because one of their customers happens to be engaged in war with another state? It is not enough to say that but for the war the demand for the articles in question would not have arisen. From whatever cause it may proceed, increased demand is the legitimate advantage of the producer or the merchant, and it is by the advantage which periods of increased and more active demand bring with them that the loss arising from occasional periods of stagnation is balanced and made good.

The authors who desire to put further restraints on the free commerce of neutrals than international law has hitherto done, appear to me to think too much of the interests of belligerents, who are the disturbers of the world's peace, and to be too unmindful of the interests of neutral nations, who are simply seeking occupation for their industry and commerce, indifferent by whom they are employed. They seem to think that the belligerent is granting an indulgence or conferring a favor on the neutral in allowing him to remain a stranger to the war, which the grateful neutral should be too glad to purchase by the sacrifice of all rights at all incompatible with the convenience of the bellig

erent.

M. Hautefeuille, indeed, invokes humanity, and would prohibit the sale of articles of warlike use in order to prevent and put an end to war. But if considerations of humanity are to be taken into account, it is obvious that the sale of such things should be prohibited in time of

1 United States Documents, vol. ii, p. 591.

peace, as well as of war. They are not the less available in time of war because bought in time of peace.

The armorer or the shipbuilder who is thus required to close his establishment to the belligerents when war arises, may continue to manufacture and sell, undisturbed, his instruments of destruction down to the very hour when war is proclaimed. Had Prussia, for instance, anticipated the attack of France as likely to occur so soon, and had desired to procure a fleet, she might have resorted to the shipwrights' yards of England till she possessed ships enough to cope with her formidable adversary on the seas. But let war but be proclaimed, and according to these views the work becomes at once criminal, the workman's hammer must be arrested, the shipwright's yard closed. There may be reasons of state in certain instances-as according to British and American views in the case of ships-for putting a restraint on the freedom of trade, but it seems idle to base it on the score of humanity. The effect would simply be that a government meditating the invasion of another country would have to provide itself in time. The neighbor upon whom it thus brings war on the sudden, and who may be comparatively unprepared, is not to be at liberty to seek the materials of war elsewhere, but is to be left at the mercy of the invader. Peaceful nations would thus be at the mercy of others more ambitious and warlike and better prepared than themselves. The weak would be sacrificed to the strong. Let me suppose a people rising in a just and righteous cause. I will not offend the patriotic susceptibility of my honorable and esteemed colleague by suggesting, for a single instant, even hypothetically, the possibility that the cause of the insurgents might have been such a one-I will take what he will readily admit to have been so, the separation of the United States from the mother country. Let me suppose that, while Great Britain had her fleets prepared, her troops armed, her arsenals well stored, America had neither ships nor arms, nor munitions of war, with which to resist the superior forces of her adversary. Would it have been in the interest of humanity that she should be shut out from the markets of the world? An appeal to considerations of humanity has no doubt something very captivat ing about it; but I question very much whether humanity would not lose more than it would gain by the proposed restraint on the commercial freedom of nations.

out

for immediate

service.

The case, however, becomes essentially different when a ship thus Ship of war sent equipped and armed is not sent out to be taken to the port of the belligerent purchaser, but is sent to sea with officers and a fighting crew for the purpose of immediate warfare. Under such circumstances the transaction ceases to be one of mere commerce, and assumes the form of a hostile expedition sent forth from the territory of the neutral. Such an expedition is plainly a violation of neutrality, according to international law, and one which the neutral government is bound to do its best to prevent.

crew sent out in different ships.

But what if, in order the better to avoid observation and detection, Armament and the vessel is sent forth, without its armament, without its war crew, and these, sent to it by another or different vessels, are put on board of it in some place or water beyond the jurisdic tion of the neutral? In my opinion, except so far as the question of diligence is concerned, as to which it may form a very material element, this makes no difference. The ship, the armament, the crew, though sent out separately, form each of them part of one and the same enterprise or undertaking. Taken together, they constitute a hostile expedition and must be treated as such. It is as though a hostile force were