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prevent it, constitutes on the part of the individuals who engage in it a participation in hostilities, and as such is confessedly an unneutral act. Should the government of the individual itself supply such articles it would clearly depart from its position of neutrality. The private citizen undertakes the business at his own risk, and against this risk his government can not assure him protection without making itself a party to his unneutral act.

These propositions are abundantly established by authority.

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Maritime states, says Heffter, have adopted, " in a common and reciprocal interest, the rule that belligerents have the right to restrict the freedom of neutral commerce so far as concerns contraband of war, and to punish violations of the law in that regard. This right has never been seriously denied to belligerents." " Says Kent: "The principal restriction which the law of nations imposes on the trade of neutrals, is the prohibition to furnish the belligerent parties with warlike stores, and other articles which are directly auxiliary to warlike purposes.”

"If the neutral [government]," says Woolsey, "should send powder or balls, cannon or rifles, this would be a direct encouragement of the war, and so a departure from the neutral position. Now the same wrong is committed when a private trader, without the privity of his government, furnishes the means of war to either of the warring parties. It may be made a question whether such conduct on the part of the private citizen ought not to be prevented by his government, even as enlistments for foreign armies on neutral soil are made penal. But it is claimed to be difficult for a government to watch narrowly the operations of trade, and it is annoying for the innocent trader. Moreover, the neutral ought not to be subjected by the quarrels of others to additional care and expense. Hence, by the practice of nations, he is passive in regard to violations of the rules concerning contraband, blockade, and the like, and leaves the policy of the sea and the punishing or reprisal power in the hands of those who are most interested, the limits being fixed for the punishment by common usage or law. It is admitted that the act of carrying to the enemy articles directly useful in war is a wrong, for which the injured party may punish the neutral taken in the act." c

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Says Manning: "The right of belligerents to prevent neutrals from carrying to an enemy articles that may serve him in the direct" prosecution of his hostile purposes has been acknowledged by all authorities, and is obvious to plain reason. The nonrecogni

tion of this right

would place it in the power of neutrals to

a Heffter, Droit Int., Bergson's ed., by Geffcken, 1883, 384.

Kent, Int. Law, 2d ed., by Abdy, 330.

c Woolsey, Int. Law, §§ 193, 194.

interfere directly in the issue of wars-those who, by definition, are not parties in the contest thus receiving a power to injure a belligerent, which even if direct enemies they would not possess." a

"A belligerent," says Creasy, "has by international law a right to seize at sea, and to appropriate or destroy, articles, to whomsoever they may belong, which are calculated to aid the belligerent's enemy in the war, and which are being conveyed by sea to that enemy's territory."

"The neutral power," says Holland, "is under no obligation to prevent its subjects from engaging in the running of blockades, in shipping or carrying contraband, or in carrying troops or despatches for one of the belligerents; but, on the other hand, neutral subjects, so engaged, can expect no protection from their own government against such customary penalties as may be imposed upon their conduct by the belligerent who is aggrieved by it." e

"By this term [contraband] we now understand," says Baker, “ a class of articles of commerce which neutrals are prohibited from furnishing to either one of the belligerents, for the reason that by so doing, injury is done to the other belligerent. To carry on this class of commerce is deemed a violation of neutral duty, inasmuch as it necessarily interferes with the operations of the war by furnishing assistance to the belligerent to whom such prohibited articles are supplied."? It may be observed that in some of the foregoing quotations the question is discussed as one affecting the rights of "belligerents.” But the question of belligerency is important only as affecting the question of the right of seizure on the high seas. The circumstance that the parties, in consequence of the nonrecognition of their belligerency, are not permitted to exercise visitation and search on the high seas does not alter the nature or detract from the unneutral character of the act of supplying arms and munitions of war to the parties to an armed conflict.

The fact that the supplying of such articles is considered as a participation in the hostilities is shown not only by the authority of writers, but also by numerous state papers.

President Washington, in his famous neutrality proclamation of April 22, 1793, countersigned by Mr. Jefferson, as Secretary of State, announced" that whosoever of the citizens of the United States shall render himself liable to punishment or forfeiture under the law of nations, by committing, aiding, or abetting hostilities against any of the said powers, or by carrying to any of them those articles which are deemed contraband by the modern usage of nations, will not

a Manning's Law of Nations, Amos's edition, 352.
b Creasy, First Platform of Int. Law, 604.

e Holland, Studies in Int. Law, 124-125.

d Baker's First Steps in Int. Law, 281.

receive the protection of the United States, against such punishment or forfeiture." a

Mr. Jefferson, in the subsequent note to the British minister, quoted in Wharton's Digest (I. 510), observes that in the case of contraband the law of nations is satisfied with the "external penalty' pronounced in the President's proclamation.

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President Grant, in the proclamation issued by him August 22, 1870, during the Franco-German war, declares, in the most precise

terms:

"While all persons may lawfully, and without restriction, by reason of the aforesaid state of war, manufacture and sell within the United States arms and munitions of war, and other articles ordinarily known as 'contraband of war, yet they can not carry such articles upon the high seas for the use or service of either belligerent,

without incurring the risk of hostile capture and the penalties denounced by the law of nations in that behalf. And I do hereby give notice that all citizens of the United States, and others who may claim the protection of this Government, who may misconduct themselves in the premises, will do so at their peril, and that they can in no wise obtain any protection from the Government of the United States against the consequences of their misconduct."

In the neutrality proclamations issued during the war between the United States and Spain the following provisions are found in which the furnishing of arms and munitions of war to either party to the conflict is expressly treated as an act of unneutrality.

The Brazilian Government, by a circular of April 29, 1898, declared to be "absolutely prohibited" the "exportation of material of war from the ports of Brazil to those of either of the belligerent powers, under the Brazilian flag, or that of any other nation." e

The King of Denmark issued, April 29, 1898, a proclamation prohibiting Danish subjects "to transport contraband of war for any of the belligerent powers.'

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Great Britain's proclamation of April 23, 1898, warned British subjects against doing any act "in derogation of their duty as subjects of a neutral power," or "in violation or contravention of the law of nations," among which was enumerated the carrying of "arms, ammunition, military stores or materials;" and declared that "all persons so offending, together with their ships and goods, will rightfully incur and be justly liable to hostile capture, and to the penalties denounced by the law of nations.” ¿

a Am. State Papers, For. Rel. I. 140.

Wharton's Int. Law Dig., III. 607–608.

c Proclamations and Decrees during the War with Spain, 13.

d Proclamations, 31, 35.

The governor of Curaçao, acting under instructions of the minister of the colonies of the Netherlands, issued a decree prohibiting "the exportation of arms, ammunition, or other war materials to the belligerents."

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Portugal, while stating, in Article IV. of her neutrality decree of April 29, 1898, that "all articles of lawful commerce" belonging to subjects of the belligerent powers might be carried under the Portuguese flag, and that such articles belonging to Portuguese subjects might be carried under the flag of either belligerent, yet declared: "Articles that may be considered as contraband of war are expressly excluded from the provisions of this article."

Were further proof needed of the unneutral and noxious character of contraband trade, it might be found in the doctrine of infection, under which innocent cargo is condemned when associated with contraband merchandise of the same proprietor, and the transportation penalized by loss of freight and expenses, and, under various circumstances, by confiscation of the ship."

From what has been shown it may be argued that, without regard to the recognition or nonrecognition of belligerency, a party to a civil conflict who seeks to prevent, within the national jurisdiction and at the scene of hostilities, the supply of arms and munitions of war to his adversary commits not an act of injury, but an act of self-defense, authorized by the state of hostilities; that, the right to carry on hostilities being admitted, it seems to follow that each party possesses, incidentally, the right to prevent the other from being supplied with the weapons of war; and that any aid or protection given by a foreign government to an individual to enable him with impunity to supply either party with such articles is to that extent an act of intervention in the contest.

VII. ANALOGUES OF CONTRABAND.

1. MILITARY PERSONS.

$1264.

On September 14, 1847, Mr. Buchanan, Secretary of State, instructed Mr. Bancroft, American minister at London, to bring to the notice of the British Government the action of Captain May, of the British mail steamer Teviot, who had brought from Havana to Vera Cruz General Paredes, the late President of Mexico, who was, said Mr. Buchanan, "the chief author of the existing war between

a Proclamations and Decrees during the War with Spain, 27. Proclamations, 61. (See also, the proclamation of the toatai of Shanghai, id., 20, and the instructions of the Haitian Government, id., 39.) e Walker's Science of Int. Law, 511-512.

that Republic and the United States," and "the avowed and embittered enemy" of the latter. Knowing, as Captain May must have known, that General Paredes would exert all his influence to prolong and exasperate the war, it was, declared Mr. Buchanan, truly astonishing that he "should have brought this hostile Mexican general, under an assumed name, on board of a British mail steamer, to Vera Cruz, and aided or permitted him to land clandestinely, for the purpose of rushing into the war against the United States." Mr. Buchanan said that the President had not yet determined on the course' he would pursue in regard to British mail steamers, but he would be justified in withdrawing from them the privilege which had been granted of entering the port of Vera Cruz. He would not, however, immediately resort to that extreme measure, since he was convinced that the British Government would at once adopt efficient measures to prevent such a violation of their neutrality in the future. "British mail steamers," said Mr. Buchanan, "can not be suffered to bring to Vera Cruz either Mexican citizens or the subjects of any other nation, for the purpose of engaging in the existing war on the part of Mexico against the United States. A neutral vessel which carries a Mexican officer of high military rank to Mexico, for the purpose of taking part in hostilities against our country, is liable to confiscation, according to the opinion of Sir William Scott, in the case of the Orozembo (6 Robinson's Reports, 430), and this even although her captain and officers were ignorant that they had such a person on board." In conclusion, Mr. Buchanan instructed Mr. Bancroft to acquaint Lord Palmerston with the circumstances of the case, and if it should turn out that Captain May or any of his officers were officers in the British service, to ask for their dismissal or for such other punishment as would clearly manifest their Government's disapproval of their conduct.

Mr. Bancroft brought the case to the attention of Lord Palmerston in the sense of his instructions on October 8, 1847.

On November 16, 1847, Lord Palmerston answered that, the lords commissioners of the admiralty having investigated the affair, her Majesty's Government had informed the directors of the Royal Mail Steam Packet Company, to which the Teviot belonged, "that the directors are bound to testify, in a marked manner, their disapproval of Captain May's conduct, in having thus abused the indulgence afforded to the company's vessels by the Government of the United States;" and Lord Palmerston added that the directors of the company had accordingly stated that they would immediately suspend Captain May from his command and that they publicly and distinctly condemned any act on the part of their officers which might be regarded as a breach of faith towards the Government of

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