"In so far as the danger of there being any trouble between the English officers and the Boer sympathizers at Chalmette, I do not believe that it will occur, but even if it does, I can vouch that it will soon be suppressed by the officials of the parish of St. Bernard.

"I have always endeavored to enforce obedience to the laws of this State, as well as to the laws of the United States, and therefore should you inform me that said shipments are contrary to the law I will certainly prevent any further violations of the said law." (H. Doc. 568, 57 Cong. 1 sess.)

"I have the honor to acknowledge the receipt of your letter of the 11th instant, in which you quote a letter received from Doctor Hendrik Muller, envoy extraordinary of the Orange Free State, dated The Hague, November 28 last, in which he calls your attention to the alleged shipment of material, contraband of war, by the English Government on a large scale from the United States, maintains that such shipment is contrary to the law of nations, and suggests your remonstrating with this Government against the continuance of such irregularities.

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In reply I have the honor to quote from 1 Kent's Commentaries, page 142, concerning the well-established doctrine as to the law of nations on the subject. Chancellor Kent said:

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'It was contended on the part of the French nation in 1796, that neutral governments were bound to restrain their subjects from selling or exporting articles contraband of war, to the belligerent powers. It was successfully shown, on the part of the United States, that neutrals may lawfully sell, at home, to a belligerent purchaser, or carry, themselves, to the belligerent powers, contraband articles, subject to the right of seizure, in transitu. The right has since been explicitly declared by the judicial authorities of this country.'

"Mr. Justice Story, in the case of The Santissima Trinidad (7 Wheaton, 340), used the following language:

"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 persons engaged in it to the penalty of confiscation.'

"In the case of The Bermuda, 3 Wallace, 514, Chief Justice Chase said:

"Neutrals in their own country may sell to belligerents whatever belligerents choose to buy. The principle exceptions to this rule are, that neutrals must not sell to one belligerent what they refuse to sell to the other,' etc.

"An examination of Wharton's Digest of International Laws, section 391, will make it clear that the Executive Departments of this Government from the earliest period have maintained the correct

ness of the doctrine stated by Chancellor Kent, and that, in this position, they have been supported by the decisions of the courts of the United States and by the opinions of eminent authorities on international law.

"Under the circumstances, therefore, and in view of the fact that the law on the subject in the United States is well settled, the Department does not consider it necessary to cause an investigation as to the correctness of the facts alleged by Doctor Muller."

Mr. Hay, Sec. of State, to Mr. Pierce, Dec. 15, 1899, MS. Notes to Foreign
Consuls, IV. 464.

"If the sale of munitions of war is to be held a breach of neutrality, instantly upon the declaration of war between two belligerents, not only the traffic by sea of all the rest of the neutral powers of the world would be exposed to the inconveniences of which they are already impatient, but the whole inland trade of every nation of the earth, which has hitherto been free, would be cast into the fetters. It would give to the belligerent the right of interference in every act of neutral domestic commerce, till at last the burden would be so enormous that neutrality itself would become more intolerable than war, and the result of this assumed reform, professing to be founded on "the principles of eternal justice," would be nothing less than universal and interminable hostilities.' (Sir W. Harcourt, Historicus, 134.) For, not only the vendor of the iron would have to be prevented from selling to the vendor of the gun, but the miner and machinist would have to be prevented from working for the vendor of the iron. A neutral sovereign, therefore, would have either to stop all machinery by which munitions of war could be produced for belligerent use, or expose himself to a call for whatever damages his failure so to do might have caused either belligerent. Under such circumstances it would be far more economical and politic to plunge into a war as a belligerent than to keep out of it as a neutral.

"The mere act of furnishing by the subject of a neutral state a belligerent with munitions of war, does not involve such neutral state in a breach of neutrality. (1) Between selling arms to a man and indictable participation in an illegal act intended to be effected by the vendee through the instrumentality of such arms there is no casual connection. The miner or manufacturer, to appeal to an analogous case, may regard it not only as possible, but as probable, that his staples, when consisting of weapons or of the materials of weapons, may be used for guilty purposes, but neither miner nor manufacturer becomes thereby penally responsible. (2) To make the vendor of munitions of war punishable would make it necessary to impose like responsibility on the manufacturer; and if on the

manufacturer, then on the producer of the raw material which the manufacturer works up. In each case the thing made or sold is one of the necessities of war. In each case the producer or vendor knows that the thing produced or sold will probably be used for warlike purposes. Hence, in times of war, not only would neutral sales of munitions of war become penal, but penal responsibility might be attached to the production of any of the materials from which such weapons are manufactured. (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 a sale would be to give a peculiarly unfair advantage to the purchasing belligerent. Hence, if such sales are indictable in times of war, they are à fortiori indictable in times of peace. Why would a foreign nation, it might well be argued, want in times of peace to buy Armstrong guns, or ironclads, unless to pounce suddenly 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 can not produce the iron or coal necessary for the manufacture of artillery or ironclads, would, if no nation can furnish munitions of war to another, will have to do without artillery or ironclads. (4) To establish a national police which could prevent the sale of such staples would impose on neutral states a burden, not only intolerable, but incompatible with constitutional traditions. It might be possible in a land-locked province like Switzerland; it might even be possible in islands of the size of Great Britain; but in a country so vast as the United States, and with an ocean frontier so extended, it would be impossible to establish a police that could preclude such exportation without vesting in the National Government powers and patronage inconsistent with republican institutions, and so enormously expensive as to make it more economical to interpose in a war as a belligerent than to watch such war as a neutral. For these and other reasons the United States Government has insisted on the right of a neutral to send munitions of war to a belligerent; and this position was taken by President Grant in his proclamation of August 22, 1870. The right was stoutly contested, however, by Germany, while it was maintained by both England and the United States."

Note of Dr. Francis Wharton, in Wharton's Int. Law Digest, III. 516, § 391, citing Wharton's Crim. Law (9th ed.), § 1903; 1 Kent's Com. 142; 6 Webster's Works, 452.

"As an illustration of the difficulties that would arise in this country from an extension of neutral liability, may be mentioned the fact that in 1882-83, munitions of war, approximating in value to $5,000,000, were forwarded from San Francisco to China. The ammunition cases had the brand U. S. Government, 45 caliber, and all the cases were from Springfield, Mass.' 'During that period 240,000 Springfield rifles, and 25,000,000 cartridges in all have been forwarded, besides from 500 to 800 bales of cotton duck suitable for tents, by express by each steamer for China.' (Philadelphia Inquirer, Aug. 8. 1883.) The United States Government could not, except by measures which would involve not only enormous expense, but a vast and perilous increase of police force, prevent parties from buying up ammunition at public or private sale, and sending it to China. Yet, if the non-prevention of such exportations imposed liability for the damage thereby produced, the United States would be obliged to pay for all the injury done to English or French property by such ammunition in case of a war between China and France or England.” (Wharton, Com. Am. Law, § 246.)

As to the question of dealing in contraband, confusion has resulted from the failure to distinguish the different lights in which contraband traffic is to be viewed. In works on international law we often find the statement that the sale of contraband is unlawful, while we also find the statement that it is lawful. Both statements are true in the sense in which they are intended to be understood, but they refer to two different things.

The fundamental principles are simply these: From the point of view of neutrality the question of unlawfulness is presented in two aspects, (1) that of international law, and (2) that of municipal law. Offenses under (1), i. e., acts unlawful by international law, are divided into two classes, (a) acts which the state is bound to prevent, and (b) acts which the state is not bound to prevent, and which therefore are not usually offenses against municipal law. The dealing in contraband belongs under (1) (b), for it is (1) unlawful by international law, as is shown by the fact that the noxious articles may be seized on the high seas and confiscated; but (b) it is not an act which it is the duty of the neutral state to prevent, and therefore is not usually prohibited by municipal law.

Why is the neutral state not bound to prevent it? Simply because, from obvious considerations of convenience, it has been deemed just to confine within reasonable bounds the duty of the neutral state to interfere with the commerce of its citizens, even for the purpose of repressing unneutral acts. The principal interest to be subserved being that of the belligerents, it is left to them, in respect of many acts in their nature unneutral, to adopt measures of self-protection; and neutral states are deemed to have discharged their full duty when they submit to the belligerent enforcement of such measures against their citizens and their commerce.

But, there is also a broad distinction between what a neutral government may permit its citizens to do and what it may do itself. This distinction was altogether lost sight of by Senator Matt. Carpenter, when, in discussing the sale of arms during the FrancoGerman war, he expressed the opinion that the Government of the United States might have freely sold arms to France without violating the duties of neutrality. Nothing should be clearer than that a neutral government is bound to abstain from doing any act whatsoever that is in its nature unneutral. It should seem obvious that a neutral government can not itself sell arms to a belligerent without a flagrant violation of neutrality any more than it can itself supply money to a belligerent without a breach of neutral duty. When France supplied arms and money to the United States in the early days of the American Revolution she showed her sense of the real nature of the transactions by conducting them indirectly through a fictitious commercial firm; and when, in February, 1778, she formally became the ally of the United States she merely avowed her real position. And yet no one now contends that Great Britain, France, and Germany failed in their duty when they omitted to prevent, their citizens from selling arms to the United States and purchasing the bonds of the United States in 1861-1865 and 1898, or that the United States failed in its duty when omitting to prevent its citizens from selling arms to Britons or Boers or from purchasing British consols during the Boer war, or that it has failed to perform its duty in similar respects during the Russo-Japanese war.

President Grant, in his neutrality proclamation of August 22, 1870, during the Franco-German war, expressly declared that "all per

might "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,'" subject to the risk of hostile capture on the high seas.

(2) BY GOVERNMENTS, INADMISSIBLE.

§ 1309.

In 1872 a question was raised in the United States Senate as to certain "sales of ordnance stores" which had been made by the Government of the United States during the fiscal year ending June 30, 1870, to persons who were said to be agents of the French Government. A committee was appointed to investigate the subject. The report of the committee was made by its chairman, Mr. Carpenter, on May 11, 1872. The report referred to the act of Congress of 1868 (15 Stat. 259), which authorized the sale by the Government of such