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intent to justify the maintenance of the custom. With reference to this matter, Mr. Hall has this to say:
An act of the state which is prejudicial to the belligerent is necessarily done with the intent to injure; but the commercial act of the individual only affects the belligerent accidentally. It is not directed against him; it is done in the way of business, with the object of business profit, and however injurious in its consequences, it is not instigated by that wish to do harm which is the essence of hostility. It is prevented because it is inconvenient, not because it is wrong; and to allow the performance by a subject, of an act not in itself improper, cannot constitute a crime on the part of the neutral state to which he belongs. 29
This explanation, based upon a difference of intent, may not perhaps seem entirely satisfactory to one who believes that the furnishing of munitions of war by a neutral individual may operate just as injuriously to a belligerent as though they were furnished directly by a neutral state. The effect of the act in both cases may be the same, an injury to the belligerent state. It seems more reasonable to suppose that the distinction was originally due to the instinctive disposition on the part of the offended state to hold immediately responsible the very party who was guilty of the offensive act. In the one case, the act is considered as a public offense, and the sovereign state is held immediately responsible. In the other case, the act is considered as a private offense, and the private person committing the act is held directly liable. In either case, therefore, the offending party-whether it be a neutral state or a neutral individual-is brought face to face with the offended belligerent, and is made directly responsible to him alone for the offense committed. In both cases, the law and international usage have provided a direct and appropriate remedy for the injurious act. In case the act is committed by a neutral state, the law has given to the belligerent the right to hold the neutral government directly responsible for the injury done. In case the act is committed by a neutral individual, it has given the belligerent the right of visitation and search and the right of confiscating contraband goods on the judgment of its own admiralty courts.
The continued maintenance of this distinction is no doubt due to the fact that, while primarly based upon the early practice of nations, it
29 Hall, Int. Law, 4th ed., p. 80.
has been found to be the most expedient way of reconciling the belligerent right to control the methods of warfare and the neutral right to preserve the freedom of commerce. It seems evident that the provisions of international law relating to the transportation and sale of contraband goods, including munitions of war, are in harmony with both expediency and equity. The law, as it exists, confers upon the belligerent state, the party most interested in preventing such acts, the means to prevent them; and it relieves the neutral state, the party least interested in preventing such acts, from the obligation to prevent them. It, furthermore, relieves the neutral state from the difficulty, not to say impossibility, of establishing such a universal system of espionage over its own subjects as shall make their commercial transactions conform solely to the interests of warring Powers. Lord Brougham once aptly said:
No Power can exercise such an effective control over the actions of each of its subjects as to prevent them from yielding to the temptations of gain at a distance from its territory. No Power can, therefore, be effectually responsible for the conduct of all its subjects on the high seas; and it has been found more convenient to entrust the party injured by such aggression with the power of checking them. This arrangement seems beneficial to all parties, for it answers the chief end of the law of nations.30
In spite of the fact that this doctrine conforms to the early practice of European nations, at least as far back as the seventeenth century, and of the fact that it was accepted by the great publicists of the eighteenth century, and also of the fact that it has uniformly been adhered to by the United States during the whole course of its history, and in spite of the further fact that it has been found to be the only expedient way of reconciling the inevitable conflict between belligerent and neutral rights in time of war, there may yet remain a doubt in some minds whether it is still recognized as a part of the law of nations. This doubt should, once for all, be dispelled by reference to the conventions of the Second Hague Conference of 1907. These conventions, so far as they have received the approval of the signatory Powers, must be regarded as the latest and most authoritative statement of the law of nations. In
30 Lord Brougham's Works, Ed. 1857, VIII, p. 386; quoted in Hall's Int. Law, 4th ed., p. 80, note.
two separate conventions there is an express declaration with regard to the duty of a neutral Power in respect to the exportation of munitions of war. In the fifth convention, entitled the Rights and Duties of Neutral Powers and Persons in War on Land, occur these words:
A Neutral Power is not bound to prevent the export or transit, on behalf of one or the other of the belligerents, of arms, munitions of war, or, generally, of anything which can be of use to an army or fleet.
Also, in the thirteenth convention, entitled the Rights and Duties of Neutral Powers in Maritime War, occurs the same statement in identical language.31 These conventions, signed by the principal countries of the world, Germany, Austria-Hungary, France, Great Britain, Italy, Japan, Turkey and the United States, express a concurrent opinion as to what constitutes the law of nations in respect to the sale of munitions by neutrals in time of war.
Since the rules of international law are clear and explicit upon this subject, the laying of an embargo upon the sale of munitions of war is sought to be justified upon moral grounds. Notwithstanding the undoubted legal right on the part of a neutral Power to permit the sale of munitions; and notwithstanding the absence of any legal right on the part of a belligerent to demand of a neutral Power to prohibit such sale, it may be yet urged that circumstances may arise in the progress of a war when the continued sale of munitions may work injustice to one or the other of the belligerent parties. In other words, to quote the language of a United States Senator (when the monster petition for an embargo was recently presented to Congress): "It may be all right," he says, "to sell these things according to international law but it is against the moral law." To shift a question of this kind from the domain of law to the domain of morals, opens a wide field for a difference of opinion as to what constitutes a moral international right. It assumes that there exists somewhere some common and accepted standard of
31 Convention, V, Art. 7, and Convention XIII, Art. 7,-both signed at The Hague, Oct. 18, 1907. See Pamphlets Nos. 13, 20, Division of International Law, Carnegie Endowment for International Peace; also, James Brown Scott, Texts of the Peace Conferences at The Hague, 1899, 1907. The above named articles are reprinted in Hershey's Essentials, pp. 459, 467; also in Wilson and Tucker's Int. Law, 5th ed., pp. 421, 445.
conduct by which the moral relations of nations may be finally determined. As a matter of fact, so far as any such common standard of conduct may be said to exist, it is already embodied in the law. The law represents the common sense of justice, in so far as the various ideas of a community of persons or of nations have been capable of being put into a definite and corporate expression. The so-called appeal from law to morals may, therefore, mean simply an appeal from a definite and ascertainable body of rules, which represents the organized judgment of a community, to a standard which may be as shifting as the opinions of individuals.
It is true that official protests have sometimes been made on the part of belligerent Powers against the right of neutrals to trade in contraband goods, and especially in munitions of war.32 Such a protest, of course, comes from a belligerent who is prompted, not by high moral considerations, but solely by motives of self-interest. He hopes by his protest to obtain some military advantage for himself, or to deprive his adversary of some military advantage. The sale of munitions, it is admitted, is legally open to both belligerents; and as long as each has an equal opportunity to purchase, there need be no occasion for complaint. But if one belligerent, by an act of his enemy or other vicissitude of war, finds himself cut off from access to the sea, while his adversary still retains it, he would endeavor to equalize the war situation by seeking to stop all further supply of munitions to his adversary. And, besides this, he would seek to restore himself from a misfortune of war by an appeal to a neutral Power which is in no way responsible for his misfortune. For example, a nation in expectation of a coming war and in preparation for it, has been for many years providing itself with abundant supplies of arms, munitions and other war material, with the intention of surprising its enemy while unprepared for the conflict. It may, perchance, find itself, in the progress of the war, perhaps on account of the superior naval force of its enemy, shut up from ready access to the sea, and estopped from exercising its authorized bellig
32 "Official protests by belligerent governments against the right of neutral individuals to trade in contraband are heard during nearly every war. This view is also championed by a small band of publicists, notably by Hautefeuille, Phillimore, and Kleen. It is without sanction, either in theory or practice."-Hershey, Essentials, p. 459, note 7.
erent right of intercepting the transportation of munitions. It, therefore, claims that its enemy, which has been inadequately furnished with war material and especially with those munitions necessary to equip an army, should be estopped from exercising its authorized legal right of supplying itself with further munitions.
Such a claim would evidently be based upon the benefit the belligerent hoped to receive by depriving his enemy of the means of defending himself. But this is not all. The right of intercepting the transportation of munitions of war is by law a belligerent right; and the exercise of this right is by law a belligerent act. Being now prevented himself, by a sheer misfortune of war from exercising his own belligerent right and from performing a belligerent act which belongs to himself alone, he would impose upon a neutral Power the obligation of exercising this belligerent right and of performing this belligerent act. He would thus seek to convert a neutral into an ally. Strictly speaking, the voluntary assumption on the part of a neutral state, in the interests of a belligerent Power, of the task of preventing the legalized traffic in munitions of war, cannot be looked upon in any other light than as a belligerent, or at least an unneutral, act. On the other hand, a protest on the part of a belligerent Power, which seeks to compensate itself for a misfortune of war by demanding the services and intervention of a neutral state, has, in fact, no justification in law or in morals.
The present war has furnished at least two instances of such a protest or appeal delivered to the United States by the Central Powers. The first was contained in a note issued from the German Embassy at Washington, April 4, 1915, and directed to the Secretary of State.33 Without openly questioning the ordinary application of the rules of international law in permitting the exportation of munitions on the part of neutrals in time of war, the note asserts that on account of existing circumstances, "the conception of neutrality," to quote its words, "is given a new import, independently of the formal question of hitherto existing law." The circumstances to which the note refers are, first, the unusual supply of munitions which is being furnished; and, secondly, the
33 The German Ambassador to the Secretary of State, April 4, 1915,-transmits memorandum regarding the matter of German-American trade and the question of delivery of arms. See Special Supplement to this Journal, July, 1915, pp. 125–127.