in answer to the complaints of the British minister that French agents were buying arms in the United States; it was asserted in 1796 by Mr. Pickering, in answer to complaints of the French government,2 by Mr. Marcy in 1855, during the Crimean war, in answer to complaints of the British government; by Mr. Seward in 1862, in answer to complaints of Mexico; by Mr. Bayard in 1885, in answer to complaints of Colombia; by Mr. Blaine in 1891, in answer to complaints of Chile;" by Mr. Olney in 1896, in answer to complaints of Spain; and on many other occasions. Art. 7 of the Convention relating to the Rights and Duties of Neutral Powers in Maritime War adopted at The Hague in 1907 embodied an international agreement to the same effect,8 and thus the doctrine consistently asserted by the United States took its place as a definitely recognized rule of international law.

But while a neutral state is under no obligation from the standpoint Circumstances warranting an of international law to prevent commerce in contraband from being exception carried on by its citizens, it would be unquestionably a friendly act to to the rule. prohibit such commerce, especially in arms and munitions of war, in certain cases of domestic insurrection where the loss to neutral trade would be insignificant in comparison with the injury which such commerce might cause to the government against which the insurgents are in rebellion. An instance of such action is furnished by the conduct of the United States during the rebellion in Mexico in 1912. In this instance, however, it may well be thought that the action taken by the United States was based upon a desire to prevent the continuance of a trade which practically made the territory of the United States, at many points along the frontier, a base of naval supplies for the insurgent forces; and while the international law of neutrality did not apply to the situation, owing to the fact that Mexico had not declared the existence of a state of war, it devolved upon the United States, as being at peace with Mexico, to forbid a commerce in contraband which directly tended to further revolt in that country.

Just as citizens of a neutral state are free to engage in contraband

1See Am. State Papers, For. Rel., I, 147. Moore, Int. Law Digest, VII, 955.
2Am. State Papers, For. Rel., I, 646. Moore, VII, 955.
Brit. and For. State Papers, XLVII, 424. Moore, VII, 957.
*Moore, VII, 958.

S"A neutral power is not bound to prevent the export or transit, on behalf of either belligerent, of arms, munitions of war, or, in general, of anything which could be of use to an army or fleet."

'See above, p. 58.

Belligerent trade in neutral ports.

commerce with a belligerent, subject merely to the penalty of capture
and confiscation of their goods by the other belligerent, so they are
free to sell their goods in their own ports to merchant vessels of a
belligerent state without restriction. Arms, ammunition and equip-
ments of war of every kind may be furnished to such vessels as well
as the ordinary objects of trade in time of peace. But while, as a gen-
eral rule, international law has never required neutral states to forbid
belligerent merchant vessels access to their ports, it may be questioned
whether an exception to this rule should not be allowed when belliger-
ent merchant vessels carry on in a neutral port such an extensive com-
merce in articles of war as to constitute the neutral port a base of mili-
tary supplies. In principle, it would seem that the scale upon which
such trade in neutral ports is carried on should not affect its character,
that is to say, should not stamp it as being in violation of the duties
of the neutral state. On the other hand, as a practical question, it is
evident that if a belligerent is allowed to carry on in neutral ports a
systematic and wholesale trade in supplies of war, he will possess a
sensible advantage over his enemy who may not be in a position to
make use of neutral ports, or he will be able to continue a war which
his own slender domestic resources would compel him to abandon.
In the Case of the United States as presented to the Tribunal of Arbi-
tration at Geneva, the point was made that "while it is not maintained
that belligerents may infringe upon the rights which neutrals have to
manufacture and deal in such military supplies in the ordinary course
of commerce, it is asserted with confidence that a neutral ought not to
permit a belligerent to use the neutral soil as the main, if not the only
base of its military supplies.
The United States confidently
submits to the Tribunal of Arbitration that it is an abuse of a sound
principle to extend to such combined transactions as those of Huse,
Heyliger, Walker, and Fraser Trenholm & Co., the well-settled right
of a neutral to manufacture and sell to either belligerent, during a
war, arms, munitions, and military supplies."1

Whatever the justice of the contention of the United States in the individual instance just quoted, it would be very difficult to make it the basis of a standard of neutral obligation either capable of formulation as a principle or of application as a practical rule. Such a standard would impose upon the neutral state the necessity of determining whether under the circumstances one belligerent was being favored at the expense of the other, whether the commerce in contraband had reached the point of being wholesale in amount, and other similar 1Papers Relating to the Treaty of Washington, I, 125-126.

questions to which no fixed rule could be applied. Accordingly, while circumstances may arise calling for action on the part of a neutral state to restrict the purchase by belligerents of military supplies in its ports, it is neither necessary nor practicable to enact any permanent law on the subject.

A different case is presented when a belligerent war vessel comes Supplies to war into a neutral port for the purchase of military or other supplies. The vessels limited. furnishing of such supplies by the citizens of a neutral state would be directly subservient to the purposes of aggressive action inasmuch as it would put the belligerent in a position to continue hostilities immediately. Accordingly, belligerent war vessels are denied at the present day the privilege of freely purchasing supplies in neutral ports, and neutral citizens should be prosecuted for selling or delivering supplies to them.1

A further exception to the rule that a neutral state is under no obligation to prevent commerce in contraband on the part of its citizens is to be found in the special treatment accorded to ships which have been armed for warlike uses or are suitable for use in time of war. While on the one hand it would seem that a vessel built and equipped for warlike uses should, by its nature, belong to the class of munitions of war which may be freely sold by the citizens of a neutral state to a belligerent, whether within the neutral port, or on the high seas, or in a port of the belligerent, on the other hand it is clear that a warship built by a neutral citizen and delivered to a belligerent within or without neutral territory is an instrument of war so powerful and so complete as to practically amount to an armed expedition organized in the neutral port. What, then, is the obligation of a neutral state to prevent its citizens from selling war-ships to a belligerent as distinct from the other objects which constitute contraband of war? The question has been one of long standing controversy and it cannot be said that the law on the subject is as yet settled. Its great importance requires that it be treated somewhat in detail.

Armed ships excepted from rule of commerce in contraband.

It will be noted at the outset that there are several distinct aspects Distinctions to be of the question. First, there is the case of a war-ship which is built observed

by a neutral citizen to the order of a belligerent under a definite contract. In this case the builder is presumably aware of the ultimate purpose to which the vessel will be put, although he may have no special interest in it himself. Secondly, there is the case of a war-ship, not built to order as above, which is sold to a belligerent or to his agents in a neutral port. In this case the seller is likewise presumably aware

1This subject is treated of in detail under a subsequent heading, see pp. 143-146.

Purpose of Act of 1794.

of the ultimate purposes for which the vessel is intended, although here again he may have no special interest in them. Whether a war-ship so purchased should be allowed to leave the neutral port commissioned and sufficiently manned to be able to commence hostilities immediately, is another question; for to permit the departure of an armed naval expedition would evidently be as much in contravention of the duties of neutrality as to permit the departure of a military expedition by land. Thirdly, there is the case of a war-ship, not built to order, which is taken by a neutral citizen to a belligerent port and there sold to the belligerent. In this case the vessel undertakes its voyage to the belligerent port subject to the risk of capture and confiscation by the other belligerent as contraband. Fourthly, in each of the above cases the vessel, although primarily built for use in war, may at the time of the sale be in fact unarmed, so that while readily adaptable for belligerent purposes, it may not be actually able to commit hostilities at the time of leaving the neutral port. Fifthly, there is the case of vessels built primarily for commercial purposes, but which, by the addition of a small armament, may be converted into light-armed cruisers. This was the type of vessels which were more often used in privateering and which were, in consequence, the ones generally referred to in the opinions given with regard to the right to sell armed vessels. It is unfortunate that, in the discussion which has taken place with respect to the right of neutral citizens to sell armed vessels among other articles which are contraband of war, the distinction between the several kinds of armed vessels and the various conditions under which the sale may take place has often been overlooked.

Let us first consider the provisions of the Neutrality Act which bear upon the question. It will be remembered that Sec. 3 of the original Neutrality Act of 17941 prohibited the fitting out and arming of vessels within the ports of the United States with intent that such vessels should be used in the service of a foreign state to commit hostilities against a state with which the United States were at peace. Apart from historical evidence to the same effect, the wording of the section alone would indicate that the prohibition was directed against the practice of privateering so common at that time. The expression "with intent that such vessel shall be used in the service of" has reference to a deliberate design on the part of the person fitting out and arming the vessel. "Intent" in criminal law is ordinarily interpreted to include some measure of malevolent will on the part of a person engaged in the execution of a specific criminal act. A mere transaction 1See Chap. II, p. 26.

of bargain and sale, in which the seller has no other interest than that of profit from the article manufactured, cannot be said to imply an intent on the part of the seller that the article shall be used for the commission of definite acts of hostility, merely because he knew in making it that it was adapted to uses of that general kind. Accordingly, it would seem that the sale of an armed vessel to a belligerent in a port of the United States could not properly have been held to subject the vendor to prosecution for violation of the Neutrality Act. That the act of building to order a vessel, which it is known that the purchasing belligerent will use to commit hostilities against a friendly. state, would have been considered as coming within Sec. 3 of the statute, is not certain. Strictly speaking, the "intent" of a person who is building a vessel to order is merely to produce a vessel which will satisfy the requirements of the contract, and a mere knowledge of the use to which the vessel will be put is not sufficient to constitute an intent on his part that it shall be so used.1 But while it might not have been possible to convict a person who was merely acting as the commercial agent of a belligerent, it is clear that, as regards the belligerent himself, the construction and fitting out of a vessel in a port of the United States, through the act of an agent, would very properly have been regarded as a violation of the neutrality of the United States by inference from the terms of Sec. 4 of the Act of 1794, which makes it unlawful for any person to increase or augment within the jurisdiction of the United States the force of a ship of war in the service of a belligerent.2

It is not asserted that the prohibition of the sale of an armed ves- Privateering the sel to a belligerent in a neutral port should not properly have been object in view. included in the Neutrality Act of 1794, but merely that it was not so included or intended to be included. Unquestionably the sale of an armed vessel to a belligerent in a neutral port, even though the vessel should leave the port not in a condition to commence hostilities immediately, might be a far greater measure of assistance to a belligerent than the augmenting and increasing of the force of one of his ships of war, which is forbidden by Sec. 4 of the Act of 1794. But that argument was not urged upon the framers of the Act of 1794, who had before them the practical question of preventing privateering and were not concerned with abstract questions. Why should a belligerent have bought vessels in neutral ports when there were always to be

1The doctrine of "constructive intent" would not seem to apply to an act not per se criminal.

2See Chap. II, p. 27; App., p. 173.