and condemnation on her return voyage, together with her cargo, though the cargo was innocent.

The Lucy (1901), 37 Ct. Cl. 97. The court said: "The liability to confiscation attended the entire voyage; that is to say, from the home port back to the home port, and to the cargo on the return voyage, though it might be innocent. There can be no doubt but that such was the recognized law of nations at the close of the eighteenth century. (The Joseph, 8 Cranch, 451-454; Carrington v. Merchants' Insurance Co., 8 Pet. 494-520.)"

"Regarding the trade in arms and ammunition and other contraband objects, the Government of the King, looking to the strict observance of the duties prescribed by neutrality, does not intervene either to protect or prohibit it. No law prohibiting the exportation of these products of national industry, the trade in question is carried on freely in the country, but outside the territory at the risks and perils of those who carry it on. If Belgian merchandise of this kind, or vessels transporting it flying the national flag, were stopped and seized on the high seas by the cruisers of one of the belligerents, the intervention of the Government would be confined to seeing that the laws of war and the regulations of the procedure before the prize courts were strictly applied to all parties interested."

M. de Favereau, Belgian min. of for. aff., to Mr. Storer, min. to Belgium, Sept. 6, 1898, enclosed by Mr. Storer with dispatch No. 140, Sept. 14, 1898, MSS. Dept. of State.

In February, 1865, a British subject shipped from Liverpool to his agent in Buenos Ayres a quantity of rifles, with a view to their sale in Paraguay. After the arrival of the goods at Buenos Ayres such a sale was negotiated, and the rifles were shipped from Buenos Ayres on April 8, 1865, for Corrientes, Argentine Republic, where they were to be transshipped for Paraguay. On April 14 war broke out between the Argentine Republic and Paraguay, and the steamer on which the rifles were transported was stopped by the governor of Corrientes, who took out the rifles and placed them at the disposal of the Argentine Government. The owner subsequently presented a claim for the value of the rifles, as well as for an indemnity of about a fourth of their value for their detention for eighteen months. Their value he estimated by the price which they would have fetched in Paraguay. A suit was brought in the federal court at Buenos Ayres, which held that the rifles could not be lawfully confiscated, and that they should be returned to the owner or that a just equivalent should be paid to him or his representative. From this decision the Argentine Government appealed to the supreme court, which decided that, as the arms were shipped by the owner before the declaration of war, they were not subject to confiscation; that their taking

by the Argentine Republic was to be considered as an act of expropriation for public use, and not as an act of preemption under the law of nations; that, according to the law of expropriation the price to be paid was what the goods were worth in place where they were taken; and that, as the Government had in detaining the arms exercised a legitimate right, from which no obligation to pay indemnity could arise, the Government should pay only the current rate of interest on the value of the arms from the date of their expropriation.

Mr. Buchanan, min. to the Argentine Republic, to Mr. Hay, Sec. of State, No. 584, Dec. 1, 1898, enclosing a report of Mr. François S. Jones, sec. of legation, citing Fallos de la Suprema Corte, 1869, IV. 245–246.

A citizen of a neutral state who, for hire, serves on a neutral ship employed in contraband commerce with a belligerent power, is not punishable personally, according to the law of nations, though taken in the act by that belligerent nation to whose detriment the trade would operate.

Lee, At. Gen., 1796, 1 Op. 61.

The rule" that a vessel on a return voyage is liable to capture by the circumstances of her having on the outward voyage conveyed contraband articles to an enemy's port" is an intrepolation in the law of nations.

Mr. Madison, Sec. of State, report of Jan. 25, 1806, 15 MS. Dom. Let. 70.

The transportation of contraband, though an unneutral service, is "criminal" act.

not a

1 Kent's Comm. 142, approved by Lord Westbury, in Ex parte Chavasse, 11 Jur. N. S., pt. 1, 400. See, also, 11 Op. At. Gen. 408, 451; The Helen, L. R. 1 Adm. & Eccles. 1.

Much misapprehension as to the quality of the act of supplying contraband articles, such as arms and munitions of war, to the parties to an armed conflict, has arisen from the statement so often made that the trade in contraband is lawful and not prohibited. This statement, when used with reference to the preventive duties of neutral governments, is quite correct, but if applied to the duties of individuals it is quite incorrect. The acts which individuals are forbidden to commit and the acts which neutral governments are obliged to prevent are by no means the same; precisely as the acts which the neutral government is obliged to prevent and the acts which it is forbidden to commit are by no means the same. The supply of materials of war, such as arms and ammunition, to either party to an armed conflict, although neutral governments are not obliged to

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.

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." a

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

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 nonrecognition 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. 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.

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." d

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

66

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

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

Proclamations and Decrees during the War with Spain, 13.

d Proclamations, 31, 35.