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"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.
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 GovernA 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
arms and military stores as were "unsuitable" for use. provision, so the report stated, large sales were made without preference to purchasers as to opportunities or conditions of purchase, except that persons were excluded from the opportunity to purchase who were suspected of being agents of France, which was then at war with Germany. The report took the ground, however, that as Congress had, by the act of 1868, directed the Secretary of War to dispose of the arms and stores in question, and as the Government was engaged in such sales prior to the war between France and Germany, it "had a right to continue the same during the war." The report stated that after certain sales to Remington & Sons had been agreed on, but before delivery, the Secretary of War received a telegram which led him to suspect that Remington & Sons might be purchasing as agents of the French Government, and that he then gave orders that no further sales should be made to them, although the sale already made was not repudiated and the articles were afterwards delivered. The committee, in conclusion, held: "(1) The Remingtons were not, in fact, agents of France during the time when sales were made to them; (2) if they were such agents, such fact was neither known nor suspected by our Government at the time the sales were made; and, (3) if they had been such agents, and if that fact had been known to our Government, or if, instead of sending agents, Louis Napoleon or Frederick William had personally appeared at the War Department, to purchase arms, it would have been lawful for us to sell to either of them, in pursuance of a national policy adopted by us prior to the commencement of hostilities."
Report of Mr. Carpenter, from Senate Committee on the Sale of Arms by the Ordnance Department, May 11, 1872, S. Rept. 183, 42 Cong. 2 sess.
See, also, H. Rept. 46, 42 Cong. 2 sess.
For reports of Sir Edward Thornton on this transaction, see 61 Br. &
See Calvo, Droit International, V. sec. 2774.
Hall, referring to the above transaction, says: "The vendor of munitions of war in large quantities during the existence of hostilities knows perfectly well that the purchaser must intend them for the use of one of the belligerents, and a neutral government is too strictly bound to hold aloof from the quarrel to be allowed to seek safety in the quibble that the precise destination of the articles bought has not been disclosed."
Perels, after stating the facts, remarks that they do not require
Snow expressed the hope that Mr. Carpenter's report "does not express the settled law of the United States upon this subject. It
confounds the rights and duties of a neutral state with those of the private citizens of a neutral state, which is a very different matter."
Hall, Int. Law (5th ed.), 598; Perels, Int. Seerecht, 251; Snow, Cases on Int. Law, 461.
See, also, Fiore, Droit International (2d ed. by Antoine, 1886), 1561.
3. BLOCKADE RUNNING.
"During the civil war in the United States large interests in England were concerned in movements for breaking the blockade in the Southern ports. The profits were enormous, and vast sums of money were spent and great skill and energy employed in taking advantage of the opportunity. Nassau, a port ordinarily without business, became the center of a large and active trade, and teemed with adventurers, speculators, and sailors engaged in fitting out and manning vessels to run into the blockaded ports. Many of these vessels were built in England and Scotland for this very end; large, deep, swift, painted in such a way as not to catch the eye, capable of carrying large freight, and manned with bold and skillful navigators. The Government of the United States addressed to the British Government protests against this system, organized and carried on in and through British ports and with British capital. But Earl Russell, in a letter of May 10, 1862, declared that fitting out vessels of this class was not in contravention either of British municipal law or of the law of nations. He likened the case in this respect to that of exportations of munitions of war, the exportation of which no state is required by international law to prohibit. A blockade runner, it is true, if proved to be such, can be seized with its cargo and confiscated, but the remedy is to be limited to this seizure. (Arch. Dipl., 1863, iv. 100.) This position was elaborately sustained by Mountague Bernard in his treatise on British neutrality, ch. xii. By Rolin-Jacquemyns (Revue de Droit International for 1871, 127-129) the position is accepted with some modifications, and only in subordination to the general rule that to impose on a neutral the duty of stopping the building and sailing of blockade runners would impose a new and onerous burden on neutrals, and give an undue advantage to belligerency over neutrality. (See Fauchille, Blocus Maritime, Paris, 1882, 391. See also Wharton on Contracts, § 479.)”
Wharton, Int. Law Digest, § 365, III. 409.
"A neutral state is not bound by the law of nations to impede or diminish its own trade by municipal restrictions. A neutral merchant may ship goods prohibited jure belli, and they may be rightfully seized and condemned. It is one of the cases where two
'conflicting rights' exist which either party may exercise without charging the other with doing wrong. As the transport is not prohibited by the laws of the neutral sovereign, his subjects may lawfully be concerned in it, and as the right of war lawfully authorizes a belligerent power to seize and condemn the goods, he may lawfully do it. Whatever is not prohibited by the positive law of a country is lawful. Although the law of nations is part of the municipal law of England, and it may be said that by that law contraband trade is prohibited to neutrals, and consequently unlawful, yet the law of nations does not declare the trade to be unlawful. It only authorizes the seizure of the contraband articles by the belligerent powers. (The Helen, 35 Law J. (N. s.) Adm. 2; compare with it the Santissima Trinidad, 7 Wheat. 283; Richardson. Marine Insurance Co., 6 Mass. 113; Seton and Others . Low, 1 Johns. R.; ex parte Chavasse, 34 Law J. (N. s.) Chanc. 17.)"
Halleck, Int. Law (3d ed., by Baker), II. 144, note.
4. LOANS OR CONTRIBUTIONS OF MONEY.
(1) BY PRIVATE PERSONS.
June 17, 1823, the law officers of the Crown advised the British Government that "subscriptions" by individuals of a neutral nation for the use of a belligerent state were inconsistent with neutrality and contrary to the law of nations, although they might not constitute a just ground of hostilities; but that "loans, if entered into merely with commercial views," would not be an infringement of neutrality, although if the "loan" was only a cover for a “gratuitous contribution," the transaction would constitute such an infringement. The law officers were then asked to give an opinion on the question whether individuals and corporations making "subscriptions” could be legally proceeded against in England. On the 21st of June the law officers reported that, reasoning upon general principles, the persons making such "subscriptions" would be subject to prosecution for a misdemeanor. The law officers added, however, that subscriptions of a similar nature had formerly been made, particularly in favor of the people of Poland in 1792 and 1793, without any notice having been taken of them by the public authorities of the country and apparently without complaint by any of the powers, and that they could find no instance of a prosecution in such a case, or even of a hint of such a proceeding in any period of English history. They concluded, therefore, that it was not likely that a prosecution against the individuals concerned in such a transaction would be suc