the principal countries of the world, Germany, AustroHungary, 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. (See Convention V, Art 7, and Convention XIII, Art. 7.)

§ 5. ATTEMPTS TO EVADE THE LAW IN THE WORLD 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 was yet urged during the late war 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 petition for an embargo was 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 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 practically 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 were made on the part of the Central Powers against the right of neutrals to trade in contraband goods, and especially in munitions of war. Such a protest, of course, when it was made, came from a belligerent who was prompted, not by high moral considerations, but solely by motives of self-interest. He hoped 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 available to either belligerent; and so long as each has an equal liberty 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, may have 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 belligerent right of intercepting the transportation of munitions. Such a nation may, therefore, claim that its enemy, which has been inadequately furnished with war material and especially with those munitions necessary to equip an army, should be prevented 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 really belongs to himself alone, he would impose upon a neutral Power the obligation of exercising this belligerent right and of performing this belligerent act. 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 late war 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 American Secretary of State. 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 German 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 fact that the supply is one-sided, being furnished only to the enemies of Germany. The note, however, makes no mention of the fact that the law, which is admitted to be still in force, contains no discrimination as to the amount of munitions that may properly be furnished to any belligerent; nor does it take notice of the important fact that the one-sidedness of the supply is due to no act or fault on the part of the United States, but is due solely to a vicissitude of war.

The reply to this note is over the signature of W. J. Bryan, then the Secretary of State. In it the Secretary expresses the opinion that this government, in view of the present indisputable doctrines of accepted international law, would regard the course suggested by the German Embassy as "an unjustifiable de

parture from the principle of strict neutrality, by which it has consistently sought to direct its actions"; and he respectfully submits that none of the circumstances urged in his excellency's memorandum alters the principle involved. To Mr. Bryan and his advisers is due the credit of adhering to the traditional view of the United States upon the matter in hand.

The second note of protest was issued by the Austro-Hungarian Minister for Foreign Affairs (June 29, 1915) and was directed to United States Ambassador Penfield, at Vienna. It practically concedes that the sale of munitions of war is strictly in conformity with the provisions of the Hague conventions; but states the case of Austria-Hungary as follows: "Although the Imperial and Royal Government is absolutely convinced that the attitude of the Federal Government [meaning the United States] emanates from no other intention than to maintain the strictest neutrality and to conform to the letter of the provisions of international treaties, nevertheless, the question arises whether the conditions as they have developed during the course of the war are not such as in effect to thwart the intentions of the Washington cabinet . . . and whether it would not seem possible, even imperative, that measures be adopted to maintain an attitude of strict parity with respect to both belligerent parties. In reply to possible objections that, notwithstanding the willingness of American industry to furnish merchandise to AustriaHungary and Germany, it is not possible for the United States of America to trade with AustriaHungary and Germany, it may be pointed out that the Federal Government is undoubtedly in a position to improve the situation described."