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Roman Catholic Church. Many sincere and devoted subjects of His Britannic Majesty are equally sincere and devoted Catholics, and there seems to be no reason why a step should not be taken which would give them very great pleasure and which at the same time would tend to create a friendly feeling on the part of the Pope for Great Britain and its aspirations at the present time. In a material world we are overinclined to underestimate the force of spiritual power and of spiritual agencies. The Pope in times past played a great rôle in international affairs, but the claim of the superiority of his state as a temporal sovereign interfered, it is believed, with his spiritual influence. Since, however, the loss of the temporal power—for it is believed that the temporal power was lost in fact, if not in theory, by the annexation of the Papal States by Italy in 1870—the spiritual power of the Pope stands out in broad relief untrammeled and unspotted by temporal connections, and there is reason to believe that the Pope as the spiritual head of the Church can exercise a greater and a more beneficent influence in the world at large in the future than in the past. A high-minded and a spiritual Pope can properly appeal to Catholics in all countries who accept his spiritual headship, and it is not beyond the bounds of reason to hope that through his intervention and guidance his fellow believers may be led, however slowly, to accept that standard of conduct which substitutes spirituality for materialism and which prefers settlements of international disputes according to law and justice to the settlement of disputes by the brutal arbitrament of the sword. For these and other reasons which might be mentioned it is believed that the appointment of Sir Henry Howard as special envoy to the Vatican is an international event of no mean importance.
IN MEMORIAM-GUIDO FUSINATO
In the death on September 28, 1914 of Guido Fusinato, international law has lost a competent writer and investigator, and international organization one of its most intelligent, enlightened, and enthusiastic partisans. It is common knowledge that people interested in international organization are not usually experts in international law or persons having had actual experience in the conduct of international affairs, and it too often happens that the expert, seeing the slowness and difficulty of getting governments to move, loses his enthusiasm if he does not end by
believing that international organization is impossible. Fusinato did not belong to this class, and he rendered genuine services to the cause of international peace through the development of international law.
Within his short life many changes have taken place in the country of which he was a distinguished citizen and government official. At the time of his birth in 1860, Venice, the city in which he was born, belonged to Austria, and if he took no part in making a united Italy, he contributed in a marked degree to the respect which Italy is held in international relations, and he represented it worthily at international conferences and as arbiter in cases tried and decided by the Permanent Court of Arbitration at The Hague.
Educated in Germany, he taught international law for a number of years and distinguished himself, both as a teacher and as a writer, in the field of international law. His doctor's dissertation, entitled "Dei feziali e del Diritto Feziale," is today the standard treatise on the subject, although his views on the nature and functions of the feciale in the domestic and international relations of Rome are best known to writers by his short article entitled “Le Droit International de la République Romaine." I A second work by which he is favorably known in international law is bis treatise on territorial alterations entitled Mutazioni territoriali. From time to time he contributed articles to the journals of international law on subjects in which he took a special interest. His academic and literary activities were seriously interfered with by his interest and participation in the politics of his country. He entered the Chamber of Deputies in 1892, and was a member of it at the time of his death. He has been Under-Secretary of State for Foreign Affairs and was at one time Minister of Public Instruction. The delicate state of his health, it is understood, prevented him from accepting other portfolios in the cabinet.
He was a firm believer in the efficacy of international arbitration, and on more than one occasion he was entrusted by his government with the negotiation of treaties of arbitration, and during the sessions of the Second Hague Peace Conference he negotiated treaties of arbitration between Italy, on the one hand, and Argentina and Mexico on the other. He was the Italian representative in the negotiations at Lausanne which put an end to the war between Turkey and Italy. He was a delegate to the Second Hague Peace Conference and rendered distinguished and brilliant service to the cause of arbitration, in which, as has been said, he was especially interested, and was chairman of a committee of the 1 Published in the Revue de droit international et de législation comparée, Vol. 17, p. 278. first commission to revise the rules of arbitral procedure. Many improvements of the Convention of 1899 were due to his suggestions. In 1908-9 he represented Italy in the London Naval Conference.
As far back as 1893 he assisted the Marquis Visconti-Venosta in the Bering Sea arbitration, and he served as arbiter in the arbitration between France and Germany, known as the Casa Blanca case, in 1908; in 1912 he was likewise arbiter in the Canevaro dispute between Italy and Peru, and more recently, in 1913, he acted as arbiter in the cases of the Carthage, the Manouba and the Tavignano, decided by tribunals of the Permanent Court of The Hague.
For many years Mr. Fusinato was a member of the Institute of International Law. He was likewise a member of the curatorium of the Academy of International Law recently founded at The Hague, and which would have been opened in October of the past year if war had not unfortunately broken out in Europe.
It is difficult for the writer of this brief notice, associated as he was with Mr. Fusinato on many occasions, to refrain from a word of personal and affectionate regard. It is perhaps best, however, to voice only the regret of publicists generally at the loss of one whose services had already reflected distinction upon his country, and from whom even greater services were reasonably to have been expected.
CONTRABAND OF WAR
In a circular issued by the Department of State on October 15, 1914, the question of neutrality and trade in contraband is dealt with for the benefit of the public. The circular points out the difference between the sale by individuals and the sale by a neutral government to a belligerent, correctly stating that "generally speaking, a citizen of the United States can sell to a belligerent government, or its agent, any article of commerce which he pleases, whereas the sale by the United States would be an unneutral act." It then states that "a neutral government is not compelled by international law, by treaty, or by statute, to prevent” the sale of articles exclusively used for warlike purposes, such as arms, explosives, etc., or food-stuffs, clothing, etc., which may be used either by the non-combatants or by the armies in the field, but attention is called to the fact that articles of this kind “are considered contraband and are, outside the territorial jurisdiction of the neutral nation, subject
1 The circular is printed in full in the SUPPLEMENT, page 124.
the be ; in and the the
to seizure by an enemy of the purchasing government. An exception
While these passages are correct as far as they go, they require a
It is usual to divide contraband into three classes. This was very briefly and skilfully done in the leading case of the Peterhof (5 Wallace 28), decided by the Supreme Court in 1866. Speaking for the Court, Chief Justice Chase said:
the ady err
The classification of goods as contraband or not contraband has much perplexed text writers and jurists. A strictly accurate and satisfactory classification is perhaps impracticable; but that which is best supported by American and English decisions may be said to divide all merchandise into three classes. Of these classes, the first consists of articles manufactured and primarily and ordinarily used for military purposes in time of war; the second, of articles which may be and are used for purposes of war or peace, according to circumstances; and the third, of articles exclusively used for peaceful purposes. Merchandise of the first class, destined to a belligerent country or places occupied by the army or navy of a belligerent, is always contraband; merchandise of the second class is contraband only when actually destined to the military or naval use of a belligerent; while merchandise of the third class is not contraband at all, though liable to seizure and condemnation for violation of blockade.
The desire of the neutral is to continue its trade as far as possible uninterrupted by the war. It is the aim of the belligerent to prevent trade of all kinds from reaching the enemy, as supplies received from the outside tend to, and often do, prolong the war. The neutral, therefore, tries to restrict the list of contraband within the narrowest limits, whereas the belligerent seeks to enlarge the list. Hence, disputes ordinarily arise between neutrals and belligerents, even although both claim to be acting in good faith.
The first class specified by the Chief Justice constitutes what is called absolute contraband; the second is generally termed conditional contraband. Articles of absolute contraband are presumed to be meant for the enemy forces if they are destined to the enemy country, because, as they can only be used for a hostile purpose, it is supposed that they are in reality meant for the armed and naval forces of the enemy. Articles of conditional contraband, that is to say articles which may be
used for a peaceable purpose as well as for a warlike purpose, are not presumed to be meant for the enemy by the mere fact that they are destined to the enemy country. Something more is required, and to make them contraband and subject to seizure it is necessary that they be destined not merely for the enemy country but to the armed forces, whether military or naval, to a port of naval or military equipment, to the enemy government, or to a person or persons properly to be considered as the agent of the government. They are contraband or not contraband, conditioned upon specific destination; hence the name.
It is believed, however, that the time-honored distinction drawn between the two classes is more specious than real, for at the present day articles useful to the army or navy may, if landed at an ordinary port, be easily and speedily transported by railroads to the army and navy. This was not the case when the distinction was pointed out by Grotius in his treatise on rights and duties in war and peace, published in 1625. It is, however, today a fact, and international law, to be adequate, must take note of facts.
Again, in a war in which the nation is in arms, where every ablebodied man is under arms and is performing military duty, and where the non-combatant population is organized so as to support the soldiers in the field, it seems likely that belligerents will be inclined to consider destination to the enemy country as sufficient, even in the case of conditional contraband, especially if the government of the enemy possesses and exercises the right of confiscating or appropriating to naval or military uses the property of its citizens or subjects of service to the armies in the field.
It is true, as pointed out in the circular, that the neutral subject or citizen is free to trade in articles of contraband, but this freedom is to be understood in the sense that trade in contraband is not prohibited by municipal law. It is not meant that such trade is absolutely free under international law, otherwise the belligerent would not have the right to intercept and to confiscate the articles of contraband before they reach their destination. The meaning is--and it is so stated in the circularthat the neutral government is not obliged to prevent its citizens or subjects from trading, but that it is the enemy's duty to prevent the articles reaching their destination. “If the enemy of the purchasing nation happens for the time to be unable to do this, that is for him one of the misfortunes of war; the inability, however, imposes on the neutral gove ernment no obligation to prevent the sale.” In view of this fact it is