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enemies, by controlling the seas, can obtain these supplies, whereas Germany and its two allies cannot obtain these supplies because of the lack of control of the seas. It is held to be incumbent upon the United States, therefore, to forbid the sale and transportation of contraband to the Allies because, in view of the actual conditions, these supplies can only reach one, not both, of the belligerent countries.

The question really is not whether supplies reach one or the other belligerent, but whether the belligerents can purchase arms and ammunition or other contraband within the United States. American markets are open to the world. American merchants sell freely to the highest bidder. The fact that Germany and its allies cannot avail themselves, under present circumstances, of the American market, whereas the enemies of Germany can, may be the misfortune of Germany and its allies, on the one hand, and the good fortune of Germany's enemies, on the other hand. The mastery of the high seas during the present war is the affair of the belligerents, not of the United States.

The United States, in opening its markets to the world, in time of war as well as in time of peace, is pursuing a time-honored policy. It has not changed its practice to suit one or the other belligerent, and it is believed that it would be unneutral if it changed this policy during the war in order to adjust the equities of the case according to the views of neutrality contended for by the German press, German publicists, and apparently by the Imperial German and Austro-Hungarian Governments.

The United States has passed upon this question long before the present war, and under circumstances which made a strong appeal to the equities of the case. It is common knowledge that public sentiment in the United States was opposed to the Boer War, and that it would have rejoiced to see the Boer Republics maintain their independence in their gallant and unsuccessful war against Great Britain. From another point of view, the contention of the German press, of the German publicists, and apparently of the Imperial German and Austro-Hungarian Governments, was presented in a more extreme form, because the Boer Republics were wholly excluded from the seas and had neither vessels of war upon the high seas nor ports within which men-of-war could be fitted out. The question was presented to and decided by the Executive Department of the United States in 1899, at the instance of the Orange Free State. It was passed upon by the judiciary of the United States in 1901, on behalf of the South African Republic.

First, as to the Orange Free State. On December 15, 1899, Secretary of State Hay instructed Mr. Pierce as follows:

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I have the honor to acknowledge the receipt of your letter of the 11th instant, in which you quote a letter received from Doctor Hendrick Muller, envoy extraordinary of the Orange Free State, dated The Hague, November 28 last, in which he calls your attention to the alleged shipment of material, contraband of war, by the English Government on a large scale from the United States, maintains that such ship ment is contrary to the law of nations, and suggests your remonstrating with this government against the continuance of such irregularities.

In reply I have the honor to quote from 1 Kent's Commentaries, page 142, concerning the well-established doctrine, as to the law of nations on the subject. Chancellor Kent said: "It was contended on the part of the French nation in 1796, that neutral govern

ments were bound to restrain their subjects from selling or exporting articles contraband of war, to the belligerent Powers. It was successfully shown, on the part of the United States, that neutrals may lawfully sell, at home, to a belligerent purchaser, or carry, themselves, to the belligerent Powers, contraband articles, subject to the right of seizure, in transitu. The right has

since been explicitly declared by the judicial authorities of this country." Mr. Justice Story, in the case of the Santissima Trinidad (7 Wheaton, 340), used the following language: "There is nothing in our laws or in the law of nations that forbids our citizens from

sending armed vessels as well as munitions of war to foreign ports for sale. It is a commercial adventure which no nation is bound to prohibit, and which

only exposes the persons engaged in it to the penalty of confiscation.” In the case of the Bermuda, 3 Wallace, 514, Chief Justice Chase said: Neutrals in their own country may sell to belligerents whatever belligerents choose

to buy. The principal exceptions to this rule are, that neutrals must not sell

to one belligerent what they refuse to sell to the other," etc. An examination of Wharton's Digest of International Laws, section 391, will make it clear that the executive departments of this government from the earliest period have maintained the correctness of the doctrine stated by Chancellor Kent, and that, in this position, they have been supported by the decisions of the courts of the United States and by the opinions of eminent authorities on international law.

Under the circumstance, therefore, and in view of the fact that the law on the subject in the United States is well settled, the department does not consider it necessary to cause an investigation as to the correctness of the facts alleged by Doctor Muller.2

Next, as to the South African Republic. In 1901 one Samuel Pearson, on behalf of the Transvaal, whereof he was a citizen, asked an injunction in the Circuit Court of the United States for the Eastern District of Louisiana to restrain the exportation of mules, arms and munitions of war for the benefit of Great Britain, with which country the Transvaal was then at war. The court refused the injunction, saying "that the case is a political one, of which a court of equity can take no cognizance, and which, in the very nature of governmental things, must belong to the executive branch of the government.” In the course of his opinion, however, the judge stated in clear and unmistakable terms what he conceived the law on the subject of contraband to be. Thus, Parlange, District Judge, said: 3

2 VII Moore's Int. Law Digest, pp. 969–970.

The principle that neutral citizens may lawfully sell to belligerents has long since been settled in this country by the highest judicial authority. In the case of the Santissima Trinidad, 7 Wheat. 340, 5 L. Ed. 454, Mr. Justice Story, as the organ of the supreme court, said: “There is nothing in our laws or in the laws of nations that forbids our citizens

from sending armed vessels, as well as munitions of war, to foreign ports for sale. It is a commercial adventure which no nation is bound to prohibit, and which only exposes the persons engaged in it to the penalty of confisca

tion." See, also, the case of the Bermuda, 3 Wall. 551, 18 L. Ed. 200.

16 Am. and Eng. Enc. Law (2d Ed.) p. 1161, verbis “International Law," citing cases in support of the text, says: “A neutral nation is, in general, bound not to furnish munitions of war to a bel

ligerent, but there is no obligation upon it to prevent its subjects from doing so; and neutral subjects may freely sell at home to a belligerent purchaser, or carry to a belligerent Power, arms and munitions of war, subject

only to the possibility of their seizure as contraband while in transit.” Numerous other authorities on this point could be cited, if it was not deemed entirely unnecessary to do so.

The principle has been adhered to by the executive department of the government from the time when Mr. Jefferson was Secretary of State to the present day. Mr. Jefferson said in 1793: “Our citizens have always been free to make, vend, and export arms. It is the

constant occupation and livelihood of some of them. To suppress their callings-the only means, perhaps, of their subsistence because a war exists in foreign and distant countries, in which we have no concern, would scarcely be expected. It would be hard in principle and impossible in practice. The law of nations, therefore, respecting the rights of those at peace, does not require

from them such an internal derangement in their occupation." To the same effect are numerous other expressions and declarations of the executive department of the government from the earliest period of the country to the present time. See 3 Whart. Int. Law Dig. par. 391, tit. “Munitions of War."

Affidavits in the cause purport to show that the vessels which make the exportation of mules and horses of which the bills complain are private merchant vessels; that they are commanded by their usual officers, appointed and paid by the owners;

3 Pearson v. Parson (108 Fed. Rep. 461, 163).


that they are manned by their usual private crews, which are also paid by the owners; that they are not equipped for war; that they are not in the military service of Great Britain, nor controlled by the naval authorities of that nation; that they carry the mules and horses as they would carry any other cargo; and that the mules and horses are to be landed, not on the territory of the South African Republic or the Orange Free State, but in Cape Colony, which is territory belonging to Great Britain. If these affidavits set out the facts truly, it is difficult to see how a cause of complaint can arise. If a belligerent may come to this country and buy munitions of war, it seems clear that he may export them as freight in private merchant vessels of his own or any other nationality, as cargo could be exported by the general public.

These decisions of the United States during the Boer War are peculiarly applicable to the present complaints of Germany and Austria, for the Boer Republics were in a situation almost identical in respect of the supply of arms and ammunition from overseas with that in which Austria and Germany find themselves during the present war. Yet the fact that the Boers were prevented by British naval vessels from purchasing munitions of war did not deter Germany and Austria from selling large quantities of war material to the other belligerent, who happened to be in control of the seas. Indeed, the large extent to which the manufacture of munitions of war has for years been carried on in Germany has made her one of the chief purveyors of such materials to either one or the other of the belligerents in almost every war which has occurred during the last half century or more.

There would seem, therefore, to be as little doubt as to the practice as there is to the law of nations on this subject.



On April 1, 1914, Mr. Robert Lansing of New York took the oath of office as Counselor for the Department of State. On June 9, 1915, he was, upon the resignation of Mr. Bryan, designated Secretary of State ad interim, and on June 23, 1915, he was appointed Secretary of State of the United States.

This is indeed rapid promotion, but it is justified, although perhaps hardly explained, by the fact that Mr. Lansing's selection as Counselor was based solely upon merit, as evidenced by the ability and capacity he had shown during a period of more than twenty years in various

1 Although Mr. Lansing is a member of the Board of Editors of the Journal, it should be stated that he has had no knowledge of and has not been consulted in any way in the preparation of this comment.--Ed.

positions of trust under the Government, beginning with the Behring Sea Arbitration of 1892. The successful performance of the many delicate and varied duties of the Counselorship during the storm and stress of the great war justified his appointment as Secretary ad interim, and indeed a failure to designate him as such would have been contrary to precedent, as Mr. Lansing was the ranking officer of the Department under the Secretary of State and was Acting Secretary during the Secretary's absence.

The appointment as Secretary would have been justified by the years of experience preceding his Counselorship and by the mastery of affairs shown by Mr. Lansing during his tenure of this office, because it is an open secret, or, rather, it is common knowledge, that, as Counselor and as Secretary Bryan's chief assistant he handled the questions arising out of the war, which required a knowledge of international law and of diplomatic precedent. It was fitting, therefore, that Mr. Lansing should be appointed Secretary, and the President was amply justified in appointing him.

However, a knowledge of international law and of diplomatic precedent, while justifying, fails to explain, or explains but inadequately, the selection, because the Secretaryship of State requires, in addition, wit and wisdom, which are "born with a man," and it is unfortunately true, to quote again the happy phrase of one seasoned by years of public service, that "No man is the wiser for his learning." But it is believed that even wit and wisdom do not wholly account for the appointment. The United States is passing through a great crisis. Mr. Wilson, as President of the United States, is responsible for the foreign relations of the country, and it is essential that he have as Secretary of State one with whom he can work in easy and harmonious coöperation and in whose tact, judgment and discretion, as well as knowledge, he has complete and unlimited confidence. He knows from experience that Mr. Lansing possesses these qualifications, and as these qualifications are necessary to maintain the neutrality of the United States in the great war, by which we are not only industrially and commercially affected, but which influences our policy as well, the President disregarded precedent, which ordinarily suggests if it does not require the appointment of a political leader, and selected the man who, to his own knowledge, possessed the necessary qualifications for the Secretaryship of State in the crisis through which we are passing, and with whom, as shown by experience, he could work with the ease and harmony necessary for the dispatch of public affairs.

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