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theory that the State has nothing to do with the private commercial dealings of its subjects in contraband. It was recognized, when too late, that to deny any responsibility to restrain acts of commerce which supplied one belligerent with its whole fighting navy after the war had begun, was to reduce the neutrality of the State to an absolute farce. Accordingly the Government forbade the departure of other war vessels of the Alabama type (such as the Alexandra and the Pampero) from their ports, they expended £110,000 on the purchase of certain gunboats (said to be intended for the Emperor of China), in case they should fall into the hands of one of the belligerents, and finally they made a forced purchase of two iron-clad rams which were being constructed by a Birkenhead firm for the insurgents.
In spite of these energetic acts, we do not find that any hindrance or obstacle, even of a negative kind, was put in the way of the gunmakers of this country who armed over a million men with rifles and muskets in the course of that war, although the precise difference in principle between supplying a belligerent with a couple of steel rams (for arming his ships) and supplying him with arms for his troops is hard to discover. If the State interferes in the one case in order to preserve its neutrality, it is surely bound to show at least a negative disapproval in the other by treating the trade as illegal in its courts. If the rifles had been supplied gratuitously to the combatants by well-wishers in this country, they would have committed an illegal act. Yet the mere fact that a few private persons realized immense fortunes thereby is sufficient to alter the quality of the act, although no one will question the fact that its effect on the war is the same in either case. It is the alchemy of gold, purely and simply, which transforms the nature of this unlawful trade in the eye of the legislature.
We have previously alluded to the jungle of loose phraseology in the existing literature on this subject, and we
suggest that the source of all the confusion may be found in the utterances of one or two famous jurists whose reputation and position have combined to give authority to their utterances.
Lord Cockburn, in the course of his dissenting judgment at Geneva on the Alabama claims, alluded as follows to the question of contraband trade :
“The right of the belligerent to intercept this species of commerce and the liability of the neutral to have his property captured and confiscated under such circumstances do not arise out of obligations inherent in the nature of neutrality. They are purely conventional, and, as it were, a compromise between the power of belligerents and the rights of neutrals." What shall we say of such “rights” as these? If the neutral trader is really exercising a right, why should his Government (often far more powerful than the belligerent Government) always leave him to his fate? Why should it allow any compromise between his rights and the "power" of the belligerent, without even a single diplomatic assertion of those rights? The fact is that the neutral Government abandons the individual to the consequences of his hostile and unneutral acts as a sort of sop to Cerberus for the breach of its own neutrality, which has been committed under its very eyes from its own ports and with its own tacit acquiescence, for “he is on the side of the enemy who supplies him with the necessaries of war."
The language of the great American jurist, Chancellor Kent, on the same subject, betrays so similar a confusion of idea as to forcibly suggest the conclusion that the atmosphere of glorious uncertainty, the freedom from binding authority, and the lack of agreement among the text writers which pervade the study of international law, produce a kind of vertigo of the mind on these powerful intellects hitherto restrained by the iron fetters of statute and precedent. “The right of the neutral,” he says, “to transport
(contraband to one of the belligerents) and of the hostile power to seize are conflicting rights, and neither party can charge the other with a criminal act."
What is the ethical or the legal meaning of the word ‘right” in this passage? We are told that one party has a
right” to do a certain act which damages another, and that the other party has a “conflicting right" to stop him.
It should be noted that this dictum of the famous Chancellor has been uniformly treated as Biblical, and quoted and relied upon as a model of inspired wisdom by the host of lesser writers whose opinions are always "mortised and adjoined” to those of the great. The passage may be appropriately interpreted as follows:“The right of Red Indian A to take the scalp of Red Indian B, and the right of Red Indian B to stop him if he can, are conflicting rights, and neither party can charge the other with a criminal act.” A further comment on these so-called "conflicting rights” is furnished by the fact that every Treaty of Navigation and Commerce entered into between the maritime powers, from the Treaty of Munster, in 1648, to our own day, with one solitary exception, contains a reservation against the trade in and the transport of contraband. Moreover, at the convention of maritime powers known as the “Second Armed Neutrality,” which was held in the year 1800, with the express object of stretching the rights of neutral traders to the uttermost, the representatives of the various powers agreed in declaring the carriage of contraband to be illegal. During the American War of Independence, Lord Stormont at Paris, and Sir Joseph Yorke at the Hague, were instructed to utter repeated complaints against the trade in munitions of war between those countries and North America, and the Dutch Government in particular were informed that “ His Majesty expects that their High Mightinesses will take measures, without delay, to stop the despatch of munitions of war by any means, direct or indirect, to North America,” and
they accordingly did stop it. Yet, in the face of such facts as these, we are gravely told by the highest authorities, that the traffic is not wrong, and that the neutral trader even has a “conflicting right” to carry it on.
The late Mr. W. E. Hall, the greatest of English publicists, according to his wont is frankly utilitarian on this point. " Acts done even with intent to injure a Foreign State are only wrong in so far as they compromise the nation of which the individual is a member. It (contraband traffic) is prevented (by the injured belligerent) because it is inconvenient, not because it is a wrong, and to allow the performance by a subject of an act not in itself improper cannot constitute a crime on the part of the State to which he belongs ” (International Law, p. 80). Beyond this dogmatic statement of his views Mr. Hall does not attempt to deal with the ethical aspect of a trade which put arms into the hands of a million men in the course of a modern war, and turned this country, professedly a neutral, into the arsenal of a belligerent nation. On the face of it the trade would appear to be “not wrong" in Mr. Hall's opinion, on the same ethical grounds on which Chancellor Kent bases his "rights."
At the root of the matter lie the two opposite conceptions of the basis of the international duty of a neutral State, between which there is a great gulf fixed. So great is that gulf, that the writings of every publicist and the acts of every statesman are leavened according as he holds one or other of these views of the standard by which international conduct should be guided. The first of these opposing conceptions may be well illustrated by some remarks by Professor Westlake on this very subject of State Interference in contraband trade carried on by subjects of a neutral State. Writing in the Revue de Droit International (vol. 2), the Professor asks, "Why is a belligerent not allowed to seize neutral commerce except under conditions which determine the contraband character (of the goods)? Simply because experience has
shown that these conditions form the limit of the degree of intervention that neutrals would tolerate."
Later on he says, “ The law rests at the point where the pretensions of belligerents and the resistance of neutrals are in equilibrium." And Mr. W. E. Hall, writing on the same subject, says, as we have seen, that “Acts done, even with intent to injure a foreign State, are only wrong in so far as they compromise the nation of which the individual is a member." Lord Cockburn says, “The other party looks on the existing restraints on the freedom of neutral commerce as encroachments on his rights, and considering these restraints as arising entirely from convention, denies the illegality of any trade which the actual practice of nations does not prevent."
These extracts have one feature in common. They all deny, by implication, that International Law rests on a moral basis. Mr. Westlake treats the dread of violence like a barometer, by consulting which the exact measure of neutral “rights and “duties” may be ascertained. Mr. Hall appears to gauge the moral quality of the act of the neutral trader by the amount of “fuss ” which the injured State is likely to make.
It will be noticed that Lord Cockburn, who identified himself with the opinions of “the other party,” sets up the actual practice of nations as the guide for international conduct in this matter, and considers existing restraints on the trade as an encroachment on the rights of the neutral trader. We have already pointed out that if the so-called rights of the trader had the least scintilla of right about them, no encroachment of them would be passively tolerated by the neutral Government.
The question as to how far the actual practice of nations is a satisfactory guide for international conduct is well illustrated by a quotation from the British Case at the Geneva Arbitration. On page 12 it is there said, “The British