Prof. Dr. Klaus Peter Berger, LL.M.transnational lawtransnational law (lex mercatoria or international business law) and ""2014-03-31 13:23:07https://www.trans-lex.org/img/logo_ball.png
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The indirect claims at first insisted on by the Government of the United̢۬ States being now out of the question, we have to deal with the claims̢۬ for damages, " growing out of the acts " of certain specified vessels, as̢۬ to which it is alleged that, by reason of some default on the part of the̢۬government of Her Majesty the Queen of England, these vessels were ̢۬enabled to take and destroy ships and cargoes belonging to citizens of̢۬ the United States.
Causes of complaint brought forward by the United States
The causes of complaint put-forward by the United States Govern̢۬ernment may be classed under the following heads:
1. That by reason of want of due diligence on the part of the 
British government, vessels were allowed to be fitted out and equipped, in ports of the United Kingdom, in order to their being employed in making war against the United States, and, having been so equipped, were allowed to quit such ports for that purpose.
2. That vessels fitted out and equipped for the before-mentioned purpose, in contravention of the foreign-enlistment act, and being therefore liable to seizure under that act, having gone forth from British ports, but having afterward returned to them, were not seized as they ought to have been, but, having been allowed hospitality in such ports, were suffered to go forth again, to resume their warfare against the commerce of the United States.
3. That undue favor was shown in British ports to ships of war of the Confederate States in respect of the time these ships were permitted to remain in such ports, or of the amonnt of coal with which they were permitted to be supplied.
That vessels of the Confederate States were allowed to make British ports the base of naval operations against the qhips and commerce of the United States.
Owing to all or some one or other of these causes, vessels of the Confederate States were euabled, it is alleged, to do damage to the commerce of the United States; and compensation is claimed in respect of the damage so done.
The treaty of Washington
The treaty of Washington, from which our authority is derived, lays down, for our guidance in dealing with and deciding on these claims, certain rules as to the obligations of Great Britain as a neutral state, which for the purpose of this arbitration are to be taken to have been binding on it.
Not, indeed, that the British government admits that these rules form part of the law before existing between nations. On the contrary, it is expressly stated that "Her Britannic Majesty has commanded her high commissioners and plenipotentiaries ta declare that Her Majesty's government cannot assent to the foregoing rules as a statement of principles of international law which were in force at the time when the claims mentioned in Article I arose, but that Her Majesty's govern-
ment, in order to evince its desire of strengthening the friendly relations between the two countries, and of making satisfactory provision for the future, agrees that, in deciding the questions between the two countries arising out of those claims, the arbitrators should assume that Her Majesty's government had undertaken to act upon the principles set forth in these rules. And the high contracting parties agree to observe these rules as between themselves in future, and to bring them to the knowledge of other maritime powers, and to invite them to accede to them."1
The rules in question are as follows:
A neutral government is bound—
First. To use due diligence to prevent the fitting oat, arming, or equipping within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to . cruise or to carry on war against a power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use.
Secondly. Not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men.
Thirdly. To exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties.1
With these rules before it, the tribunal is directed to determine as to each vessel, "whether Great Britain has, by any act or omission, failed to fulfill any of the duties set forth in such rules, or recognized by the principles of international law not inconsistent with such rules."
Difficulty arising from the treaty
The effect of this part of the treaty is to place this tribunal in a position of some difficulty. Every obligation for the non-fulfillment of which redress can be claimed presupposes a prior existing law, by which a right has been created on the one side and a corresponding obligation on the other. But here we have to deal with obligations assumed to have existed prior to the treaty, yet arising out of a supposed law created for the first time by the treaty. For we have the one party denying the prior existence of the rnles to which it now consents to submit as the measure of its past obligations, while the other virtually admits the same thing; for it " agrees to observe the rules as between itself and Great Britain in future, and to bring them to the knowledge of other maritime powers, and invite them to accede to them "—all of which would plainly be superfluous and vain if these rules already formed part of the existing law recognized as obtaining among nations.
It is, I cannot but think, to be regretted that the whole subject-matter of this great contest, in respect of law as well as of fact, was not left open to us, to be decided according to the true principles and rules of international law in force and binding among nations, and the duties and obligations arising out of them, at the time when these alleged causes of complaint are said to have arisen.
From the history of the treaty of Washington we know that it was proposed by the British commissioners to submit the entire question, both as to law and fact, to arbitration; bnt the commissioners of the United States refused to "consent to submit the question of the liability of Great Britain to arbitration unless the principles which should govern the arbitrator in the consideration of the facts could be first agreed upon." In vain the British commissioners replied that they "should be willing to consider what principles should be adopted for observance in
future, but that they were of opinion that the best mode of conducting an arbitration was to submit the facts to the arbitrator, and leave him free to decide upon them after hearing such arguments as might be necessary." The American commissioners replied that they should be willing to consider what principles should be laid down for observance in similar cases in future, but only with the understanding that " any principles which should be agreed upon should be held to be applicable to the facts in respect to the Alabama claims." The British commissioners and government gave way, possibly without "fully appreciating the extent to which the principles of which they were thus admitting the application would be attempted to be carried in fixing them with liability.
How this apparent anomaly arose is plain. Her Majesty's government, animated by a high sense of justice and by an earnest desire of conciliation, were anxious to remove every possible cause of complaint or sense of wrong which the Government and people of the United States had, or believed themselves to have, against Great Britain as to matters arising out of the civil war; they were willing that if, through any errrors or shortcomings on the part of British authorities, injury had been caused to American subjects, full redress should be afforded; they were willing that the question should be determined by an independent and impartial tribunal; and though they would naturally have preferred that the matters in dispute between the two countries should be decided by what they believed to be the rules of international law governing the case, rather than that, if the decision should be in favor of Great Britain, the American people should feel that the contest had not been determined according to what, in their view, were the principles applicable to it, Her Majesty's Government gave way to the desire of that of the United States, and consented that the rules by which it was agreed that the duties and obligations of the two nations should be governed in any future case should be taken to be the measure of the past obligations and duties of Great Britain with reference to the subject-matters of the dispute.
It was a great and generous concession, and though the effect of it might be a pecuniary sacrifice on the part of Great Britain, it was one which was cheerfully made on the one side, and I trust will not fail to be appreciated in the same generous spirit on the other.
If, however, the differences which have unhappily arisen between the United States and Great Britain were to be determined, not according to the rules of international law which the arbitrators to be agreed ou should determine to be applicable to the case, but according to rules to be settled by the contending parties themselves, then I cannot but wish that the framers of this treaty had been able to accomplish the difficult task, now left to us, of defining more precisely what is meant by the vague and uncertain term "due diligence," and had also set forth the further " principles of international law, not inconsistent with the rules laid down," to which reference is made as possibly affecting the liability of Great Britain.
To some of the heads of complaint hereinbefore referred to, this observation does not indeed apply. Whether vessels, which might originally have been seized, should have been so dealt with when they reentered British ports, or whether they were protected by the commissions they had in the mean while received from the confederate government ; whether confederate ships of war were permitted to make British ports the base of naval operations against the United States; whether the accommodation afforded to them in British porta consti-
toted a violation of neutrality, for which Great Britain can be held liable, are questions which are left to be decided and must be decided according to the rules of international law alone.
But when we have to deal with the far more important question of the liability of Great Britain by reason of the omission to use "due diligence" to prevent the equipment of vessels of war in her ports, as required by the treaty, we find nothing in the treaty to direct us as to the meaning of that term, especially as regards the degree of diligence which is to be understood to be required by it.
Left in this difficulty, we must endeavor to determine for ourselves the extent and meaning of the "due diligence" by which we are to test the alleged shortcomings of the government of Great Britain. For, it is plain that the standard of " due diligence " ought not to be left to the unguided discretion of each individual arbitrator. The municipal law of every country, wherever diligence is required by the law, whether in respect of obligations arising out of contract, or in regard to the due care which every one is bound to exercise to avoid doing harm to the persons or property of others—ne alienum laedat—prescribes some standard by which the necessary degree of diligence may be tested.
Dealing here with a matter appertaining to law, it is to juridical science that we must look for a solution of the difficulty. And since we have to deal with a question of international law, although, it is true, of an exceptional character, it seems to me that it will be highly useful to endeavor to form a clear view of the reciprocal rights and duties between belligerents and neutrals, created by international law generally, and of the diligence necessary to satisfy the obligations which that law imposes. I cannot concur with M. Staempfli, that, because the practice of nations has at times undergone great changes, and the views of jurists on points of international law have often been and still are conflicting, therefore there is no such thing as international law, and that, consequently, we are to proceed independently of any such law—for such is the effect of his reasoning, if I understand it rightly—according to some intuitive perception of right and wrong, or speculative notions of what the rules as to the duties of neutrals ought to be. It seems to me that when we shall have ascertained the extent to which a neutral state is responsible, according to the general law of nations, for breaches of neutrality committed by its subjects, and the degree of diligence it would be called upon to exercise under that law, in order to avoid liability, we shall be better able to solve the question of what constitutes due diligence in the terms of the treaty of Washington. That treaty may have admitted a liability in the respect of the equipment of ships where none existed by international law before, as I certainly think it has: but the degree of diligence required of a neutral government to prevent breaches of neutrality by its subjects must be determined by the same principles, whatever may be the nature of the particular obligation.
Besides the necessity of thus considering the relation of belligerents and neutrals with reference to the subject of " due diligence,"" we have further, in order to satisfy the exigency of the articles of the treaty, to consider whether, besides in the omission of "due diligence," Great Britain has failed to fulfill any duty imposed by any principle of international law not inconsistent with the rules laid down. It is clear also that, with reference to the other heads of complaint, our decision mnst necessarily depend entirely on the rules of international law applicable thereto. It seems to me, therefore, desirable, in the first place, to endeavor to take an accurate survey of the law by which the relative
rights of belligerents and neutrals are fixed and determined, as essential to the solution of the questions we are called on to decide.
I proceed, therefore, to consider the subject of neutral obligations in time of war.
Elements of neutrality
Neutrality may be said to be the status of a country relatively to two others which are at war with one another, while it remains̢۬ at peace with both, and gives assistance to neither.
The last-mentioned condition is plainly an essential element of that which goes before it; for, to give assistance to either of the belligerents would be indirectly to take a part in the war, and would afford a sufficient reason to the one whose enemy was thus assisted, for having recourse to force to prevent such assistance from being given.
Obligations of the neutral state
It is obviously immaterial in what form the assistance is rendered, so long as its purpose and effect is to add to the means of the belligerent for the purpose either of offense or defense. Troops, men, horses, ships, arms, munitions of war of every kind, money, supplies—in short, whatever can add to the strength of the belligerent for the purpose either of attack or defense—are things that cannot be supplied by a neutral state to either belligerent without forfeiting the character of neutrality and the rights incidental to it.
In like manner the neutral sovereign cannot allow the use of his territory for the passage of troops of either belligerent, still less allow it to be used by either as a base of hostile operations. He cannot lend his ships for the transport of troops, arms, or munitions of war, or even for the transmission of dispatches. Whatever restrictions, in the exercise of his territorial rights, he imposes on the one belligerent, he most impose on the other also; for restraints—however lawful and proper in themselves—enforced as against the one, dispensed with as regards the other, are indirectly assistance given to the one so favored.
Obligations of  the subjects of a neutral state
Whatever obligations attach by the general principles of the law of nations to the state or community, as a whole, are equally binding on its subjects or citizens. For the state or community is but the aggregate of its individual members, and whatever is forbidden to the entire body by that law, is equally forbidden to its component parts. In this sense, and iu this sense only, can it be said that international law—in other words, the common law of nations— forms part of the common law of England; for the greater part of the rules of international law, by which nations now consent to be bound, are posterior in date by many centuries to the formation of the common law of England. Nevertheless, Great Britain forming part of the great fraternity of nations, the common law adopts the fundamental principles of international law, and the obligations and duties they impose, so that it becomes, by force of the municipal law, the duty of every man, so far as in him lies, to observe them; by reason of which any act done in contravention of such obligations becomes an offense against the law of his own country.
Liability of the state for acts of its subjects
But the subject who thus infringes the law of his own country by violating the neutrality which that law enjoins him to maintain, is amenable for his offense to the law of his own country alone, except when actually taking part in the war as a combatant, when, of course, he is liable to be dealt with according to the laws of war. The offended belligerent has otherwise no hold on him. International law knows of no relations between a state and the .subjects of another state, but only of those which exist between state and state. But this being so, the belligerent, against whom a breach of neutrality has been committed by the subject of a neutral
state, as distinguished from the state itself, may have a right to hold the state responsible, and to look to it for redress. For the state, that is, the community as a whole, is bound to restrain its individual members from violating obligations which, as a whole, it is bound to fulfill.
Not, however, that the responsibility of the state for the acts of its subjects is absolute and unlimited. Reason has set bonnds to a responsibility which would otherwise be intolerable. For it must be remembered that the consequence of a violation of neutrality is the right of the offended belligerent to treat the offending neutral as an enemy, and declare war against him. He is not bonnd to accept pecuniary amends as an alternative.
Now, reason points out that the government of a country can only be held responsible for breaches of neutrality committed by its subjects, when it can reasonably be expected to prevent them.
There are things which a government can prevent, and others which it cannot. It can prevent things that are done openly and in defiance of law. The open levying of men, and expeditions departing from its territory by land or water, are things which a government would properly be expected to, prevent, and for which, if not prevented, it would be answerable.
But a government could not be so held in respect of things it cannot prevent; such as the conduct of individual subjects in enlisting or serving in the land or sea force of a belligerent, or things done clandestinely or surreptitiously, so as to elude observation or detection, notwithstanding the exercise of proper diligence to prevent the law from being broken. But then the exercise of such diligence is part of the duty of a government, and the condition of its immunity. If this diligence has been wanting, a belligerent has just cause to hold the neutral state responsible for wrongful acts done by its subjects, in violation of neutrality, and from which he, the belligerent, has suffered. We are thus brought face to face with the all-important question of what is this "diligence" which a government is thus bound to exercise to prevent breaches of neutrality by its subjects. I shall endeavor presently to grapple with that question; but I prefer first to complete my survey of the relative rights and obligations of belligerents and neutrals.
And as the principal complaint against the British government relates to vessels of war furnished by its subjects to the Confederate States, I shall, in the first place, apply myself to the question how far the subjects of a neutral state can, consistently with the obligations of neutrality, supply a belligerent with articles of warlike use in the way of trade and business.
Rights of neutral subjects in respect of trade
For, thus far, we have been dealing with assistance rendered to one belligerent against another, animo adjuvandi, for the direct purpose of enabling him to overcome or resist his opponent. Very different considerations present themselves when we have to deal with assistance furnished to a belligerent, not animo adjuvandi, with the object of enabling him to overcome his enemy, but animo commercandi—in the way of trade and commerce.
Difference between a State and its subjects in regard to trade
Here a broad and important distinction between the state and its subjects presents itself. The former, generally speaking, cannot, consistently with neutrality, under any circumstances, supply to one of two belligerents articles which may be of use to him incarrying on war. For, as governments do not engage in trade, save in exceptional cases of very rare occurrence—as, for instance, when a government disposes of ships for which it has no use— nothing supplied by a government to a belligerent can be supplied
otherwise than animo adjuvandi; that is, for a purpose inconsistent with neutrality. But its subjects stand, in this respect, on a very different footing. The subject, indifferent to both the belligerent parties, may be willing to sell to either articles of warlike use in which he is in the habit of dealing. Assistance, and sometimes very material assistance, is thus afforded to a belligerent, who, by this means, is enabled to carry on war. Is assistance thus afforded, not animo adjuvandi, but animo commercandi, a breach of neutrality, or is it to be considered as within the right of the neutral subject?
Now, the subjects of a neutral state having in time of peace the right of carrying on trade with a belligerent, on what ground of reason or justice, it may be asked, should their right of peaceful trade be taken away, and their interests, thus be damaged by reason of a war which they have had no share in bringing about, and in which they have no concern? The conditiou of neutrality, in not supplying anything to either belligerent with the object of assisting him against the other, or which would not be as readily supplied to the other, being observed, what reason can be suggested why the rights of the neutral in his relations with either belligerent, as they existed before war broke out, should be disturbed or altered?
An Italian jurist thus writes:
II fatto della vendita degli oggetti di contrabb.indo avvenuta in territorio neutrale e opera dello stato etesso nella sua qnalita di persona pubblica, o invece 6 l'operato di siioj pvivati cittadiui, cbe fanno di cio la loro abitaale professione. Nel primo oaso e fuor di dnbbio cho vi sarebbe motivo di lagnanza per parte drtino dei belligeranti, poiche Don entra negli officii dello stato l'attendere a privati mercimonii, ed ogai sno atto ba an valore internazionale o in senso di nn diritto o in senso
Se gli antori che hanno disensso la presents questioue avessero ritennta la capitate diflerenza che passa tra gli atti pubbhei del governo e quelli dei privati cittadini, non avrebbero'al certo classincato come atti contrari alia condizione neutrale la vendita fatta in territorio nentro da privati cittadini di armi e munizioni da guerra.1
Effect of war on neutral trade
Nevertheless, it is certain that the rights of a nation, as regards trade with another nation, do undergo very considerable modifications, when such second nation engages in war with a third; and when it is said by some writers that neutrality is only the prolongation of the state of peace between the neutral and the belligerent, this language must be taken with considerable allowance. For, it is certain that, as regards trade and commerce, the rights of the peaceful neutral undergo very serious diminution. By the admitted rules of international law, a belligerent may seize articles contraband of war iu transit by sea from the neutral to his enemy. By blockading his enemy's port he may shut the commerce of the neutral even in articles not capable of being applied to warlike use. True, say those writers who advocate the rights of neutrals against belligerents; but if the rights of the neutral subject in respect of trade had been regulated according to natural law, or, to speak more philosophically, according to the law which reason points out as for the common benefit of all, those rights would have remained undisturbed and unaffected by the wars of others with whom his own country remained at peace. But between distant nations trade can be carried on only by sea. The nations most powerful at sea have generally been those who have waged war on the ocean.
In such wars they have sought to weaken their adversaries by crippling their commerce, and to effect that object have imposed restraints on peaceful states less powerful than themselves. Some countries have even gone so far, in early times, as to interdict all commerce whatever with nations with which they were at war. The sense of mankind, it is true, revolted against pretensions so extravagant, and after a time the restraints which belligerents were entitled to impose on neutral commerce were rendered less oppressive. But they still bear the impress of their origin, as having been imposed by the strong upon the weak. They are manifestly in derogation of the common right of peaceful trade which all maritime nations enjoy in time of peace, but which is thug made to submit to restraint in order to serve the purposes of those by whom the peace of the world is disturbed.
Let us see how these restraints on neutral commerce became settled in time. As they existed till a very recent period, according to the general practiee of nations, they were as follows:
1. Though the belligerent might resort to the neutral territory to purchase such articles as he required, even for his use in war, and the neutral in selling him such articles would be guilty of no infraction of neutrality, yet, in regard to things capable of being used in war, and which thenceforth received the appellation of " contraband of war," if, instead of the belligerent himself conveying them, the neutral undertook to convey them, such articles, if intercepted by the adversary, though the property of the neutral in them had not been transferred to the belligerent, were liable to be seized and became forfeited to the captor. If £be article was of a doubtful character, ancipitis usus, that is, one that might be applied to purposes of peace or of war, the liability of seizure depended on whether the surrounding circumstances showed that it was intended for the one use or the other.
2. If either belligerent possessed sufficient force at sea to bar the access to a port belonging to his enemy, he was entitled to forbid the neutral all access to such port for the purpose of trade, however innocent and harmless the cargo with which his ship might be charged, under the penalty of forfeiting both ship and cargo.
3. The neutral was prohibited from carrying the goods of a belligerent, such goods not beiug protected by the neutral flag, but being subject to seizure.
4. Besides this, according to the practice of France, the neutral was prohibited from having his goods carried in the enemy's ship, and if the ship was taken the goods became prize.
Lastly, to enforce the rights thus assumed by powerful belligerents, the neutral had further to submit to what was called the right of search, in order that the belligerent might satisfy himself whether goods of the enemy, or goods contraband of war intended for the enemy, were being conveyed in the neutral ships.
By the wise and liberal provisions of the declaration of Paris of 1856, the last two oppressive restraints on the trade of neutrals, mentioned under heads 3 and 4, have, as between most of the leading nations of the world, been done away with. The others remain. America has not as yet formally assented to the declaration of Paris. The two rules in question do not, however, come into play on this occasion.
Blockade and contraband of war
But the two first of the restraints put on neutral commerce occupy a prominent place in the discussions which have occurred in the course of this inquiry. Both of them are manifestly restraints, and restraints of a very serums character, on the natural freedom of neutral commerce. The advantage thus acquired of preventing
the trade of the neutral in articles of warlike use, at a time when that
trade is the most likely to be profitable to him, and still more that of
preventing it in any shape by the blockading of an enemy's port, is
obviously obtained only at the expense of the peaceful rights of neutral
commerce.Â
The right of blockading a port, and thereby excluding from it neutral commerce of every sort, has been justified by assimilating it to that exercised by the besieger of a city or fortress, in investing it and debarring all access to it. But the analogy is not complete, for the immediate purpose of the besieger is to take the city or fortress, while that of the blockade is, not to capture the blockaded port, but to enfeeble the enemy and diminish his means by the gradual destruction of his commerce, which of course necessarily involves a corresponding loss inflicted on the commerce of the neutral. And though it may be said that, just as the besieger of a city or fortress is in occupation of the territory which surrounds it, and is, therefore, by the law of war, master of such territory and entitled to give laws to all within its ambit, and has thns fall right as well as power to forbid access to it, so the blockading force has occupation of the territorial waters and can exercise a similar right iu respect of them; yet for the most part such occupation is constructive only, and the blockading force is generally in the habit of sending cruisers jar beyond the limits of the territorial waters, to intercept vessels intending to enter the blockaded port.
On whatever ground the right of blockade thus conceded to belligerents may be placed, it is obvious that it is a very serious encroachment on the freedom of the neutral in the peaceful pursuit of commerce.
Nor must it be forgotten, with respect to the trade carried on in defiance of a blockade, that the neutral owes nothing to the blockading belligerent, who, for his own purposes, thus seeks to shut out the innocuous commerce of the neutral with his enemy, regardless of the loss and injury he is thereby inflicting on him.
Contraband of war
The right to intercept articles of warlike use has been for the most part treated by earlier writers on international law as an admitted encroachment on the nentral in respect of freedom of trade. It has been justified on the score of the necessity in which the belligerent captor is placed, of preventing that which will be used to his own hart from reaching his adversary; or as arising from the law of self-defense, which gives to the belligerent the right of stopping things which may be used against him, while on their way to his enemy, and, furthermore, of confiscating them to hia own use as a penalty on the neutral for having intended to convey them to the enemy.
Looked at from this point of view, it is said that 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; and, if this species of trade can be said to be unlawful, it is only so sub mode, it being left free to the neutral to pursue it, subject always to the right of the belligerent to seize it during its transit to his enemy, if he can. " The right of the neutral to transport," says that great jurist Chancellor Kent, " and of the hostile power to seize, are conflicting rights, and neither party can charge the other with a criminal act."1
Different view
A different view respecting the trade of the neutral in articles of contraband of war has, however, been maintained in our day. M. Hautefeuille, and the writers of his school, look upon the supplying of articles of contraband of war by the neutral in the way of trade as inconsistent with the duty of neutrality, which prohibits the rendering of assistance to a belligerent for the purpose of a war in which he is engaged, extending the rule to articles of warlike use supplied in the way of trade as much as to those furnished gratuitously.
According to this view, the neutral thus guilty of a breach of the first principle of neutrality justly incurs the penalty of his transgression in the confiscation and loss of his property.
This doctrine is open, however, to the objection that it is inconsistent with the practice of nations, according to which this species of trade-has never been treated as a breach of neutrality in the full sense of the term. It wholly fails to account for or justify the right of blockade.
But the importance of this difference in the views of publicists will be more sensibly felt when we proceed to deal with the subject of the trade of the neutral with the belligerent in the country of the neutral.
No obligation on neutral government to prevent trade in contraband of war, or with blockaded ports
One thing is quite clear, and must not be lost sight of: Neither the trade in contraband of war nor that carried on in defi- Ko Mit,Uoâ€Ã…¾ 0â€Ã…¾ ance of a blockade constitute, practically, any violation of E-JEUS'SSTS neutrality, so far as the government of the neutral trader is concerned. Scarce any neutral government has ever attempted to prevent its subjects from carrying on such trade; no neutral government was ever held responsible, as for a breach of neutrality, for such trade carried on by its subjects. This is a point as to which there has been no difference of action among governments, or difference of opinion as to the duty of governments among writers on public law. It is one of those things which, on the part of its subjects, a government, according to the existing practice of nations, is not called upon to prevent. It is one of those things which the belligerent, who, in furthering his own purposes is indifferent to the loss he inflicts on the neutral, nfust submit to if he is unable to prevent it, and for which he is not entitled to hold the neutral state responsible.
Speaking of the transport of articles contraband of war, M. Ortolan
 states the law most correctly:Â
Among the various articles coming under the denomination of contraband of war, according to the general principles of international law, two more particularly interest us on the present
occasion-ships of war and coals. Both are excluded from the category of contraband by M. Hautefenille, who refuses to recognize as such anything which is not in its actually existing state ready to be used for attack or defense. The following passages from his work, "Des droits et des devoirs des nations neutres," explain the views of the author on the subject of ships, which, till armed, he refuses to consider contraband of war, and which, whatever the construction, when unarmed, he holds to be objects of lawful commerce:
But the views of this eloquent and learned but theoretical author on this subject are not shared by other writers. Galiani, Hiibner, (the champion of the rights of neutrals,) Martens, Tetens, Piantanida, Rutherford, Lord Stowell, Chancellor Kent, Heffter, in his able work, " Das europaische Volkerrecht der Gegenwart," include ships among the things which are contraband of war. Among later writers, M. Ortolan and Sir Robert Phillimore place both ships and coal in the list of articles of contraband. I entirely concur in thinking that a ship adapted and intended for war is clearly an article of contraband. Such a ship is, in fact, a floating fortress, and, when armed and manned, becomes a formidable and efficient instrument of warfare. Coal, too, though in its nature ancipitis usus, yet, when intended to contribute to the motive-power of a vessel, must, I think, as well as machinery, be placed in the same category as masts and sails, which have always been placed among articles of contraband, except by M. Hautefenille, who, as has been stated, insists that nothing is to be considered as contraband except what is capable of being immediately applied to the purpose of destructive warfare.
It is perfectly clear, though I fear it has not always been kept in view iu the course of these discussions, that, with the liability to the seizure and loss of the cargo, (in some instances, it is said, of tlhe ship,) if he transmits contraband of war to the enemy of the belligerent captor, (and to the loss both of ship and cargo if he attempts to force a blockade,) ends, according to the existing practice of nations, all restraint on the trade and commerce of the neutral. In his own country, in his own markets, iu his own factories, the neutral may, according to the practice of nations, sell articles to the belligerent which, if sent by sea, would be contraband of war. Theoretical writers are not, indeed, of one mind on this subject. "While the great majority of authors are agreed as to the right of the neutral to sell, in the way of trade, to the belligerent resorting to his market, whatsoever the latter desires to buy, if the neutral has it to sell, whether the article be of an innocent character or contraband of war in its most destructive form, a few authors have recently written in a different spirit.
No writer on international law before Galiani had ventured to assert that the neutral was prohibited from selling, in his own country, to a belligerent, articles which, if sent out of his country by sea, would be liable to siezure as contraband of war. His doctrine to that effect was vigorously refuted by his two distinguished countrymen, Lampredi and Azuni, aud was tor a time abandoned as untenable; but it has been revived in our day. Let us review the leading authorities. The question is not only of interest to the jurist, but one which will be fouud to be important to some of the decisions of this tribunal.
Lampredi
Lampredi, in his work on neutral commerce, refutes the opinion of Galiani. On the general subject, ( I quote from Peuchets' French translation, not having the original before me,) he writes as follows:
In chapter v, page 57, he treats the question whether neutrals may sell every kind of merchandise within the neutral territory to a belligerent, as one which no jurist anterior to Galiani had ever thought of bringing into controversy, all their discussions being confined to the carriage of contraband to the enemy. It is not, he explains, till they have left the neutral territory that articles, though of warlike character, assume the character of contraband. In chapter vii, page 72, he says :
In another work Lampredi, speaking of neutrality, says:
Et quia neutrius partis esse debet, et a bello omnino abstinere, neutri etiam suppeditabit quae directe ad bellum referuntur. Suppeditare hic loci transvehere ad alterutrum hostem significat; nam si qua gens instrumenta bellica, et coetera supra memorata utrisque bellantibus aequo pretio veluti merces vendat, neutralitatem non violat. Ad hanc necessariam mercaturtae distinctionem animum non advertisse eos, qui de hac retam prolixe scripserunt, manifeste patet; maxime enim inter se differre videntur exportatio mercium ad hostem meum ab amico vel neutro populo facta, et eorum venditio, quae ad bellum necessaria esse possunt.1
Azuni
Azuni, who wrote shortly after Lampredi, maintains the same doctrine. In his work "Système universel de principes de droit maritime," (ch. ii, art. 3,) he says:
Reddie, in his " Researches Historical and Critical in Maritime and International Law," cites these views with concurrence and approbation.
In Wheaton's History of International Law, the author speaks of the refutation of Galiani by Lampredi as superfluous, as an "idle question." Mass6, in his work " Le droit commercial dans ses rapports avec le droit des gens," after maintaining the right of the belligerent to intercept contraband, adds :
Professor Sandona, of Siena, "Trattato di diritto internazionale moderno," comparing passive with the active commerce of neutrals, says:
Dico adunque, che si crede a torto che faccia opera ad un di presso egualo, chi vende semplicemeute nel proprio paese quanto immediatemente si riferisce ai mezzi di fare la guerra, e chi trasporta questi mezzi sui mercati o nelle piazze dei belligeranti. II primo vende le sue merci nel proprio paese, ove non vi è, stando al puro diritto razionale, alcuna legge che gliene vieti il traffico. E appunto perchè dimora in esso, e niente osta a questo commercio, egli non fa uso che della sua libertà , che d'altra parte finchè rimane nel paese nativo, nessun principe straniero può limitare...... La sola cosa che si può dimandare da lui è questa, che sia disposto a vendere egualmente a chiunque si presenta le sue merci, onde evitare il pericolo di offendere l'imparzialità , a cui i neutrali sono tenuti.
Professor Bluntschli
To these authors Professor Bluntschli has added the weight of his authority.
The opinion of Galiani has, however, been again revived by two or three writers in our own days.
Sir R. Phillimore
Among these, Sir Robert Phillimore, in his work on International Law, vol. iii, § ccxxx, speaking " as to the permitting the sale of munitions of war to a belligerent within the territory of the neutral," writes:
If the fountains of international justice have been correctly pointed out in a former volume of this work, and it be the true character of a neutral to abstain from every act which may better or worsen the condition of, a belligerent, the unlawfulness of any snch sale is a necessary conclusion from these premises.
What does it matter where the neutral supplies one belligerent with the means of attacking another? How does the question of locality, according to the principles of eternal justice and the reason of the thing, affect the advantage to one belligerent or the injury to the other accruing from this act of the alleged neutral? Is the cannon or the sword, or the recruit who is to use them, the less dangerous to the belligerent because they were purchased, or he was enlisted, within the limits of neutral territory? Surely not. Surely the locus in quo is wholly beside the mark, except, indeed, that the actual conveyance of the weapon or the soldier may evidence a bitterer and more decided partiality, a more unquestionable and active participation in the war.
M. Hautefeuille, who, as we have seen, not only refuses to admit vessels equipped for war, if not armed, into the list of contraband of war, but also holds that they are legitimate articles of neutral commerce, nevertheless maintains that what is called tltt passive trade of the neutral in articles of warlike use is inconsistent witli neutrality. His reasoning is as follows :
OPINIONS OF SIR ALEXANDER COCKBURN
The indirect claims at first insisted on by the Government of the United̢۬ States being now out of the question, we have to deal with the claims̢۬ for damages, " growing out of the acts " of certain specified vessels, as̢۬ to which it is alleged that, by reason of some default on the part of the̢۬government of Her Majesty the Queen of England, these vessels were ̢۬enabled to take and destroy ships and cargoes belonging to citizens of̢۬ the United States.
Causes of complaint brought forward by the United States
The causes of complaint put-forward by the United States Govern̢۬ernment may be classed under the following heads:
1. That by reason of want of due diligence on the part of the 
British government, vessels were allowed to be fitted out and equipped, in ports of the United Kingdom, in order to their being employed in making war against the United States, and, having been so equipped, were allowed to quit such ports for that purpose.
2. That vessels fitted out and equipped for the before-mentioned purpose, in contravention of the foreign-enlistment act, and being therefore liable to seizure under that act, having gone forth from British ports, but having afterward returned to them, were not seized as they ought to have been, but, having been allowed hospitality in such ports, were suffered to go forth again, to resume their warfare against the commerce of the United States.
3. That undue favor was shown in British ports to ships of war of the Confederate States in respect of the time these ships were permitted to remain in such ports, or of the amonnt of coal with which they were permitted to be supplied.
That vessels of the Confederate States were allowed to make British ports the base of naval operations against the qhips and commerce of the United States.
Owing to all or some one or other of these causes, vessels of the Confederate States were euabled, it is alleged, to do damage to the commerce of the United States; and compensation is claimed in respect of the damage so done.
The treaty of Washington
The treaty of Washington, from which our authority is derived, lays down, for our guidance in dealing with and deciding on these claims, certain rules as to the obligations of Great Britain as a neutral state, which for the purpose of this arbitration are to be taken to have been binding on it.
Not, indeed, that the British government admits that these rules form part of the law before existing between nations. On the contrary, it is expressly stated that "Her Britannic Majesty has commanded her high commissioners and plenipotentiaries ta declare that Her Majesty's government cannot assent to the foregoing rules as a statement of principles of international law which were in force at the time when the claims mentioned in Article I arose, but that Her Majesty's govern-
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ment, in order to evince its desire of strengthening the friendly relations between the two countries, and of making satisfactory provision for the future, agrees that, in deciding the questions between the two countries arising out of those claims, the arbitrators should assume that Her Majesty's government had undertaken to act upon the principles set forth in these rules. And the high contracting parties agree to observe these rules as between themselves in future, and to bring them to the knowledge of other maritime powers, and to invite them to accede to them."1
The rules in question are as follows:
A neutral government is bound—
First. To use due diligence to prevent the fitting oat, arming, or equipping within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to . cruise or to carry on war against a power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use.
Secondly. Not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men.
Thirdly. To exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties.1
With these rules before it, the tribunal is directed to determine as to each vessel, "whether Great Britain has, by any act or omission, failed to fulfill any of the duties set forth in such rules, or recognized by the principles of international law not inconsistent with such rules."
Difficulty arising from the treaty
The effect of this part of the treaty is to place this tribunal in a position of some difficulty. Every obligation for the non-fulfillment of which redress can be claimed presupposes a prior existing law, by which a right has been created on the one side and a corresponding obligation on the other. But here we have to deal with obligations assumed to have existed prior to the treaty, yet arising out of a supposed law created for the first time by the treaty. For we have the one party denying the prior existence of the rnles to which it now consents to submit as the measure of its past obligations, while the other virtually admits the same thing; for it " agrees to observe the rules as between itself and Great Britain in future, and to bring them to the knowledge of other maritime powers, and invite them to accede to them "—all of which would plainly be superfluous and vain if these rules already formed part of the existing law recognized as obtaining among nations.
It is, I cannot but think, to be regretted that the whole subject-matter of this great contest, in respect of law as well as of fact, was not left open to us, to be decided according to the true principles and rules of international law in force and binding among nations, and the duties and obligations arising out of them, at the time when these alleged causes of complaint are said to have arisen.
From the history of the treaty of Washington we know that it was proposed by the British commissioners to submit the entire question, both as to law and fact, to arbitration; bnt the commissioners of the United States refused to "consent to submit the question of the liability of Great Britain to arbitration unless the principles which should govern the arbitrator in the consideration of the facts could be first agreed upon." In vain the British commissioners replied that they "should be willing to consider what principles should be adopted for observance in
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future, but that they were of opinion that the best mode of conducting an arbitration was to submit the facts to the arbitrator, and leave him free to decide upon them after hearing such arguments as might be necessary." The American commissioners replied that they should be willing to consider what principles should be laid down for observance in similar cases in future, but only with the understanding that " any principles which should be agreed upon should be held to be applicable to the facts in respect to the Alabama claims." The British commissioners and government gave way, possibly without "fully appreciating the extent to which the principles of which they were thus admitting the application would be attempted to be carried in fixing them with liability.
How this apparent anomaly arose is plain. Her Majesty's government, animated by a high sense of justice and by an earnest desire of conciliation, were anxious to remove every possible cause of complaint or sense of wrong which the Government and people of the United States had, or believed themselves to have, against Great Britain as to matters arising out of the civil war; they were willing that if, through any errrors or shortcomings on the part of British authorities, injury had been caused to American subjects, full redress should be afforded; they were willing that the question should be determined by an independent and impartial tribunal; and though they would naturally have preferred that the matters in dispute between the two countries should be decided by what they believed to be the rules of international law governing the case, rather than that, if the decision should be in favor of Great Britain, the American people should feel that the contest had not been determined according to what, in their view, were the principles applicable to it, Her Majesty's Government gave way to the desire of that of the United States, and consented that the rules by which it was agreed that the duties and obligations of the two nations should be governed in any future case should be taken to be the measure of the past obligations and duties of Great Britain with reference to the subject-matters of the dispute.
It was a great and generous concession, and though the effect of it might be a pecuniary sacrifice on the part of Great Britain, it was one which was cheerfully made on the one side, and I trust will not fail to be appreciated in the same generous spirit on the other.
If, however, the differences which have unhappily arisen between the United States and Great Britain were to be determined, not according to the rules of international law which the arbitrators to be agreed ou should determine to be applicable to the case, but according to rules to be settled by the contending parties themselves, then I cannot but wish that the framers of this treaty had been able to accomplish the difficult task, now left to us, of defining more precisely what is meant by the vague and uncertain term "due diligence," and had also set forth the further " principles of international law, not inconsistent with the rules laid down," to which reference is made as possibly affecting the liability of Great Britain.
To some of the heads of complaint hereinbefore referred to, this observation does not indeed apply. Whether vessels, which might originally have been seized, should have been so dealt with when they reentered British ports, or whether they were protected by the commissions they had in the mean while received from the confederate government ; whether confederate ships of war were permitted to make British ports the base of naval operations against the United States; whether the accommodation afforded to them in British porta consti-
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toted a violation of neutrality, for which Great Britain can be held liable, are questions which are left to be decided and must be decided according to the rules of international law alone.
But when we have to deal with the far more important question of the liability of Great Britain by reason of the omission to use "due diligence" to prevent the equipment of vessels of war in her ports, as required by the treaty, we find nothing in the treaty to direct us as to the meaning of that term, especially as regards the degree of diligence which is to be understood to be required by it.
Left in this difficulty, we must endeavor to determine for ourselves the extent and meaning of the "due diligence" by which we are to test the alleged shortcomings of the government of Great Britain. For, it is plain that the standard of " due diligence " ought not to be left to the unguided discretion of each individual arbitrator. The municipal law of every country, wherever diligence is required by the law, whether in respect of obligations arising out of contract, or in regard to the due care which every one is bound to exercise to avoid doing harm to the persons or property of others—ne alienum laedat—prescribes some standard by which the necessary degree of diligence may be tested.
Dealing here with a matter appertaining to law, it is to juridical science that we must look for a solution of the difficulty. And since we have to deal with a question of international law, although, it is true, of an exceptional character, it seems to me that it will be highly useful to endeavor to form a clear view of the reciprocal rights and duties between belligerents and neutrals, created by international law generally, and of the diligence necessary to satisfy the obligations which that law imposes. I cannot concur with M. Staempfli, that, because the practice of nations has at times undergone great changes, and the views of jurists on points of international law have often been and still are conflicting, therefore there is no such thing as international law, and that, consequently, we are to proceed independently of any such law—for such is the effect of his reasoning, if I understand it rightly—according to some intuitive perception of right and wrong, or speculative notions of what the rules as to the duties of neutrals ought to be. It seems to me that when we shall have ascertained the extent to which a neutral state is responsible, according to the general law of nations, for breaches of neutrality committed by its subjects, and the degree of diligence it would be called upon to exercise under that law, in order to avoid liability, we shall be better able to solve the question of what constitutes due diligence in the terms of the treaty of Washington. That treaty may have admitted a liability in the respect of the equipment of ships where none existed by international law before, as I certainly think it has: but the degree of diligence required of a neutral government to prevent breaches of neutrality by its subjects must be determined by the same principles, whatever may be the nature of the particular obligation.
Besides the necessity of thus considering the relation of belligerents and neutrals with reference to the subject of " due diligence,"" we have further, in order to satisfy the exigency of the articles of the treaty, to consider whether, besides in the omission of "due diligence," Great Britain has failed to fulfill any duty imposed by any principle of international law not inconsistent with the rules laid down. It is clear also that, with reference to the other heads of complaint, our decision mnst necessarily depend entirely on the rules of international law applicable thereto. It seems to me, therefore, desirable, in the first place, to endeavor to take an accurate survey of the law by which the relative
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rights of belligerents and neutrals are fixed and determined, as essential to the solution of the questions we are called on to decide.
I proceed, therefore, to consider the subject of neutral obligations in time of war.
Elements of neutrality
Neutrality may be said to be the status of a country relatively to two others which are at war with one another, while it remains̢۬ at peace with both, and gives assistance to neither.
The last-mentioned condition is plainly an essential element of that which goes before it; for, to give assistance to either of the belligerents would be indirectly to take a part in the war, and would afford a sufficient reason to the one whose enemy was thus assisted, for having recourse to force to prevent such assistance from being given.
Obligations of the neutral state
It is obviously immaterial in what form the assistance is rendered, so long as its purpose and effect is to add to the means of the belligerent for the purpose either of offense or defense. Troops, men, horses, ships, arms, munitions of war of every kind, money, supplies—in short, whatever can add to the strength of the belligerent for the purpose either of attack or defense—are things that cannot be supplied by a neutral state to either belligerent without forfeiting the character of neutrality and the rights incidental to it.
In like manner the neutral sovereign cannot allow the use of his territory for the passage of troops of either belligerent, still less allow it to be used by either as a base of hostile operations. He cannot lend his ships for the transport of troops, arms, or munitions of war, or even for the transmission of dispatches. Whatever restrictions, in the exercise of his territorial rights, he imposes on the one belligerent, he most impose on the other also; for restraints—however lawful and proper in themselves—enforced as against the one, dispensed with as regards the other, are indirectly assistance given to the one so favored.
Obligations of  the subjects of a neutral state
Whatever obligations attach by the general principles of the law of nations to the state or community, as a whole, are equally binding on its subjects or citizens. For the state or community is but the aggregate of its individual members, and whatever is forbidden to the entire body by that law, is equally forbidden to its component parts. In this sense, and iu this sense only, can it be said that international law—in other words, the common law of nations— forms part of the common law of England; for the greater part of the rules of international law, by which nations now consent to be bound, are posterior in date by many centuries to the formation of the common law of England. Nevertheless, Great Britain forming part of the great fraternity of nations, the common law adopts the fundamental principles of international law, and the obligations and duties they impose, so that it becomes, by force of the municipal law, the duty of every man, so far as in him lies, to observe them; by reason of which any act done in contravention of such obligations becomes an offense against the law of his own country.
Liability of the state for acts of its subjects
But the subject who thus infringes the law of his own country by violating the neutrality which that law enjoins him to maintain, is amenable for his offense to the law of his own country alone, except when actually taking part in the war as a combatant, when, of course, he is liable to be dealt with according to the laws of war. The offended belligerent has otherwise no hold on him. International law knows of no relations between a state and the .subjects of another state, but only of those which exist between state and state. But this being so, the belligerent, against whom a breach of neutrality has been committed by the subject of a neutral
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state, as distinguished from the state itself, may have a right to hold the state responsible, and to look to it for redress. For the state, that is, the community as a whole, is bound to restrain its individual members from violating obligations which, as a whole, it is bound to fulfill.
Not, however, that the responsibility of the state for the acts of its subjects is absolute and unlimited. Reason has set bonnds to a responsibility which would otherwise be intolerable. For it must be remembered that the consequence of a violation of neutrality is the right of the offended belligerent to treat the offending neutral as an enemy, and declare war against him. He is not bonnd to accept pecuniary amends as an alternative.
Now, reason points out that the government of a country can only be held responsible for breaches of neutrality committed by its subjects, when it can reasonably be expected to prevent them.
There are things which a government can prevent, and others which it cannot. It can prevent things that are done openly and in defiance of law. The open levying of men, and expeditions departing from its territory by land or water, are things which a government would properly be expected to, prevent, and for which, if not prevented, it would be answerable.
But a government could not be so held in respect of things it cannot prevent; such as the conduct of individual subjects in enlisting or serving in the land or sea force of a belligerent, or things done clandestinely or surreptitiously, so as to elude observation or detection, notwithstanding the exercise of proper diligence to prevent the law from being broken. But then the exercise of such diligence is part of the duty of a government, and the condition of its immunity. If this diligence has been wanting, a belligerent has just cause to hold the neutral state responsible for wrongful acts done by its subjects, in violation of neutrality, and from which he, the belligerent, has suffered. We are thus brought face to face with the all-important question of what is this "diligence" which a government is thus bound to exercise to prevent breaches of neutrality by its subjects. I shall endeavor presently to grapple with that question; but I prefer first to complete my survey of the relative rights and obligations of belligerents and neutrals.
And as the principal complaint against the British government relates to vessels of war furnished by its subjects to the Confederate States, I shall, in the first place, apply myself to the question how far the subjects of a neutral state can, consistently with the obligations of neutrality, supply a belligerent with articles of warlike use in the way of trade and business.
Rights of neutral subjects in respect of trade
For, thus far, we have been dealing with assistance rendered to one belligerent against another, animo adjuvandi, for the direct purpose of enabling him to overcome or resist his opponent. Very different considerations present themselves when we have to deal with assistance furnished to a belligerent, not animo adjuvandi, with the object of enabling him to overcome his enemy, but animo commercandi—in the way of trade and commerce.
Difference between a State and its subjects in regard to trade
Here a broad and important distinction between the state and its subjects presents itself. The former, generally speaking, cannot, consistently with neutrality, under any circumstances, supply to one of two belligerents articles which may be of use to him incarrying on war. For, as governments do not engage in trade, save in exceptional cases of very rare occurrence—as, for instance, when a government disposes of ships for which it has no use— nothing supplied by a government to a belligerent can be supplied
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otherwise than animo adjuvandi; that is, for a purpose inconsistent with neutrality. But its subjects stand, in this respect, on a very different footing. The subject, indifferent to both the belligerent parties, may be willing to sell to either articles of warlike use in which he is in the habit of dealing. Assistance, and sometimes very material assistance, is thus afforded to a belligerent, who, by this means, is enabled to carry on war. Is assistance thus afforded, not animo adjuvandi, but animo commercandi, a breach of neutrality, or is it to be considered as within the right of the neutral subject?
Now, the subjects of a neutral state having in time of peace the right of carrying on trade with a belligerent, on what ground of reason or justice, it may be asked, should their right of peaceful trade be taken away, and their interests, thus be damaged by reason of a war which they have had no share in bringing about, and in which they have no concern? The conditiou of neutrality, in not supplying anything to either belligerent with the object of assisting him against the other, or which would not be as readily supplied to the other, being observed, what reason can be suggested why the rights of the neutral in his relations with either belligerent, as they existed before war broke out, should be disturbed or altered?
An Italian jurist thus writes:
II fatto della vendita degli oggetti di contrabb.indo avvenuta in territorio neutrale e opera dello stato etesso nella sua qnalita di persona pubblica, o invece 6 l'operato di siioj pvivati cittadiui, cbe fanno di cio la loro abitaale professione. Nel primo oaso e fuor di dnbbio cho vi sarebbe motivo di lagnanza per parte drtino dei belligeranti, poiche Don entra negli officii dello stato l'attendere a privati mercimonii, ed ogai sno atto ba an valore internazionale o in senso di nn diritto o in senso
Se gli antori che hanno disensso la presents questioue avessero ritennta la capitate diflerenza che passa tra gli atti pubbhei del governo e quelli dei privati cittadini, non avrebbero'al certo classincato come atti contrari alia condizione neutrale la vendita fatta in territorio nentro da privati cittadini di armi e munizioni da guerra.1
Effect of war on neutral trade
Nevertheless, it is certain that the rights of a nation, as regards trade with another nation, do undergo very considerable modifications, when such second nation engages in war with a third; and when it is said by some writers that neutrality is only the prolongation of the state of peace between the neutral and the belligerent, this language must be taken with considerable allowance. For, it is certain that, as regards trade and commerce, the rights of the peaceful neutral undergo very serious diminution. By the admitted rules of international law, a belligerent may seize articles contraband of war iu transit by sea from the neutral to his enemy. By blockading his enemy's port he may shut the commerce of the neutral even in articles not capable of being applied to warlike use. True, say those writers who advocate the rights of neutrals against belligerents; but if the rights of the neutral subject in respect of trade had been regulated according to natural law, or, to speak more philosophically, according to the law which reason points out as for the common benefit of all, those rights would have remained undisturbed and unaffected by the wars of others with whom his own country remained at peace. But between distant nations trade can be carried on only by sea. The nations most powerful at sea have generally been those who have waged war on the ocean.
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In such wars they have sought to weaken their adversaries by crippling their commerce, and to effect that object have imposed restraints on peaceful states less powerful than themselves. Some countries have even gone so far, in early times, as to interdict all commerce whatever with nations with which they were at war. The sense of mankind, it is true, revolted against pretensions so extravagant, and after a time the restraints which belligerents were entitled to impose on neutral commerce were rendered less oppressive. But they still bear the impress of their origin, as having been imposed by the strong upon the weak. They are manifestly in derogation of the common right of peaceful trade which all maritime nations enjoy in time of peace, but which is thug made to submit to restraint in order to serve the purposes of those by whom the peace of the world is disturbed.
Let us see how these restraints on neutral commerce became settled in time. As they existed till a very recent period, according to the general practiee of nations, they were as follows:
1. Though the belligerent might resort to the neutral territory to purchase such articles as he required, even for his use in war, and the neutral in selling him such articles would be guilty of no infraction of neutrality, yet, in regard to things capable of being used in war, and which thenceforth received the appellation of " contraband of war," if, instead of the belligerent himself conveying them, the neutral undertook to convey them, such articles, if intercepted by the adversary, though the property of the neutral in them had not been transferred to the belligerent, were liable to be seized and became forfeited to the captor. If £be article was of a doubtful character, ancipitis usus, that is, one that might be applied to purposes of peace or of war, the liability of seizure depended on whether the surrounding circumstances showed that it was intended for the one use or the other.
2. If either belligerent possessed sufficient force at sea to bar the access to a port belonging to his enemy, he was entitled to forbid the neutral all access to such port for the purpose of trade, however innocent and harmless the cargo with which his ship might be charged, under the penalty of forfeiting both ship and cargo.
3. The neutral was prohibited from carrying the goods of a belligerent, such goods not beiug protected by the neutral flag, but being subject to seizure.
4. Besides this, according to the practice of France, the neutral was prohibited from having his goods carried in the enemy's ship, and if the ship was taken the goods became prize.
Lastly, to enforce the rights thus assumed by powerful belligerents, the neutral had further to submit to what was called the right of search, in order that the belligerent might satisfy himself whether goods of the enemy, or goods contraband of war intended for the enemy, were being conveyed in the neutral ships.
By the wise and liberal provisions of the declaration of Paris of 1856, the last two oppressive restraints on the trade of neutrals, mentioned under heads 3 and 4, have, as between most of the leading nations of the world, been done away with. The others remain. America has not as yet formally assented to the declaration of Paris. The two rules in question do not, however, come into play on this occasion.
Blockade and contraband of war
But the two first of the restraints put on neutral commerce occupy a prominent place in the discussions which have occurred in the course of this inquiry. Both of them are manifestly restraints, and restraints of a very serums character, on the natural freedom of neutral commerce. The advantage thus acquired of preventing
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the trade of the neutral in articles of warlike use, at a time when that
trade is the most likely to be profitable to him, and still more that of
preventing it in any shape by the blockading of an enemy's port, is
obviously obtained only at the expense of the peaceful rights of neutral
commerce.Â
The right of blockading a port, and thereby excluding from it neutral commerce of every sort, has been justified by assimilating it to that exercised by the besieger of a city or fortress, in investing it and debarring all access to it. But the analogy is not complete, for the immediate purpose of the besieger is to take the city or fortress, while that of the blockade is, not to capture the blockaded port, but to enfeeble the enemy and diminish his means by the gradual destruction of his commerce, which of course necessarily involves a corresponding loss inflicted on the commerce of the neutral. And though it may be said that, just as the besieger of a city or fortress is in occupation of the territory which surrounds it, and is, therefore, by the law of war, master of such territory and entitled to give laws to all within its ambit, and has thns fall right as well as power to forbid access to it, so the blockading force has occupation of the territorial waters and can exercise a similar right iu respect of them; yet for the most part such occupation is constructive only, and the blockading force is generally in the habit of sending cruisers jar beyond the limits of the territorial waters, to intercept vessels intending to enter the blockaded port.
On whatever ground the right of blockade thus conceded to belligerents may be placed, it is obvious that it is a very serious encroachment on the freedom of the neutral in the peaceful pursuit of commerce.
In M. Calvo's work, " Le droit international," blockade is spoken of as " la plus grave atteinte qui puisse être portée par la guerre an droit des neutres.1"
Fiore says: " Le blocus est odieux et contraire à l'indépendance des peuples neutres; parcequ'il n'empêche pas seulement le commerce de certaines matières déterminées, comme la contrebande de guerre; mais il détruit toute espèce de commerce de quelque nature que ce soit avec les lieux assiégés et bloqués."2
Nor must it be forgotten, with respect to the trade carried on in defiance of a blockade, that the neutral owes nothing to the blockading belligerent, who, for his own purposes, thus seeks to shut out the innocuous commerce of the neutral with his enemy, regardless of the loss and injury he is thereby inflicting on him.
Contraband of war
The right to intercept articles of warlike use has been for the most part treated by earlier writers on international law as an admitted encroachment on the nentral in respect of freedom of trade. It has been justified on the score of the necessity in which the belligerent captor is placed, of preventing that which will be used to his own hart from reaching his adversary; or as arising from the law of self-defense, which gives to the belligerent the right of stopping things which may be used against him, while on their way to his enemy, and, furthermore, of confiscating them to hia own use as a penalty on the neutral for having intended to convey them to the enemy.
Looked at from this point of view, it is said that 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
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between the power of belligerents and the rights of neutrals; and, if this species of trade can be said to be unlawful, it is only so sub mode, it being left free to the neutral to pursue it, subject always to the right of the belligerent to seize it during its transit to his enemy, if he can. " The right of the neutral to transport," says that great jurist Chancellor Kent, " and of the hostile power to seize, are conflicting rights, and neither party can charge the other with a criminal act."1
Different view
A different view respecting the trade of the neutral in articles of contraband of war has, however, been maintained in our day. M. Hautefeuille, and the writers of his school, look upon the supplying of articles of contraband of war by the neutral in the way of trade as inconsistent with the duty of neutrality, which prohibits the rendering of assistance to a belligerent for the purpose of a war in which he is engaged, extending the rule to articles of warlike use supplied in the way of trade as much as to those furnished gratuitously.
According to this view, the neutral thus guilty of a breach of the first principle of neutrality justly incurs the penalty of his transgression in the confiscation and loss of his property.
This doctrine is open, however, to the objection that it is inconsistent with the practice of nations, according to which this species of trade-has never been treated as a breach of neutrality in the full sense of the term. It wholly fails to account for or justify the right of blockade.
But the importance of this difference in the views of publicists will be more sensibly felt when we proceed to deal with the subject of the trade of the neutral with the belligerent in the country of the neutral.
No obligation on neutral government to prevent trade in contraband of war, or with blockaded ports
One thing is quite clear, and must not be lost sight of: Neither the trade in contraband of war nor that carried on in defi- Ko Mit,Uoâ€Ã…¾ 0â€Ã…¾ ance of a blockade constitute, practically, any violation of E-JEUS'SSTS neutrality, so far as the government of the neutral trader is concerned. Scarce any neutral government has ever attempted to prevent its subjects from carrying on such trade; no neutral government was ever held responsible, as for a breach of neutrality, for such trade carried on by its subjects. This is a point as to which there has been no difference of action among governments, or difference of opinion as to the duty of governments among writers on public law. It is one of those things which, on the part of its subjects, a government, according to the existing practice of nations, is not called upon to prevent. It is one of those things which the belligerent, who, in furthering his own purposes is indifferent to the loss he inflicts on the neutral, nfust submit to if he is unable to prevent it, and for which he is not entitled to hold the neutral state responsible.
Speaking of the transport of articles contraband of war, M. Ortolan
 states the law most correctly:Â
Si c'est l'état neutre lui-même qui fait opérer ce transport, soit qu´il le fasse gratuitement, soit qu'il en recoive le prix, il devient auxiliaire de la lutte, et par conséquent il rompt la neutralité. La chose change si ce sont les sujets de cet état qui, sans appui de leur gouvernement, font de ce même transport un objet de leurs opérations commerciales. Une puissance qui reste neutre n'est pas obligée de défendre ce commerce a ses sujets, encore moins de les punir pour l'avoir fait; seulement elle ne peut le couvrir de sa protection. En d'autres termes, le pavilion ne couvre pas les merchandises de contrebande de guerre, non pas même dans le cas où ces marchandises appartiennent à des neutres.1
Ships of war and coals
Among the various articles coming under the denomination of contraband of war, according to the general principles of international law, two more particularly interest us on the present
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occasion-ships of war and coals. Both are excluded from the category of contraband by M. Hautefenille, who refuses to recognize as such anything which is not in its actually existing state ready to be used for attack or defense. The following passages from his work, "Des droits et des devoirs des nations neutres," explain the views of the author on the subject of ships, which, till armed, he refuses to consider contraband of war, and which, whatever the construction, when unarmed, he holds to be objects of lawful commerce:
Je ne puis comprendre qu'un bâtiment, quelles que soient sa grandeur, sa forme, sa destination, soit un objet de contrebande de guerre. Le navire n'est pas propre à la guerre, préparé pour servir exclusivement aux opérations militaires, apte à étre employé à ces opérations, immédiatement et sans aucun changement, sans aucune addition. Lorsqu'il est dépourvu des canons, des munitions, des armes et des hommes qui doivent les employer, ce n'est pas une machine de guerre; c'est un véhicule plus ou moins grand, plus on moins solide, mais ce n'est qu'un véhicule. Pour lui donner les qualités spéciales et exclusives qui déterminent le caractère de contrebande de guerre, il est necessaire de transporter a bord des canons, des armes, des munitions, en un mot, tout l'attirail du combat. C'est alors seulement que le bâtiment devient, non une machine de guerre, mais une machine portant des instruments de guerre et susceptibles de nuire, par cette circonstance seulement, an belligérant. Mais la machine elle-même, mais le véhicule dénué de son armement, ne peut étre réputé  nuisible. Au reste, il faut convenir que ce commerce est peu fréquent, et la meilleure preuve que je puisse donner de l'innocuité de ce négoce est le silence du droit secondaire à son égard.1 .
Les bâtiments non armés, construits dans les ports neutres et vends aux nations engagés dans les hostilités, quelles que soient leur force, la nature de leur construction, sont également objets d'un commerce licite. lis doivent étre régis par la règle générale, qui est la liberté entière du commerce, entre les nations neutres et les deux belligérants.1
As to coal, M. Hautefeuille expresses himself as follows:
La houille est sans doute un auxiliaire indispensable des machines, mais elle ne saurait être considérée comme un instrument direct et exclusif de guerre; bien loin de là , les usages pacifiques auxquels elle est employée sont beaucoup plus important que ceux qui résultent de I'Etat de guerre; et la consommation faite pour ces usages pacifiques est beaucoup plus considérable que celle nécessité par les hostilités. D'après les règles du droit primitif, la houille est donc une denrée dont le commerce doit toujours rester libre.
Je ne saurais prévoir comment les traités à intervenir entre les peuples navigateur trancheront cette question; mais ce que je puis affirmer c'est que la houille, d'après le droit primitif, ne fait pas partie de la contrebande; c'est que la loi secondaire ne pent changer la nature des objets, ni leur donner un caractère qu'ils n'ont pas, d'après les principes qu'elle est appelée à appliquer, mais non à modifier.2
But the views of this eloquent and learned but theoretical author on this subject are not shared by other writers. Galiani, Hiibner, (the champion of the rights of neutrals,) Martens, Tetens, Piantanida, Rutherford, Lord Stowell, Chancellor Kent, Heffter, in his able work, " Das europaische Volkerrecht der Gegenwart," include ships among the things which are contraband of war. Among later writers, M. Ortolan and Sir Robert Phillimore place both ships and coal in the list of articles of contraband. I entirely concur in thinking that a ship adapted and intended for war is clearly an article of contraband. Such a ship is, in fact, a floating fortress, and, when armed and manned, becomes a formidable and efficient instrument of warfare. Coal, too, though in its nature ancipitis usus, yet, when intended to contribute to the motive-power of a vessel, must, I think, as well as machinery, be placed in the same category as masts and sails, which have always been placed among articles of contraband, except by M. Hautefenille, who, as has been stated, insists that nothing is to be considered as contraband except what is capable of being immediately applied to the purpose of destructive warfare.
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Passive commerce of the neutral
It is perfectly clear, though I fear it has not always been kept in view iu the course of these discussions, that, with the liability to the seizure and loss of the cargo, (in some instances, it is said, of tlhe ship,) if he transmits contraband of war to the enemy of the belligerent captor, (and to the loss both of ship and cargo if he attempts to force a blockade,) ends, according to the existing practice of nations, all restraint on the trade and commerce of the neutral. In his own country, in his own markets, iu his own factories, the neutral may, according to the practice of nations, sell articles to the belligerent which, if sent by sea, would be contraband of war. Theoretical writers are not, indeed, of one mind on this subject. "While the great majority of authors are agreed as to the right of the neutral to sell, in the way of trade, to the belligerent resorting to his market, whatsoever the latter desires to buy, if the neutral has it to sell, whether the article be of an innocent character or contraband of war in its most destructive form, a few authors have recently written in a different spirit.
No writer on international law before Galiani had ventured to assert that the neutral was prohibited from selling, in his own country, to a belligerent, articles which, if sent out of his country by sea, would be liable to siezure as contraband of war. His doctrine to that effect was vigorously refuted by his two distinguished countrymen, Lampredi and Azuni, aud was tor a time abandoned as untenable; but it has been revived in our day. Let us review the leading authorities. The question is not only of interest to the jurist, but one which will be fouud to be important to some of the decisions of this tribunal.
Lampredi
Lampredi, in his work on neutral commerce, refutes the opinion of Galiani. On the general subject, ( I quote from Peuchets' French translation, not having the original before me,) he writes as follows:
Lorsqu'une fois l'on a établi la seule loi que les peuples neutres doivent observer pendant la guerre, il devient inutile de demander quelles doivent être les limites du commerce qu'ils font en conséquence de leur neutralité, parcequ'on peut répondre qu'il n'en doit avoir aucune, et qu'ils peuvent le faire de la même manière qu'ils le faisaient en temps de paix, observant seulement une exacte impartialité pendant tout le temps de la guerre. Jl n'y aura done aucune espéce de marchandises qu´ils ne puissent rendre et porter aux belligérants et l´on ne pourra pas les empêcher de leur vendre ou louer des navires, pourvu qu'ils ne refusent point à l'un ce qu'ils accordent à l'autre. Devant et pouvant suivre légitinement leur commerce comnme en temps de paix, il ne doit y avoir aucune distinction de marchandises, d'argent, d'armes, et d'autres munitions de guerre: la vente et le transport de ces divers objets dans les places des belligérants doivent être permis, et ne point porter atteinte à la neutralité, pourvu qu'il n'y ait ni faveur, ni préférence, ni esprit de parti.1
In chapter v, page 57, he treats the question whether neutrals may sell every kind of merchandise within the neutral territory to a belligerent, as one which no jurist anterior to Galiani had ever thought of bringing into controversy, all their discussions being confined to the carriage of contraband to the enemy. It is not, he explains, till they have left the neutral territory that articles, though of warlike character, assume the character of contraband. In chapter vii, page 72, he says :
Le caractère de contrebande ne vient done pas, aux marchandises, de l'usage qn'on peut en faire dans la guerre, mais de tout autre source. Aussi longtemps qu'elles sont sur le territoire neutre,elles ne diffèrent pas des autres marchandises; elles s'y vendent et s'y achètent de la meme manière et sans aucune différence. Deux circonstances font prendre à ces marchandises le caractère de contrabande: 1, qu'elles soient passées à la puissance de l'ennemi, ou à moins destinèes à y passer ; 2, qu'elles soient sorties du territoire neutre. Alors elles deviennent choses hostiles, res hostiles; elles prennent le caractère de marchandises de contrebande ; et si elles sont trouvées hors de toute juridiction souveraine, comme, par exemple, si l'on les trouvait en pleine mer, elles peu-
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vent être légitimement arrêtées et confisquées par l'ennemi, quel que soit le pavilion qui les couvre, non pas parce que ce soit des instruments où provisions de guerre, mais parce que ce sont des choses appartenants a l'ennemi, où au moins parce qu'elles sont destinées à devenir sa propriété et à accroître ses forces. D'où il résulte que le souverain qui permet, sur son territoire, le commerce libre de toutes sortes d´objet ne passe pas les droits de souveraineté, et les puissances belligérantes ne peuvent s'en plaindre ni l'accuser de donner la main à la vente des marchandises de contrebande, qui, sur son territoire, ne peuvent jamais avoir ce caractère, et ne peuvent en porter le nom que lorsqu'elles sont devenues ou destinées à devenir la propriété de l'ennemi, et sorties duterritoire où elles ont été achetées.
In another work Lampredi, speaking of neutrality, says:
Et quia neutrius partis esse debet, et a bello omnino abstinere, neutri etiam suppeditabit quae directe ad bellum referuntur. Suppeditare hic loci transvehere ad alterutrum hostem significat; nam si qua gens instrumenta bellica, et coetera supra memorata utrisque bellantibus aequo pretio veluti merces vendat, neutralitatem non violat. Ad hanc necessariam mercaturtae distinctionem animum non advertisse eos, qui de hac retam prolixe scripserunt, manifeste patet; maxime enim inter se differre videntur exportatio mercium ad hostem meum ab amico vel neutro populo facta, et eorum venditio, quae ad bellum necessaria esse possunt.1
Azuni
Azuni, who wrote shortly after Lampredi, maintains the same doctrine. In his work "Système universel de principes de droit maritime," (ch. ii, art. 3,) he says:Le commerce général passif, ou la vente impartiale sur le propre territoire des neutres, de marchandises, denrées, ou manufactures, de toute espèce, sera tonjours permis, pourvu que le souverain n'ait pas fait un traité particulier avec un des belligérents dont les sujets viennent faire des achats et des provisions sur le territoire neutres et qu'il ne se mêle pas des achats, des ventes, et des autres contrats qui transmettent la propriété, qu'il n'ordonne pas qu'on remplisse les magasins de provisions de guerre, et ne fasse pas mettre ses navires à la voile pour les transporter sur le territoire du belligérant. En protégeant également le commerce de son pays, en permettant à ses sujets de continuer leur commerce de la même manière et avec la même liberté qu'avant la guerre, il ne fait qu'user de droits incontestables, qui ne peuvent être limités que par des conventions spéciales, expressément ou tacitement faites.
After combating the reasoning of Galiani, he adds:
II est nécessaire que je répète ici le principe incontestable que j'ai précédemment rapporté, qu'en suivant le droit conventionnel de l'Europe, les neutres ne peuvent porter les choses qui sont spécialement propres à la guerre, et qui y sont directement employés, mais qu'ils peuvent sans inconvénient, selon le droit universel des gens, les vendre comme marchandise sur leur propre territoire à quiconque se présente pour les acheter, puisqu'ils le font sans partialité, et sans montrer de faveur plutôt pour une partie belligérante que pour l'autre.
Reddie, in his " Researches Historical and Critical in Maritime and International Law," cites these views with concurrence and approbation.
In Wheaton's History of International Law, the author speaks of the refutation of Galiani by Lampredi as superfluous, as an "idle question." Mass6, in his work " Le droit commercial dans ses rapports avec le droit des gens," after maintaining the right of the belligerent to intercept contraband, adds :
Massé
Massé, in his work " Le droit commercial dans ses rapports avec le droit des gens," after maintaining the right of the belligerent to intercept contraband, adds :Mais la thèse change s'il s'agit d'un commerce passif. S'il est défendu au neutre de porter des armes et des munitions aux belligérants, parcequ'alors il devient l'auxiliaire de l'un et l'ennemi de l'autre, il ne lui est pas défendu de vendre impartialement sur son territoire des objets nécessaires à la guerre, parceque son territoire est ouvert à tous, que tous peuvent renir y chercher ce dont ils ont besoin, et que le neutre qui se borne à vendre chez lui, à la différence de celui qui porte ses marchandises au belligérent, n'est pas tenu de rechercher qui les lui achète, pour qui elles sont achetées, et quelle est leur destination ultérieure. C'est alors qu'il est absolument vrai de dire que les neutres peuvent continuer pendant la guerre le commerce qu'ils faisaient pendant
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la paix, et que la neutralité est la continuation d'un état antérieur qui ne modifie pas la guerre à laquelle le neutre, qui ouvre son marché à toutes les nations, ne prend aucune part directe ou indirecte.1
Again:
Sur un territoire neutre, il n'y a pas de marchandise de contrebande; toutes y sont libres. Elles ne deviennent contrebande qu'au moment où elles en sortent avec direction pour un lieu dont leur nature les exclut. C'est alors qu'elles tombent sous la juridiction des belligérents contre lesquels elles sont dirigées. Jusque-là et tant qu'elles restent en un lieu où elles ne peuvent leur nuire, ils n'ont pas le droit de s'occuper des transactions pacifiques dont elles peuvent être l'objet. Sans doute, la guerre donne une nouvelle impulsion au commerce passif des objets utiles à la guerre; mais cette impulsion n'est pas du fait des neutres, elle est du fait des belligérants, qui, après avoir eux-mêmes produit des circonstances nouvelles, ne peuvent trouver mauvais que les neutres en profitent dans les limites de leurs droits et de leur territoire.2
M.Ortolan
M. Ortolan observes as follows:
C´est seulement lorsque de telles marchandises sont en cours de transport pour une desti
nation hostile qu'elles deviennent contrebande militaire. Lorsqu'un état neutre laisse ses sujets se livrer au commerce passif de ces mêmes objets,
 c´est-a-dire,lorsqu'il permet a tous les belligérant indistinctement de venir les acheter 
sur son territoire pour les transporter ensuite où bon leur semble, à leurs frais et à 
leur risques, sur leurs propres navires marchands, il ne fait pas autre chose que laisser
 s´accomplir un acte licite ; on ne peut pas dire qu'il prenne part à la guerre parce qu'il 
laisse ses ports libres, et parce qu'il conserve à toutes les nations le droit qu'elles avaient 
avant la guerre d'y entrer avec leurs bâtiments marchands pour s'y approvisionner,
par la voie du commerce, des merchandises dont elles ont besoin ; les vendeurs eux-
mêmes ne sont pas responsables de l'usage ultérieur qui sera fait de ces marchandises;
il ne sont pas tenus de connaître ni pour qui elles sont achetes ni la direction qu'on 
leur réserve.
Le droit conventionnel est d'accord avec ces principes; il ne défend pas la vente impartiale faite sur un territoire neutre des marchandises propres à la guerre. Mais si ces secours effectifs en nature, que l'un des combattants vient prendre et exporte à ses propres risques, étaient fournis par l'état neutre lui-même; si, par exemple, des amies, des projectiles, de la poudre étaient tires de ses arsenaaux où de ses manufactures publiques, ce ne serait plus là un commerce privé, et par consequent il y aurait atteinte grave à la neutralité.3
Heffter
Heffter, in his " Völkerrecht der Gegenwart" (I cite from Bergson's 
translation,) p. 315, says:Â
En ce qui concerne les objets de contrebande, la vente faite aux belligérents en territoire neutre ne saurait etre cousidérée comme un acte illicite et contraire aux devoirs de la neutralité ; ce n'est que leur transport qui en rend responsable.
Professor Sandona, of Siena, "Trattato di diritto internazionale moderno," comparing passive with the active commerce of neutrals, says:
Dico adunque, che si crede a torto che faccia opera ad un di presso egualo, chi vende semplicemeute nel proprio paese quanto immediatemente si riferisce ai mezzi di fare la guerra, e chi trasporta questi mezzi sui mercati o nelle piazze dei belligeranti. II primo vende le sue merci nel proprio paese, ove non vi è, stando al puro diritto razionale, alcuna legge che gliene vieti il traffico. E appunto perchè dimora in esso, e niente osta a questo commercio, egli non fa uso che della sua libertà , che d'altra parte finchè rimane nel paese nativo, nessun principe straniero può limitare...... La sola cosa che si può dimandare da lui è questa, che sia disposto a vendere egualmente a chiunque si presenta le sue merci, onde evitare il pericolo di offendere l'imparzialità , a cui i neutrali sono tenuti.
Professor Bluntschli
To these authors Professor Bluntschli has added the weight of his authority.
In his work entitled " Das moderne Völkerrecht," or, as it is called in the French translation, " Le droit international codifié," he writes:
Le fait qu'un état neutre fournit ou laisse fournir à un des belligérants des am ou du matérial de guerre constitute également uni violation des devoirs des neutres.
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Par contre, si des particuliers, sans avoir l'intention de venir en aide à l´un des belligérants, lui fournissent à titre d'entreprise commerciale des amies ou du matériel de guerre, ils courent le risque que ces objets soient confisquées par l'adversaire comme contrebande de guerre; les gouvernements neutres ne manquent pas à leur devoir en tolérant le commerce d'objets qui sont considérés comme coutrebande de guerre. . . .
Celui qui transporte de la contrebande de guerre à l'une des parties belligérantes s'expose à voir ces objets confisqués. Mais l'état neutre n´ pas de motifs de s'opposer a l'expédition de la contrebande de guerre. Dans les discussions de la loi américaine sur la neutralité, le président Jefferson déclara en 1793 que la guerre étrangère ne privait point les particuliers du droit de fabriquer, de vendre ou d'exporter des armes; seulement les citoyens américains, ajoutait-il, exercent ce droit à leurs risques et périls.
The opinion of Galiani has, however, been again revived by two or three writers in our own days.
Sir R. Phillimore
Among these, Sir Robert Phillimore, in his work on International Law, vol. iii, § ccxxx, speaking " as to the permitting the sale of munitions of war to a belligerent within the territory of the neutral," writes:
If the fountains of international justice have been correctly pointed out in a former volume of this work, and it be the true character of a neutral to abstain from every act which may better or worsen the condition of, a belligerent, the unlawfulness of any snch sale is a necessary conclusion from these premises.
What does it matter where the neutral supplies one belligerent with the means of attacking another? How does the question of locality, according to the principles of eternal justice and the reason of the thing, affect the advantage to one belligerent or the injury to the other accruing from this act of the alleged neutral? Is the cannon or the sword, or the recruit who is to use them, the less dangerous to the belligerent because they were purchased, or he was enlisted, within the limits of neutral territory? Surely not. Surely the locus in quo is wholly beside the mark, except, indeed, that the actual conveyance of the weapon or the soldier may evidence a bitterer and more decided partiality, a more unquestionable and active participation in the war.
MM. Pistoye and Duverdy also, in their " Traité des prises maritimes," express, though with less energy than the learned author last mentioned, a like view.Â
M. Hautefeuille
M. Hautefeuille, who, as we have seen, not only refuses to admit vessels equipped for war, if not armed, into the list of contraband of war, but also holds that they are legitimate articles of neutral commerce, nevertheless maintains that what is called tltt passive trade of the neutral in articles of warlike use is inconsistent witli neutrality. His reasoning is as follows :
Cette question a été traitée avec beauconp d´Ã©tendue par Lampredi et par Azuni; la doctrine de ces deux au tours a été combattu par Galiani. Avant d'examiner l´opinion de ces publicistes, il me paraît indispensable de rappeler les bases de la discussion, de poser des principes qui, d'après la loi primitive, doivent la dominer. Ces principes ont déjà été établis. lis peuvent se résumer en deux droits et en deux devoirs. Les droit sont: 1. Liberté et indépendance du peuple neutre dans son commerce, en tempes de guerre, même avec les deux belligérents. 2. Liberté et indépendence absolue du neutre sur son propre territoire. Les deux devoirs sont corrélatifs aux deux droits, il les limitent. Ce sont: 1. L'impartialité; 2. L'abstention de tous actes directs de guerre, et par conséquent de fournir aux belligérents les armes et les munitions de guerre. De ces droits il résulte, sans doute, que la nation pacifique a le pouvoir de commercer librement avec chacun des belligérents, non seulement sur son propre territoire, mais encore partout ailleurs, sans qu'aucun d'eux puisse s'y opposer; mais ce droit est borné par le devoir imposé au neutre de ne fournir, ni à l'un ni à l'autre, des instruments actuellement et uniquement destinés à la guerre.
Cette limite mise par la loi primitive à la liberté des nations, s´Ã©tend-elle à tout le commerce, au commerce passif comme au commerce actif? Le devoir du neutre consiste t-il uniquement à ne pas transporter les objets de coutrébande dans les ports des belligérants; ou au contraire ne prohibe-t-il pas le fait de vendre, de fournir ces objets à ceux qui doivent s'en servir pour fiapper un ennemi? À mes yeux, la réponse à cette double question ne peut être douteuse. Le dovoir imposé aux nations, qui désirent ne pas prendre par aux hostilités, et jouir de la paix au milieu des maux de la guerre, est de ne pas fournir
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des armes aux mains de ceux qui doivent s'en servir poor frapper. La loi naturelle, qui ̢۬impose ce
Please cite as: "Commentary to Trans-Lex Principle , https://www.trans-lex.org/999999"