belligerents there is no obligation to forbid the assistance." 15 Kluber likewise holds that "ordinarily a belligerent does not have the right to require a neutral state to abstain from trade with his enemy" and that "the law of nations does not prohibit neutrals from trading in articles of merchandise which serve the immediate military needs of belligerents, provided there is no design to favor one of the belligerents as against the other.' 16

Geffcken, who considers the subject of trade in arms and war material at greater length than most German writers, concludes that "it is wellestablished by international law that the sale and exportation of contraband by the subjects of neutral states is no violation of their neutral duties." 17 After reviewing at length the opinions of the text-writers, the vast majority of whom pronounce in favor of the legitimacy of such trade, Geffcken remarks that, in view of this array of authority, the contention of the German Government in 1870 that England was bound to prohibit the sale of arms and munitions of war to agents of the French Government naturally excited astonishment.

Among the German jurists who have defended most strongly the right of neutrals to engage in contraband trade may be mentioned Professor von Bar of Göttingen. 18 He criticises Kleen's projet for prohibiting such trade as one which, if made a rule of international law, would injure incalculably not only the commerce of neutrals, but even their manufacturing industry and in a large measure the production of their agriculture, forests and mines, and reduce a considerable part of their population to famine. It would, moreover, he asserts, entail a necessity of surveillance and control over the sale and transportation of merchandise in neutral countries which would be intolerable, necessitate numerous searches by customs officials and impose upon neutral governments obligations and duties which they would find it impossible to enforce. "Thus if a war should break out between Chile and Peru, the Governments of Germany and Austria would be obliged to exercise

15 Manuel de Droit Maritime International (French trans. by Arendt), p. 270.

16 Droit des Gens moderne de l'Europe (French trans. by Ott), Sec. 287.

17 Handel mit waffen und Kriegsmaterial, in Holtzendorff, Handbuch des Völkerrechts, Bd. IV, Sec. 152.

18 In an article entitled, Observations sur la contrebande de guerre, in the Revue de Droit Int., Vol. XXVI (1894), pp. 401 ff.

this exorbitant surveillance, because international duty has no geographical limits." 19 He goes on to say:

The fact that two states engage in war with each other authorizes neither to demand that all the relations which exist between his adversary and a neutral state be suspended, even though the adversary derives an advantage from those relations. If two states go to war, the world is not bound to suspend its customary pursuits in order to prevent one of the belligerents from deriving an advantage or sustaining an injury in consequence of those activities.

The contrary assumption would be to hold that belligerents as such have a right to dominate the rest of the world. What a belligerent may lawfully demand is only that the relations between a neutral and his adversary shall remain as they were before. Consequently, the subjects of neutral states may continue to maintain commercial relations with belligerents as formerly, and if they manufacture arms and munitions, and have before the war, sold them to everybody, they may continue to do so after the war, even to belligerents.' 20 It is wrong, therefore, to denounce, as has often been done, the sale of arms by neutrals to belligerents as a business which pollutes the hands and honor of neutral countries. This phrase has no more force than a tirade launched against a fire insurance company on the ground that it is engaged in a miserable business which draws profit from the misfortunes of others.21

True progress, says von Bar, consists not in prohibiting trade in contraband, as Kleen and Brusa would do, but in abolishing the right of belligerents to interfere with such traffic, leaving to them only the right of blockade. 22

Turning to the argument sometimes advanced that the sale of arms and munitions to belligerents serves only to prolong the evils of war and that a trade the profits of which are drawn from bloody combats which the interests of humanity require to be stopped as promptly as possible is immoral, von Bar pronounces it to be specious as Lorimer had pointed

out

with his usual sagacity when he remarked that the object of war is not a temporary cessation of hostilities but a durable peace, and it was quite unreasonable that a nation should be forced to make peace by refusing

19 In an article entitled, Observations sur la contrebande de guerre, in the Revue de Droit Int., Vol. XXVI (1894), p. 404.

20 Ibid., p. 407.

21 Ibid., p. 410.

22 Ibid., p. 408. This suggestion, he said, had already been advocated by Kluber and Lorimer.

to furnish it with the means of continuing the war. If the end of the war is brought about by the sole reason that one of the belligerents has been prevented from obtaining arms and munitions by purchasing them with its own money, it is not really vanquished and in a later time the quarrel and the war will be renewed.23

27

Among other German and Austrian writers who have considered the subject, the following admit that neutral states are not bound to prohibit their subjects from selling or exporting arms and munitions of war to belligerents: von Liszt, 24 Martens, 25 Lehman, 26 Schmalz,2 Marquardsen, 28 Schramn, 29 Einicke,30 Hold von Ferneck 31 and Saalfeld.32 The German official view was expressed by Herr Kriege at the Second Hague Conference during the discussion of the British proposal to abolish contraband, when he said, "neutral states are not bound to prevent their subjects from engaging in a commerce which from the point of view of belligerents must be considered as illicit," 33 and the German delegation was one of the five which voted against the proposal. Heffter is sometimes quoted 34 in favor of the view that neutrals are bound to forbid the sale of arms and munitions of war to belligerents, but, as Geffcken points out,35 Heffter expresses no such view. What he says is that some neutral governments have believed that they were bound to prevent their citizens from giving aid to belligerents and to 23 In an article entitled, Observations sur la contrebande de guerre, in the Revue de Droit Int., Vol. XXVI (1894), p. 408.

24 Das Völkerrecht, 4th ed., p. 362.

25 Précis de Droit des Gens, Vol. II, Sec. 315.

2 Die Zufuhr von Kriegskonterbanden Waren, p. 53.

"Das Europaische Volkerrecht, pp. 286-7.

28 Der Frent. Fall, p. 37. "If a neutral sells arms or munitions within his own land to agents of a belligerent, the doctrine of contraband does not apply. A neutral state may forbid such traffic through anxiety or the fear of a powerful belligerent, but there is no legal obligation (vorschrift) to do it."

29 Das Prisenrecht in Seiner neusten Gestalt, Sec. 10.

30 Recht und Pflichten der neutralen Mächte in Seekriege, p. 99.

31 Die Kriegskonterbande. See p. 155 for the text of a proposed projet concerning the rights and duties of neutral states regarding trade in contraband, Art. I, Sec. 2 of which declares that "neutrals are not bound to prohibit their citizens from trading in these articles," i. e., articles of a contraband character.

32 Handbuch des Positiven Völkerrechts, Sec. 133.

33 Actes et Documents, Vol. III, p. 859.

34 For example by Gessner, Le Droit des neutres (French trans.), p. 124. 35 In a note to Sec. 148 (p. 351), of Heffter.

punish such acts, but that they are not responsible for damages caused thereby; they have only to watch over (surveiller) acts contrary to the rules of neutrality and to prevent manifest infractions thereof.36 He expresses no opinion as to whether the sale of arms or munitions is contrary to the rules of neutrality.

Gessner is one of the very few German authorities who have pronounced an opinion against the existing practice. The sale of contraband articles to a belligerent is, he contends, a violation of the law of nations, for which the injured belligerent has a right to damages and against which he may resort to reprisals, or even war, in case of persistency.37 The toleration by the British Government in 1870 of the sale of arms to the French was, he says, such a violation, although it was in a measure excusable for the reason that during the Crimean War the Prussian Government had allowed the transit of arms through Prussian territory to Russia. His statement that German authority is in favor of the prohibition of such trade is emphatically denied by Geffcken, who charges him with misreading Bluntschli, Heffter, and others.38

Bluntschli distinguishes between the exportation of arms in large quantities and exportation in small quantities (zwischen sendungen im grossen und kleinen), the former of which a neutral is bound to prevent "when it results from the circumstances that the sending of these articles constitutes a subsidy of war." 39 The German General Staff in

36 Droit Int. de l'Europe, Sec. 148.

37 Le Droit des neutres, p. 126.

38 See Geffcken's note on Heffter, p. 351.

39 Droit Int. Codifié (ed. by Lardy), Sec. 766. A neutral state, says Bluntschli, is not required to prohibit the exportation en détail of arms and munitions, because such trade is of little importance in the relations between belligerents and neutrals, and the responsibility of preventing it would be very difficult if not impossible and would subject the citizens to innumerable vexations. But it is otherwise, he says, in regard to expéditions en gros, since they give one of the belligerents a real advantage and often amount to a veritable subsidy. Referring to the policy of the British Government in 1870 of permitting the sale of arms to the French, Bluntschli expresses the view that while the government was not guilty of any "direct violation" of international law, it did not observe scrupulously the prohibition of international law in regard to giving aid to one of the belligerents. It should have prevented entirely the exportation of arms, or at least should have subjected it to restrictions, and in doing so it would not have amounted to "benevolent" neutrality but rather a "strict" neutrality.

the Kriegsbrauch im Landkriege makes the same distinction.40 But as Geffcken has pointed out, no valid distinction between the furnishing of arms in large quantities and the furnishing of them in small quantities can be made, both acts being the same in principle."

But one conclusion is possible from this review of the opinions of the leading writers, namely, that the sale by citizens of neutral states of arms and munitions to belligerents has not in the past been regarded as contrary to the accepted notions of neutrality. Only a very few jurists of repute have ever maintained the contrary, and it may be added that most of them are to be found among the older writers. So far as I am aware, there is no authoritative text-writer of the present day except Brusa and Kleen, who advocates the latter view.

The practice of neutrals in the past has for the most part been in accordance with the views of the text-writers. In all the wars since the United States achieved its independence, its markets have been open to belligerents to purchase without restriction such supplies as they wished. During the Napoleonic Wars the French purchased arms and munitions in the United States, and the well-known answer of the Secretary of State to the complaints of the British Government has been quoted above.

President Pierce in his annual message of December 3, 1854, adverting to the neutrality policy of the United States during the Crimean War, stated that

*

During the progress of the present war in Europe, our citizens have without national responsibility ** sold powder and arms to all buyers regardless of the destination of those articles. * The laws

of the United States do not forbid their citizens to sell to either of the belligerent Powers articles contraband of war or to take munitions of war or soldiers on board their private ships for transportation; and, although in so doing the individual citizen exposes his property or person to some of the hazards of war, his acts do not involve any breach of national neutrality."

42

40 Pt. III, Sec. 3, Par. b.

41 Holtzendorff, Handbuch, Bd. IV, p. 690. See also his note on page 351 of Heffter. Numerous other writers have criticised as impracticable if not impossible the attempt to draw a distinction between large and small commercial transactions in respect to the sale of contraband goods. See, for example, Lawrence, Principles, p. 699; Oppenheim, Vol. II, p. 377; and Snow, Int. Law, p. 134. 42 Richardson, Messages and Papers of the Presidents, Vol. V,

p. 331.