It is an error to assert that the sale of such articles upon neutral territory to the subjects of a belligerent state is tantamount to the supply of the latter therewith, because every commercial transaction tends to bring producer and consumers into closer relationship. The carriage of the articles into belligerent territory constitutes the act of contraband-the act of carriage alone violates the laws of neutrality. So long as the articles remain upon neutral ground they cannot be obnoxious to either belligerent, and the latter has no right to interfere with any commercial transaction of which the said articles are the object. A neutral is not morally bound to know the ultimate destination of such articles, so long as he restricts himself to selling them upon neutral territory; he may even ignore the buyer altogether. Besides, were every commercial transaction which might benefit a belligerent to be held incompatible with the duties of neutrality, how could the belligerents themselves obtain their supplies? Commerce, and even the production of contraband articles upon neutral territory must be prohibited. Nothing shows that the articles in question are specially destined for the use of either belligerent. Consequently, any prohibition in regard thereof would be an act of injustice, an interference with a branch of commerce which might have no connexion whatever with the belligerent States.

"Again, should we be justified in requiring a neutral power to suppress the production of warlike material, and so virtually to disarm, at the very moment when its neighbours were putting forth their fullest military strength?

"The deductions of international morality, therefore, determine that the commerce of contraband of war upon neutral ground, in other words, the passive commerce of such articles, is not an act of contraband. Consequently, the subjects—we would by no means be understood to imply the Governments as well-of neutral States may sell such articles at home to the subjects, and even to the Governments of belligerent Statss. But to maintain a due impartiality, equal facilities should be accorded to each belligerent.

"We have lately had an example of the practical application of this principle during the Civil War in the United States of America, in which Great Britain permitted both parties to build and equip vessels of war, even monitors, &c., in her ports."

[We have italicized this extraordinary statement, as it appears to have escaped the notice of the English and French reviewers.]

"II. To constitute an act of contraband, the articles must be carried by sea. This distinction is merely practical, but to guard against undesirable complications, it is recognized theoretically.

"The mode of carriage cannot really affect the question. In the abstract, the introduction of contraband articles by land is as grave an infraction of the duties of neutrality as by sea. Theoretically, this deduction is inevitable; but in practice, as we have said, acts

of contraband refer to the carriage of prohibited articles by sea only.

"Neutral Governments are not bound to provide against the supply of such articles to the belligerents by their subjects, they confine themselves to depriving this branch of commerce of protection, and so recognize the right of a belligerent to suppress it. A belligerent, on his side, cannot prevent the supplies of contraband articles to his opponents by land, seeing that the importation is effected over the frontier of a neutral State where he has no jurisdiction. There is consequently no way of repressing such traffic, and the science of international law has forborne to lay down any rules regarding it.

"Access to the sea is free to all. The sea is not an appanage of any individual power. A belligerent may, therefore, without any violation of his duty towards neutral States, repress a commerce which, in the eye of the Law of Nations, has no claim to protection. Treaties provide against acts of contraband by sea only. The repression of like acts by land is left to the care of the Administration of each individual State, and where this duty of international equity is neglected, a belligerent has a right to appeal against such negligence as against any other act of partiality detrimental to his interests."

"III. It is evident that the carriage of contraband articles into any territory other than that of a belligerent can in nowise constitute an act of contraband. Some publicists, amongst them Cassy (Causes célèbres maritimes,) have regarded the introduction of such articles into a neutral territory immediately adjacent to a belligerent State as an act of contraband. This view appears to us to be founded upon error, inasmuch as it is opposed to that perfect freedom of commerce betwixt neutrals which we hold to be indisputable."

We have next to consider M. Basily's views as to the modes of repressing acts of contraband. They may be summed up briefly as follows:

"Neutral powers are not morally bound to repress acts of contraband. Therefore, they are not responsible for violations of the duties of neutrality in this respect by their subjects. On account of this very absence of responsibility on their part, they are not justified in refusing the right of repression to the belligerents. Any protection afforded to such commerce would be a breach of neutrality-an act of connivance on the part of the neutral Power. Hence arises the right of confiscation possessed by belligerents.

"This right must be strictly limited to contraband articles; it cannot be applied to the rest of the cargo, nor to the vessel and crew, which enjoy the protection of the neutral flag. A belligerent cannot exercise any right of jurisdiction out of his own countrythe sea cannot be regarded as a part thereof-ergo, he has no right to inflict a penalty on the subjects of a neutral power for any offence of this description against international law.

“The act of seizure and confiscation must be regarded as preventive rather than penal; it is a precautionary measure necessitated by the requirements of legitimate self-defence. It would not be morally permissible could the belligerent secure his right in any other way. At present it is inevitable. Only two treaties exist," M. Basily states, "in which the right of confiscation is not recognised, those concluded between Prussia and the United States of America in 1785, and again in 1799, but their prescriptions have never been recognized."

He then proceeds to review the opinions of various writers upon the subject, quoting the decision of Sir William Scott, afterwards Lord Stowell, amongst other authorities. Upon this point-the question of confiscation-much variety of opinion is observable. Some writers make a distinction according to the proportion of the contraband articles to the whole cargo, holding that when the proportion exceeds a certain limit, generally three-fourths, the whole cargo is liable to confiscation. Others make the penalty contingent upon the cognizance or non-cognizance of the owners; others, again, upon the appearance of fraud in the ships' papers; but all regard the confiscation of the cargo, or of the cargo and vessel, in some sort as a penalty.

From what has been said above, it will be understood that M. Basily differs from these views in toto. He regards the confiscation of the contraband articles as a preventive measure, allowable under certain circumstances, and denies the right of a belligerent to exercise any jurisdiction over neutral subjects out of his own territory. Consequently, he regards the seizure of a vessel and crew upon the ground of the former having contraband of war on board, or of any part of the cargo not included in this category, or any like act which may be viewed in the light of a penalty inposed upon the subjects of a neutral Power, owners, consigners, crew or passengers, in virtue of any such circumstance, as illegal and unjustifiable.

Frauds in a ship's papers should, he thinks, be punished by the State whose flg has been thus abused.

There is, however, another point which must not be omitted, the carriage of troops and despatches under a neutral flag.

The transport of the troops and despatches of a belligerent in neutral vessels is an act of contraband of a special character, differing essentially from the cases treated of above in its consequences and penalties. The transport of troops-including under this head men for the sea service, and recruits not yet enrolled, if carried by agreement with the belligerent government or its agents-is a grave violation of the duties of neutrality. Vessels so employed must be regarded as in the service of the belligerent Power for the time being, and consequently exempt from the immunities reserved to neutrals. In virtue of this principle, the confiscation of any such vessel is a perfectly legitimate act. Every subject of a neutral

Power serving either as a volunteer or a mercenary in the ariny of a belligerent State, is liable to the same conditions as any other prisoner of war from the ranks of such army. So also in like manner any vessel temporarily in the service of a belligerent State, is good and lawful prize of the State's enemies.

But M. Basily thinks that a distinction should be drawn between acts of this nature committed voluntarily and under compulsion. In the latter case, the vessels of neutrals can hardly be deemed liable. He admits, however, that the case is full of practical difficulties. Some publicists have suggested that all vessels thus found should be liable to confiscation, but on sufficient proof of compulsion, indemnity should be recoverable by the owners from the captor's government. In a moral point of view, M. Basily thinks that voluntary and involuntary violations of duty cannot be classed in the same category, and that in the former case alone is confiscation of the vessel admissable. With most recent writers, he agrees that the vessel cannot be seized on her return voyage; that the cargo which may belong to persons wholly unconnected with the illegal act is not liable, but that the ship's armament and stores go with the hull.

In his observations respecting the carriage of despatches, M. Basily takes broader views than any preceding writer. He holds that neutral vessels so employed are only liable when running between belligerent ports-that the carriage of papers and documents between neutral ports, or between a neutral and a belligerent port does not constitute an act of contraband. He thinks, too, that a distinction should be made between a vessel running in fulfillment of an ordinary postal contract, and one specially chartered for such service by a belligerent, the facts of the vessel being so chartered testifying to the importance of the service and the belligerent State.

"The gist of the foregoing conclusions is dependant upon the moral obligation of a neutral to observe an absolute impartiality in regard of belligerent States, and to abstain from supplying either of them with articles designed for the injury of their opponents. Upon this moral obligation of neutrals alone we rest the co-relative rights of belligerents, whenever this obligation is unrecognized or disregarded whenever the principles of a strict impartiality are transgressed by an indirect intervention in the conduct of hostilities.

"So long as neutrals observe their obligations in respect of the belligerent powers-so long as their commerce retains a character of pacific impartiality-so long should the latter enjoy freedom as absolute as in time of peace.

"In the foregoing pages we have sought to elaborate the theory of Contraband of War,' in accordance with the undefined principles of Moral Right. It must be observed, however, that this

question, like all others relating to a state of war, is wanting in positive data, in those absolute truths which alone can serve as the basis of any rigorously-defined theory. The principles which we have invoked are but relative, and this remark holds good in regard of war itself, which is a species of process in which force is the only recognized law, to the exclusion of every notion of abstract right. War is a violation of right, its object is to compel a free agent to accept conditions contrary to his will, and so to violate the chiefest of his rights. War, wrote Kant, is always unjust, in it might makes right, and, strictly speaking, no law is recognized but that of force.' The laws of war prescribe no immutable rules in regard thereof, they merely serve to impose upon belligerents certain restrictions based upon the admitted principle that such violations of right should be restricted within limits compatible with the attainment of the ends of the war."

In conclusion, M. Basily congratulates his readers upon the reflection that "the teachings of moral science persistently find a more rigorous application in the political affairs of both hemispheres ; that we observe constantly a more perfect realization of the noble sentiment of Montesquieu which serves as epigraph to his paper :

"International law is based upon the principle that nations should do to each other, in time of peace as much good, in time of war as little harm as is possible without injury to their true interests (véritables intérêts)."

How far these considerations may have been modified by the course of recent events on the Continent, to what extent distorted views of national interests have been of late allowed to overrule the dictates of international equity, of which the duties and obligations above discussed are but an element, are questions which we do not care to discuss at present.

We have sought to lay before our readers certain points of M. Basily's essay, which possess a special professional interest. To those who desire to investigate the subject more thoroughly, and to see the principles briefly sketched out in the foregoing notices traced backed to their sources, we can safely commend a perusal of the excellent translation in the Revue Critique de la Jurisprudence. If the opinions advanced by the author have in some cases been anticipated by other writers, the Essay is none the less a valuable contribution to the science of International Law, and well deserves careful study.