tion of our Government, a European war in which, in full accordance with the rules of international law, as accepted by the United States, munitions of war have not been sent by American citizens to one or both of the belligerents; yet it has never been doubted that these munitions of war, if seized by the belligerent, against whom they were to be used, could have been condemned as contraband."

Moore's Digest, vol. vii, p. 963; For. Rel. 1885, 172.

United States Government will not press claim of its citizens against a foreign government arising out of sale of contraband goods.

In a letter declining to urge the claim of an American citizen against the Government of Guatemala for the payment of drafts given for the purchase of arms, the Department of State said: There is a vast difference between the degree of repressive control which this government may be called upon to exert over its citizens in the pursuance of its neutral duties and the extent to which it may be permitted to go in actively aiding them to secure the fulfillment of contracts entered into in aid of a belligerent. For example, it is no offence either against the law of nations or against our neutrality statutes for a citizen of the United States to sell munitions of war to a belligerent; yet it could scarcely be contended that this government would be justified in employing its agents to promote such transactions. Such conduct, it is conceived, would be highly unneutral. It is the duty of this government to abstain from aiding a belligerent in hostilities against a friendly power. Such was the view of this Department in 1868, when it refused to yield its good offices in behalf of American citizens holding bonds of Chile and Peru issued in aid of a war with Spain in 1866. In that case the transaction was as innocent as any of the contracts with Mr. Segur could possibly have been. But the Department declared that the negotiation of a loan for the purpose of hostilities against a friendly power, with which the United States are at peace, is an unneutral act. The government, it was further said, was asked to exert its friendly offices in a matter addressed to its discretion' and 'not founded upon a right to interposition,' and 'Spain might find ground to complain that this gov ernment patronizes a contribution by citizens of the United States to funds of her enemies for war purposes.

6

Mr. Rives, Acting Secretary of State, to Messrs. Morris and Fillette, October 13, 1888; Moore's Digest, vol. vii, p. 865.

Article 20 of the treaty between the United States and Hayti, of November 3, 1864, provides that "liberty of navigation and commerce shall extend to all kinds of merchandise, excepting those only which are distinguished by the name of contraband of war." The article then specifies the things which shall be comprehended under that designation. Article 21 stipulates that "all other merchandises and things" not comprehended in the list shall be considered as subject of free and lawful commerce, which may be transported in the freest manner by the citizens of both contracting parties, even to places belonging to an enemy, excepting only such as may be besieged or blockaded. The Haytian minister at Washington asked that the United States, on the strength of these stipulations, take steps to prevent the exportation of articles contraband of war to Hayti. The United States dissented from this construction of the

treaty. It was not unusual, said the Department of State, to find in the treaties of the United States specifications of what things should be regarded as contraband of war between the contracting parties. Such provisions, however, had never been held to bind either government to prevent its citizens from exporting such things to the territory of any other country under any circumstances whatever. The United States had uniformly maintained the position taken by Mr. Jefferson, as Secretary of State, that "our citizens have always been free to make, vend, and export arms."

Moore's Digest, vol. vii, p. 964; Mr. Bayard, Secretary of State, to Mr.
Preston, Haytian Minister, November 28, 1888, For. Rel. 1888, I. 1000.

On Mar. 13, 1891 the Secretary of State wrote the Chilean minister as follows:

"I have the honor to acknowledge the receipt of your note of the 10th instant, in which you inform me that your Government has prohibited, until further orders, the importation into the Republic of arms and munitions of war of all kinds.

"In conveying this information you request me, if possible, to communicate this decree to the custom-houses of the United States in order that the shipment of such articles to Chile may be prevented; and in this relation you state that an agent of the insurgents in Chile has arrived in the city of New York for the purpose of purchasing arms and munitions of war.

"The laws of the United States on the subject of neutrality, which may be found under title LXVII of the Revised Statutes, while forbidding many acts to be done in this country which may affect the relations of hostile forces in foreign countries, do not forbid the manufacture and sale of arms or munitions of war. I am therefore at a loss to find any authority for attempting to forbid the sale and shipment of arms and munitions of war in this country, since such sale and shipment are permitted by our law. In this relation it is proper to say that our statutes on this subject are understood to be in conformity with the law of nations, by which the traffic in arms and munitions of war is permitted, subject to the belligerent right of capture and comdemnation."

Moore's Digest, vol. vii, pp. 964, 965; For. Rel. 1891, 314.

On Sept. 22, 1892, the Secretary of State wrote the Venezuelan Minister that "The sale of arms and munitions of war, even to a recognized belligerent, during the course of active hostilities, is not in itself an unlawful act, although the seller runs the risk of capture and condemnation of his wares and contraband of war."

Moore's Digest, vol. vii. p. 965; For. Rel. 1892, 645.

On July 15, 1896, the Secretary of State wrote the Spanish Minister as follows:

"If, in characterizing this country as a base of operations against Spain, it be meant that the Cuban insurgents procure the larger part of their military supplies here, the fact may be so, though the means of comparing other countries, the British West Indies in particular, with the United States are not at hand. But the comparison is of no importance, and it would be of no consequence if the insurgents derived their whole stock of warlike equipment from the United

States. The citizens of the United States have a right to sell arms and munitions of war to all comers-neither the sale nor the transportation of such merchandise, except in connection with and in furtherance of a military expedition prosecuted from our shores, are a breach of international duty or give Spain any ground of complaintand the denunciation of such acts as evidencing criminal conspiracy." or as showing United States territory to have become a base of operations against Spain, is greatly to be deprecated as without sufficient. warrant in law or in fact, and as therefore il calculated to promote the harmonious relations of the two countries.

Moore's Digest, vol. vii, pp. 965, 966.

· Regarding the trade in arms and ammunition and other contraband objects, the Government of the King, looking to the strict observance of the duties prescribed by neutrality, does not intervene either to protect or prohibit it. No law prohibiting the exportation of these products of national industry, the trade in question is carried on freely in the country, but outside the territory at the risks and perils of those who carry it on. If Belgian merchandise of this kind. or vesels transporting it flying the national flag, were stopped and seized on the high seas by the cruisers of one of the belligerents, the intervention of the Government would be confined to seeing that the laws of war and the regulations of the procedure before the prize courts were strictly applied to all parties interested."

M. de Favereau, Belgian foreign minister to the American minister to Belgium, September 6, 1898, inclosed by latter with despatch to United States State Department, No. 140. September 14, 1898.

On Dec. 15, 1899, the Secretary of State wrote to the Consul from the Orange Free State as follows:

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

"In reply I have the honor to quote from 1 Kent's Commentaries, page 142, concerning the well-established doctrine as to the law of nations on the subject. Chancellor Kent said:

***It was contended on the part of the French nation in 1796, that neutral governments were bound to restrain their subjects from selling or exporting articles contraband of war, to the belligerent powers. It was successfully shown, on the part of the United States, that neutrals may lawfully sell, at home, to a belligerent purchaser, or carry, themselves, to the belligerent powers, contraband articles, subjeet to the right of seizure, in transitu. The right has since been explicitly declared by the judicial authorities of this country.'

Mr. Justice Story, in the case of The Santissima Trinidad (7 Wheaton, 340), used the following language:

"There is nothing in our laws or in the law of nations that forbids our citizens from sending armed vessels as well as munitions of

war to foreign ports for sale. It is a commercial adventure which no nation is bound to prohibit, and which only exposes the persons engaged in it to the penalty of confiscation.'

In the case of The Bermuda, 3 Wallace, 514, Chief Justice Chase said:

Neutrals in their own country may sell to belligerents whatever belligerents choose to buy. The principal exceptions to this rule are, that neutrals must not sell to one belligerent what they refuse to sell to the other,' etc.

"An examination of Wharton's Digest of International Law. section 391, will make it clear that the Executive Departments of this Government from the earliest period have maintained the correctness of the doctrine stated by Chancellor Kent, and that, in this position, they have been supported by the decisions of the courts of the United States and by the opinions of eminent authorities on international law.

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

Moore's Digest, vol. vii,, pp. 969, 970.

Seton v. Lowe, 1 Johnson, 1.-In the course of his decision upholding an insurance contract based on neutral trade in contraband goods, Kent, J., said:

"On the first point I am of opinion that the contraband goods were lawful goods, and that whatever is not prohibited to be exported, by the positive law of the country, is lawful. It may be said that the law of nations is part of the municipal law of the land, and that by that law (and which, so far as it concerns the present question, is expressly incorporated into our treaty of commerce with Great Britain) contraband trade is prohibited to neutrals, and, consequently, unlawful. This reasoning is not destitute of force, but the fact is that the law of nations does not declare the trade to be unlawful. It only authorizes the seizure of the contraband articles by the belligerent Powers; and this it does from necessity. A neutral nation has nothing to do with the war, and is under no moral obligation to abandon or abridge its trade; and yet, at the same time, from the law of necessity, as Vattel observes, the Powers at war have a right to seize and confiscate the contraband goods, and this they may do from the principle of self-defence. The right of the hostile Power to seize, this same very moral and correct writer continues to observe, does not destroy the right of the neutral to transport. They are rights which may, at times, reciprocally clash and injure each other. But this collision is the effect of inevitable necessity, and the neutral has no just cause to complain. A trade by a neutral in articles contraband of war is, therefore, a lawful trade, though a trade, from necessity, subject to inconvenience and loss."

Armed vessels may be sent to foreign ports for sale.

The "Santissima Trinidad," 3 Wheaton, 283.-In this case the capturing vessel was sent by her owners after being armed, from

Baltimore to Buenos Ayres, with authority to the supercargo to sell her in the latter port. She sailed under the protection of the American flag during the voyage and committed no hostilities until her arrival in Buenos Ayres, where she was sold apparently in good faith and commissioned as a national ship.

The Court said: "The question as to the original illegal armament and outfit of the Independencia may be dismissed in a few words. It is apparent, that though equipped as a vessel of war, she was sent to Buenos Ayres on a commercial adventure, contraband, indeed, but in no shape violating our laws or our national neutrality. If captured by a Spanish ship of war during the voyage she would have been justly condemned as good prize, and for being engaged in a traffic prohibited by the law of nations. But there is nothing in our laws, or in the law of nations, that forbids our citizens from sending armed vessels, as well as munitions of war, to foreign ports for sale. It is a commercial adventure which no nation is bound to prohibit; and which only exposes the persons engaged in it to the penalty of confiscation. Supposing, therefore, the voyage to have been for commercial purposes, and the sale at Buenos Ayres to have been a bona fide sale (and there is nothing in the evidence before us to contradict it), there is no pretence to say, that the original outfit on the voyage was illegal, or that a capture made after the sale was, for that cause alone, valid."

See also, United States r. The Meteor, 3 American Law Review, 173.

Ex parte Charasse, in re Grazebrook, 34 L. J. N. S., Bankruptcy, 17.-Referring to the furnishing of contraband articles to the Confederacy, during the Civil War, Lord Westbury said:

"But this commerce, which was perfectly lawful for the neutral with either belligerent country before the war, is not made by the war unlawful and capable of being prohibited by both or either of the belligerents. All that international law does is to subject the neutral merchant who transports the contraband of war to the risk of having his ship and cargo captured and condemned by the bellig erent Power to whose country the cargo is destined."

In the case of United States v. Trumbull, 48 Fed. Rep. 99, the Court said: "But I think it perfectly clear that the sending of a ship from Chile to the United States, to take on board arms and ammiunition purchased in this country, and carry them back to Chile, is not the beginning, setting on foot, providing or preparing the means of any military expedition or enterprise-within the meaning of section 5286 of the Revised Statutes."

Hendricks v. Gonzalez, 67 Fed. Rep., 351.-Wallace, Circuit Judge, said: "It is not an infraction of international obligation to permit an armed vessel to sail or munitions of war to be sent from a neutral country to a belligerent port, for sale as articles of commerce; and neutrals may lawfully sell at home to a belligerent purchaser, or carry themselves to the belligerents, articles which are contraband of war. * ** There was not a particle of evidence brought to the attention of the collector tending to show that the vessel was intended to be employed in acts of war. It is not enough that it was the purpose of her intended voyage to transport arms and munitions war for the use of the insurrectionary party in Venezuela."