ligerents and neutrals when such condition exists. It is to be hoped that the reason for such rules will soon cease, and that all civilized countries will recognize that between nations there should be a judicial settlement of international disputes.

In 1785 this country concluded a treaty with Prussia. By Article XII it is provided:

If one of the contracting parties should be engaged in war with any other power the free intercourse of commerce of the subjects or citizens of the party remaining neutral with the belligerent power shall not be interrupted. On the contrary, in that case, as in full peace, the vessels of the neutral party may navigate freely to and from the ports and on the coasts of the belligerent parties, free vessels making free goods, insomuch as all things shall be adjudged free as shall be on board any vessel belonging to the neutral party although such things belong to an enemy of the other.

A further treaty was concluded between the United States and Prussia in 1799. Article XIII thereof contains the following:

And in the same case of one of the contracting parties being engaged in war with any other power, to prevent the difficulties and misunderstandings that usually arise respecting merchandise of contraband, such as arms, munitions, and military stores of every kind, no such articles carried in the vessels or by the subjects or the citizens of either party to the enemies of the other, shall be deemed contraband so as to induce confiscation or condemnation and a loss of property to individuals. Nevertheless, it shall be lawful to stop such vessels and articles, and to detain them for such length of time as the captors may think necessary to prevent the inconvenience or damage that might ensue by their proceeding, paying, however, a reasonable compensation for the loss such arrest shall occasion to the proprietors, and it shall further be allowed to use in the service of the captors the whole or any part of the military stores so detained, paying the owners the full value of the same, to be ascertained at the current prices at the place of its destination. - Senate Document No. 48, p. 1490. Sixty-first Congress, second session.

In 1828 a "treaty of commerce and navigation" was concluded. This treaty adopted Article XII of the treaty of 1785 and Articles XIII to XXIV, inclusive, of the treaty of 1799.

In the Second Hague Convention, 1907, to which Germany and the United States were parties, by Article VII, "a neutral Power is not called upon to prevent the export or transport on behalf of one or other of the belligerents, of arms, munitions of war, or, in general, of anything which can be of use to an army or fleet." Senate Document, Vol. 48, p. 2298, 61st Congress, 2d session.

The proclamation of President Wilson at the commencement of

hostilities between the present belligerents calls the attention of the citizens of the United States to their rights and liabilities in the present war, and to the duty of the government. It particularly refers to the Penal Code of the United States and to the penalties which will follow upon a violation thereof by its citizens. In the preamble is the following:

And Whereas, the laws and treaties of the United States, without interfering with the free expression of opinion and sympathy, or with the commercial manufacture or sale of arms or munitions of war, nevertheless imposes upon all persons who may be within their territory and jurisdiction the duty of an impartial neutrality during the existence of the contest;

And Whereas, it is the duty of a neutral government not to permit or suffer the making of its waters subservient to the purposes of war.

In the proclamation he says:

And I do further declare and proclaim that the statutes and the treaties of the United States and the laws of nations alike require that no person within the territory and jurisdiction of the United States shall take part, directly or indirectly, in said wars, but shall remain at peace with all of said belligerents, and shail maintain a strict and neutral impartiality.

And I do hereby warn all citizens of the United States, and all persons residing or being within its territory or jurisdiction, that, while the free and full expression of sympathies in public and private is not restricted by the laws of the United States, military forces in aid of a belligerent cannot lawfully be originated or organized within its jurisdiction; and that, while all persons may lawfully and without restriction by reason of the aforesaid state of war, manufacture and sell within the United States arms and munitions of war, and other articles ordinarily known as contraband of war (the italics are by the writer), yet they cannot carry such articles upon the high seas for the use or service of a belligerent, nor can they transport soldiers and officers of a belligerent, or attempt to break any blockade which may be lawfully established and maintained, during the said wars, without incurring risk of hostile capture and the penalties denounced by the law of nations in that behalf.

This proclamation contains a definite and plain summary of the law as it exists to-day, defining the lawful rights and duties of citizens of the United States so far as it relates to their intercourse and dealing with the belligerents. It expressly recognizes the right of any such citizen to ship contraband of war to any of the belligerents at the risk of the shipper.

The Congress has made certain acts of the citizen "offenses against neutrality."

Chapter 2 of the Penal Code, R. S. 5281, et seq.

As summarized by titles in the chapter, these acts are as follows:

(a) Accepting a foreign commission.

(b) Enlisting in foreign service.

(c) Arming vessels against people at peace with the United States.

(d) Augmenting the force of foreign vessels of war.

(e) Military expeditions against people at peace with the United States.

The act of selling contraband of war to a belligerent is not made an offense by these statutes.

Writers upon international law agree that the neutral nation must be absolutely impartial in its dealings with all of the belligerents. It cannot be better stated than as follows:

By the usual principles of international law, the state of neutrality recognizes the cause of both parties to the contest as just — that is, it avoids all consideration of the merits of the contest. The idea of a neutral nation implies two nations at war and a third in friendship with both. Moore's International Law Digest, Vol. VII, p. 860.

Mr. Moore, in the same work and same volume, collects the state papers on the subject of the right of a private person to sell contraband of war to belligerents (p. 955). The Secretaries of State and other Cabinet officials from 1793 to the present day, whenever they have had occasion to speak upon the subject, have always recognized the right of citizens to manufacture and sell the same to belligerents.

In 1793 Mr. Jefferson said: "Our citizens have been always free to make, vend, and export arms.'

In Hamilton's treasury circular, Aug. 4, 1793, he speaks as follows:

The purchasing within and exporting from the United States by way of merchandise articles commonly called contraband, being generally warlike instruments and military stores, is free to all the parties at war and is not to be interfered with.

Mr. Pickering, Secretary of State, in 1796, said:

In both sections cited (110 and 113 Vattel) the right of neutrals to trade in articles contraband of war is clearly established; in the first, by selling to the warring powers who come to the neutral country to buy them; in the second, by the neutral subjects or citizens carrying them to the countries of the powers at war and there selling them.

Wheaton's Elements of International law, edition of 1904, page 671,

says:

Some writers, overlooking the fact that a neutral has rights as well as a belligerent, have laid down the doctrine that the exportation of contraband is a breach of neutrality. This opinion has generally been adopted only by those whose views of international law have been derived purely from speculation. The practice of nations in no way bears out such an assertion. In every war neutrals have traded in contraband, but with the risk of having the goods condemned if captured by the enemy. Few rules of international law are so certain as that a neutral government cannot be made responsible as for a breach of neutrality because its subjects carry on a contraband trade. Thus Bismarck chose to protest more than once during the Franco-Prussian war against the supplies of arms and munitions procured in England by the government of the French republic. The trade must, however, be confined to subjects. If carried on by the government itself it then will amount to a violation of neutral duties. America has always maintained the right of exporting arms to belligerents in the way of trade; and during the civil war the federal government purchased warlike stores from England to the value of over £2,000,000.

It might be added that during that war the Southern Confederacy likewise purchased arms and munitions from England. The Federal Government during the same war purchased arms and munitions of war from France, Germany and Austria. It is a fact also that during most of the wars of the past century citizens of neutral countries have, without hindrance by their governments, sold arms and other munitions of war usually to all the belligerents.

In 1855 Franklin Pierce, then President of the United States, had occasion to speak upon this subject in his message to Congress. Messages and Documents, Part 1, 1855-56, page 6. There was then pending war between Great Britain and Russia.

It is the traditional and settled policy of the United States to maintain impartial neutrality during the wars which from time to time occur among the great powers of the world. . . . Notwithstanding the existence of such hostilities, our citizens retain the individual right to maintain all their accustomed pursuits, by land or by sea, at home or abroad, subject only to such restriction in their alteration as the laws of war, the usage of nations, or special treaties may impose. . . . In pursuance of this policy the laws of the United States do not forbid their citizens to sell to either of the belligerent powers articles contraband of war, or 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 haz ards of war, his acts do not involve any breach of national neutrality, nor of themselves implicate the government. Thus, during the progress of the present war in Europe, our citizens have, without national responsibility therefor, sold gun-powder and arms to all buyers, regardless of the destination of these articles.

It is interesting and instructive to note in what a strenuous manner both the Federal Government and the Confederate States sought to supply themselves with arms and munitions purchased from the citizens of most of the countries now engaged in war.

British Counter Case, Tribunal of Arbitration at Geneva, Vol II, pages 70 to 83 inclusive.

Further references to writers upon this subject and to public documents would unduly prolong this opinion.

The right to manufacture and sell to belligerents by a citizen of a neutral country is universally recognized. Though we may all hope that the time is near at hand when war will be no more between civilized nations, yet we must recognize that at the present time war for the settlement of international disputes is legal. Most of the treaties and conventions between the nations have only gone so far as to promulgate rules to ameliorate conditions brought about by a state of war and the suffering of those stricken in war, all, in effect, being in recognition of the right to make war for the settlement of international disputes.

In this connection it should be borne in mind that very recently this subject has been one of controversy between the United States and Germany. It will be recollected that Germany vigorously protested against the United States Government permitting its subjects to manufacture, sell, and deliver munitions of war to the allies. On the twenty-second of April of this year (1915) Secretary of State William Jennings Bryan replied to the claims of the German Government, and to its protests against the subjects of the United States furnishing munitions of war to the allies in the following manner:

In the third place I note with sincere regret that in discussing the sale and exportation of arms by citizens of the United States to the enemies of Germany, your excellency seems to be under the impression that it was within the choice of the government of the United States, notwithstanding its professed neutrality and its diligent effort to maintain it in other particulars, to inhibit this trade, and that its failure to do so was manifestly an unfair attitude toward Germany. This government holds, as I believe your excellency is well aware, and as it is constrained to hold in view of the present undisputed doctrine of accepted international law, that any change in its own laws of neutrality during the progress of a war which would affect unequally the relations of the United States with the nations at war, would be an unjustifiable departure from the principles of strict neutrality by which it has consistently sought to direct its actions, and I respectfully submit that none of the circumstances mentioned in your excellency's memorandum alters the principles involved. The placing of an embargo on the trade in arms at the present time