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I.

NEUTRAL TRADE IN CONTRABAND OF WAR.

THE recent unfortunate evasion of the Alabama' has given rise to much discussion on the general duty of a neutral Government with respect to the trade of its own subjects with the belligerents in contraband of war. One might have supposed that if there were any question which the authority of accredited writers, the definitions of public documents, and the universal practice of nations, had clearly and decisively ascertained, it was this very question on which, unhappily, there seems to prevail a most general and unfortunate misapprehension. This misapprehension, grave as it is in the exasperation which it is calculated to produce between friendly nations, is not altogether inexplicable. We have the misfortune to live in days when, in the name of liberalism, philanthropy, and civilisation, we are invited to upset the whole fabric of international law which the reason of jurists has designed and the usage of nations has built up, and to rear upon its ruins the trumpery edifice of a shallow caprice. It is the old story of that pretentious philosophy which, by a recurrence to first principles, attempted with so little success to operate the regeneration of mankind. I would, that we had yet among us the multitudinous eloquence of Burke or the poignant wit of Canning to do condign justice upon this presumptuous sciolism.

I think that among the numerous candidates for distinction in this rivalry of innovation, precedence should be duly awarded to M. Hautefeuille. For contempt of the existing code of international law, for intrepidity in the misrepresentation of history, for audacity of paradox, this ingenious speculator is without his equal, even in the modern license of

coxcombical jurisprudence. I can concede to M. Hautefeuille everything except the title to originality. The leading principle on which his well-known work is constructed has been, in fact, anticipated by M. Genet, the celebrated plenipotentiary of the French Republic, in a dispatch to Jefferson in 1793. 'I do not recollect,' says this enlightened French jurist,' what the worm-eaten writings of Grotius, Puffendorf, and Vattel say on the subject. I thank God I have forgotten what these mercenary jurisprudists have written on the rights of nations at a period when they were all enchained. The rights of man are enclosed in my breast with the source of life.' I venture to suggest to M. Hautefeuille that he should adopt this paragraph as the motto to his next edition. Anyone who is acquainted with the system of M. Hautefeuille will at once recognise in these lofty sentiments the germ of the theory by which that author evolves the whole doctrine of international law from his own moral consciousness, and overrules all established principles by a 'primary divine law,' which seems to have been specially revealed to this inspired Gallican lawgiver, much as the Book of Mormon' was intrusted by Providence to the exposition of Joseph Smith.

Now, I observe that persons imperfectly acquainted with these subjects are in the habit of referring, upon questions which from time to time emerge, to the writings of M. Hautefeuille. His work on neutral rights is seductive from the false air of precision which it affects; it is apparently copious, and might be expected to be a safe guide, but I have no hesitation in saying that, of all treatises on this subject which have ever come under my notice, it is the most inaccurate and the most unreliable that is anywhere extant. I think I am not putting the case too high when I say that on any given point the presumption is that the propositions which will be found to be laid down by M. Hautefeuille are not only not the law, but are the exact reverse of the established law of nations.

This may seem a strong statement; but I will proceed at once to justify it. I showed in some letters addressed to you last spring, how entirely untrustworthy were the statements and doctrines of M. Hautefeuille on the subject of blockade.

I think I shall be able to satisfy you, that, on the topic of contraband, his authority is even less to be relied on. It is notorious that, at the present moment, there is great irritation in the American mind at the trade carried on in this country by English merchants with the several belligerents in various munitions of war. It is certainly a matter of the first importance to the friendly relations of England and America, to ascertain whether and how far such a trade is or is not lawful-whether, in short, it is a trade which the neutral government is bound to prohibit and prevent, and which, if not so prohibited and prevented, furnishes a just ground of complaint on the part of the belligerent against the neutral Government. Now, if a Northern politician, exasperated at a purchase of arms or of gunpowder effected at Liverpool by the Confederate Government, were to consult the pages of M. Hautefeuille, he would find it laid down, under the head of 'Contraband' (vol. ii. 162 of the last edition), in the plainest and most positive terms, that a trade in contraband carried on by a neutral subject with one of the belligerents in the neutral territory, is unlawful and prohibited; and that the injured belligerent has a right to resent by war the conduct of the neutral Government, if it should fail to prohibit and prevent such a trade on the part of its subjects,—a doctrine certainly, if it be sound, most momentous in its consequences, and devolving upon neutral Governments a most intolerable responsibility. If M. Hautefeuille be right, the English Government is answerable to each belligerent for every contract which has been made since the beginning of the war by an English merchant in Liverpool, for the sale of munitions of war to the other belligerent; and, if this be so, certainly both the Northern and Southern States have an ample and ready-made casus belli against Great Britain. If the people of New York read and believe M. Hautefeuille, it is not surprising that they should be exasperated to the last degree against the English Government, which, it cannot be denied, has failed in fulfilling what they are taught to believe is an international obligation. But I venture to affirm, that the doctrine thus laid down by M. Hautefeuille is not only not the law of nations, but that it is the exact contrary of the principles which all the authorities

have established, and which the universal practice of nations has confirmed. I unhesitatingly assert, in contradiction to M. Hautefeuille, that the trade in contraband with either belligerent by private persons of the neutral State, within the neutral territory, is a lawful trade; that it is not the duty of a neutral Government to prohibit such a trade within its own territory; and that the belligerent State can have no ground of complaint against the neutral Government in respect of such a trade. That it is the transportation to the belligerent territory, and not the sale in the neutral territory, of contraband, which constitutes an offence against the belligerent; and that, even for this offence, the belligerent can have no recourse against the neutral Government, which is in nowise bound to interpose, but must rely for his remedy on the capture of the contraband in transitu. It is a discreditable thing to the state of international science that it should be necessary, at the present time, to cite authority in support of propositions so elementary, and which ought to be beyond the possibility of dispute.

The law on this point is very satisfactorily and clearly explained by M. Ortolan, a French naval officer and writer on international law, who, though a far less pretentious, is a much more trustworthy author than M. Hautefeuille. M. Ortolan has the advantage of knowing what the law of nations is, and possesses, in addition, the fairness and the modesty which enable him to state it correctly. This is what he says on the subject of contraband trade :

Dès que l'existence d'une guerre a séparé divers états, d'un côté en belligérants et de l'autre en neutres, il est un commerce qui devient illicite pour ces derniers non plus seulement en vertu des lois particulières d'un seul état, mais en vertu des lois internationales, reconnues par tous. C'est celui qui consiste dans le transport chez l'ennemi des marchandises ayant un rapport direct aux opérations militaires.

Si c'est l'état neutre lui-même qui fait opérer ce transport, soit qu'il le fasse gratuitement, soit qu'il en reçoive le prix, il devient donc 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 à ses sujets, encore moins de les punir pour l'avoir fait; seulement elle ne peut le couvrir de sa protection.

Quand j'ai notifié aux Puissances neutres ma déclaration de guerre à tel ou tel peuple,' dit Vattel, 'si elles veulent s'exposer à lui porter des

choses qui servent à la guerre, elles n'auront pas sujet de se plaindre au cas que leurs marchandises tombent dans mes mains, de même que je ne leur déclare pas la guerre pour avoir tenté de les porter. Elles souffrent, il est vrai, d'une guerre à laquelle elles n'ont point de part: mais c'est par accident. Je ne m'oppose point à leur droit; j'use seulement du mien; et si nos droits se croisent et se nuisent réciproquement, c'est par l'effet d'une nécessité inévitable. Ce conflit arrive toujours dans la guerre.'

'Nous avons insisté à dessein sur ces mots commerce de transport des marchandises propres aux besoins immédiates de la guerre, parcequ'en effet c'est le seul qui soit illicite. Un état neutre qui laisse ses sujets se livrer à un commerce passif de ces mêmes objets—c'est-à-dire, qui permet à tous les belligérants indistinctement de venir les acheter sur son territoire pour les transporter ensuite, à leurs frais et à leurs risques, sur leurs propres navires-n'enfreint pas la neutralité.' (Ortolan, Règles Internationales, vol. ii. pp. 156-159.)

The same doctrine had been long before laid down, with his usual clearness and precision, by Bynkershoeck, whose wellknown belligerent sympathies make his testimony to neutral rights all the more authoritative :

Idque in instrumentis bellicis comparandis vulgo servamus, ut enim ea ad utrumque amicum non recte vehamus, sine fraude tamen vendimus utrique amico, quamvis invicem hosti, et quamvis sciamus alterum contra alterum his in bello esse usurum.-Q. J. P., li., cap. 22.

It will be observed that Bynkershoeck not only states the law, but bears witness to the universal practice of nations' vulgo servamus.' Your readers will probably be disposed to ask where M. Hautefeuille picked up this newfangled monstrosity which he produces with such positiveness and authority. According to his own account, he has borrowed it from a mighty foolish work of a certain Abbate Galiani, Sicilian Secretary of Legation at Paris, published in the interest of the Armed Neutrality in 1782, which proposes to conduct war on principles which Mr. Carlyle has described by the designation of rosepink philanthropy.' This author's own account of his work is somewhat comical. He says he wrote it in a short time and with no books,' an excuse which may palliate his inaccuracies, but which certainly does not reinforce his authority. He adds, with great naïveté, Un irresistibile comando ha prodotto quest' opera.' Mr. Reddie, in his valuable Researches, Historical and Critical, in Maritime International Law,' makes the following remark on this author:- He seems to have embarked almost without a compass on the wide sea of general principle, and