question of permitting by a neutral the domestic manufacture and sale or export to belligerents of war munitions. For the moment we may lay out of view problems arising from the exigencies of blockade, since this weapon has not as yet formed a feature of present-day hostilities. In time of war the trade of neutrals with belligerents in articles not deemed contraband is absolutely free unless interrupted by blockade which seeks to forbid all traffic irrespective of the character of the goods.[1]
The term contraband, however, marks a sharply differing conception. It is applied to certain classes of merchandise intended on the part of a neutral for belligerent use, but whose seizures by an opposing belligerent is permitted on principles of international law; the merchandise is under the han—contra bannum—and its carriage becomes thus tinged with an illicit quality susceptible of enforcement, not by the neutral's government but rather by that of the belligerent. It is the goods themselves, indeed, and not the shippers which are the objects of this ban. The government, with us, of the shipping neutral is not properly concerned save where the transaction is brought within our neutrality statutes by assuming the form of an organized warlike undertaking, such as the fitting of a predatory vessel or one intended to afford assistance to belligerents or insurgents, as set out in the Act of Congress of 1794
recommended by President Washington in his annual address on Dec. 3, 1793; it was drawn by Hamilton; and passed the senate by the casting vote of Vice President Adams. Its enactment grew out of the proceedings of the then French Minister which called forth President Washington's proclamation of neutrality in the spring of 1793.[2]
But with the strictly individual manufacture and sale to a belligerent of war munitions the case is wholly dissimilar; Jefferson wrote, May 15, 1793, to the French and British ministers at Philadelphia:
Our citizens have always been free to make, vend and export arms; it is the constant occupation and livelihood of some of them. To suppress their callings, the only means, perhaps, of their subsistence, because a war exists in foreign and distant countries in which we have no concern, would scarcely be expected. It would be hard in principle and impossible in practise. The law of nations, therefore, respecting the rights of those at peace has not required from them such an internal derangement in their occupations. It is satisfied with the external penalty pronounced in the President's proclamation, that of confiscation of such portion of these arms as shall fall into the hands of any of the belligerent powers on their way to the ports of their enemies. To this penalty our citizens are warned that they will be abandoned; and that the purchases of arms here may work no inequality between the parties at war, the liberty to make them will be enjoyed equally by both.[3]
These expressions of the construction placed upon neutral rights are quite as valid for the exigencies of to-day as for those of 1793. Our
