violation of our own Neutrality Law.1 On the other hand our Government could not permit the levying or recruiting of troops in this country by agents or friends of the Japanese Government.

Our Neutrality Law also forbids any one from "fitting out and arming," or "knowingly being concerned in the furnishing, fitting out or arming of any ship or vessel with intent that such ship or vessel shall be employed in the service" of either belligerent. Since the incorporation of this principle in the Treaty of Washington in 1871 and the Geneva Award of 1872, no one is likely any longer to deny that this rule forms an integral part of International Law, and the proposal to present Japan with a war-vessel, if made, was on the face of it absurd. The Government of the United States would have been bound by its international obligations to have prevented the fitting out, arming, and the equipping within its jurisdiction, as well as the departure, of such a vessel, and every contributor to such a fund would have been liable to arrest and punishment for a violation of the Neutrality Act of 1818. "The duties of neutrals happily do not impose any checks upon the humane impulses of the citizens of neutral countries, or upon the practical expression of their sympathies in case of the wounded, the widows, and the fatherless," and there can be no sound objection to contributions to any Red Cross Society, at least on the part of neutral individuals."

As to the question whether American sympathizers with Japan have a right to make gifts or voluntary contributions to a fund set aside for the purpose of assisting

This would only be the case if they actually enlisted or were hired or retained to go abroad with intent to be enlisted. It would not be a crime, under our neutrality law, for them merely to leave this country with intent to enlist, U. S. v. Kazinski, 2 Sprague 7. For official opinions on the subject of enlistment. see Wharton's Digest III., § 392.

2 From editorial in London Times for February 13, 1904.

Japan to carry on the war, the case is by no means so clear. There can, however, be no real question as to the legality of the purchase of war-bonds as an investment. Of course it would be a flagrant breach of International Law if such a loan were in any way to be advanced, supported, or guaranteed by a neutral Government. Although the legality of loans by neutral individuals to be!ligerent States has been denied by some eminent publicists, such a position is not in conformity with the practice of nations. "Money is a form of merchandise, and neutral individuals constantly trade in it with belligerent governments. It can be transferred with the greatest ease, far more easily in fact, than other commodities. Commercial transactions in it could not be prevented except by an amount of espionage and interference which would outrage human nature and render all trade impossible. No war of any magnitude takes place without a free resort by the combatant powers to neutral money markets. The stock in loans issued to provide funds for the conflict is bought and sold in other countries, just as freely as shares in foreign mines and railways. . . When practice points entirely in one direction it is idle to pit against it a so-called rule

3 E.g., by Bluntschli, §768; Phillimore. III.. §151; Calvo, $82628-30 (5th ed.); and Halleck (Baker's ed.), II., p. 195. The cases De Wutz v. Hendricks, Common Pleas, 1824, 9 Moore, 586; Thompson v. Powles. Chancery, 1828, 2 Simon 194; and Kennett v. Chambers, U. S. Supreme Court. 14 Howard 38, upon which the view of these publicists seems to be founded, merely go to the extent of holding that contracts to raise loans for the purpose of aiding communites whose belligerency or independence has not been recognized are illegal or invalid. This is a good example of the excessive deference which is sometimes paid to the decisions of judges whose opinions are often mere obiter dicta or are given a more extended application than they deserve. In dealing with the decisions of courts we should always remember that they are necessarily of limited application both as to subject matter and in respect to nationality. We should never forget that International Law is based upon the general practice of nations. This is one of the greatest objections to the teaching of International Law by the main or exclusive use of the "Case System."

based on nothing better than the statement that gold is a prime necessity in war. It certainly is; and nearly all agree that a belligerent may lawfully confiscate any supplies of it he may find in a neutral vessel on its way to the enemy. Money is contraband of war, and must be treated like other articles in the same category. The neutral lender in it lends at his own risk, but he commits no breach of the common law of nations by lending, and his government is under no obligation to attempt the impossible task of preventing him." 1

But it is claimed that gifts or voluntary subscriptions stand upon a different footing from ordinary loans. In 1823 the law officers of the British Crown, in response to an inquiry from the British Cabinet in respect to the legality of certain funds which were being raised in behalf of the Greek revolutionists whose belligerency had been recognized by the British Government, gave an opinion to the effect that "voluntary subscriptions of the nature alluded to were inconsistent with neutrality and contrary to the law of nations." In commenting upon this opinion, Lawrence says, "Even in deciding, and rightly deciding that voluntary gifts and subscriptions were illegal, the British law officers took care to add that the belligerent against whom they were directed would not have the right to consider them as constituting an act of hostility on the part of the neutral government. Moreover, they abstained from recommending a prosecution of the subscribers on the ground that it would be almost certain to fail."3

1

2

But of what use, we may ask, is a prohibi

598.

2

Lawrence, op. cit., pp. 522-23. Cf. Hall. p.

Lawrence, p. 523. For the documents, see Halleck (Baker's ed.) II., pp. 195-97. But with respect to loans, the learned lawyers declared that "if entered into merely with commercial views, we think, according to the opinion of writers on the law of nations and the practice which has prevailed, they would not be an infringement of neutrality."

3 Lawrence, pp. 323-24.

tion in International Law which can not be made effective, or a rule for the non-enforcement of which a neutral State cannot be held responsible. The only apparently sound argument in favor of such a rule which occurs to us is one which is based upon the doctrine of intent. It might be urged that we ought to distinguish, as in the case of the sale, construction, or exportation of a war-ship, between a bona fide commercial transaction and an intent to render assistance to one of the belligerents. But the rules of International Law have fortunately not been devised to satisfy the demands of logic or of any system of classification, and the doctrine of intent, at least as applied to ships of war, is one of very doubtful value and validity. For, as an able writer has well said, "in international wrongs . . the intent is not the thing chiefly or primarily regarded."5

So far as can be ascertained, the people. and Government of the United States have fully discharged their neutral obligations. toward both belligerents in this war up to the present time. President Roosevelt's Proclamation of Neutrality, issued on February 10th, was more than usually full and explicit and it takes advanced ground on all important questions. In accordance with the terms of our Neutrality Law, the acceptance of commissions and enlistment in the military or naval service of either belligerent are strictly forbidden." In accordance with the requirements of International Law as well as of our Neutrality Act,

it also prohibits "the fitting out and arming of any ship or vessel with intent that such ship or vessel shall be employed in the service of either belligerent," as also the "increasing or augmenting of the force of any ship of war, cruiser, or armed vessel in the service of either of the said belligerents." For the same reasons it also prohibits the preparing or setting on foot of any military expedition or enterprise against the territory of either belligerent, and it forbids the use of our ports or territorial waters for any military purpose. It also directs the enforcement of the two twenty-four rules, viz.. the rule requiring that vessels belonging to either belligerent and entering a neutral port during the war be required to leave within twenty-four hours after their arrival except in case of necessity, and the rule which provides that an interval of at least twenty-four hours must elapse between the departure from a neutral port of vessels belonging to opposing belligerents. These rules are now so generally observed by neutral States that they are in all probability in process of becoming a part of the law or practice of nations, if, indeed, they do not already deserve that description. The same may be said of two other requirements, likewise inserted in the President's proclamation and now generally observed by the practice of nations, to the effect that ships of war belonging to either belligerent shall only be permitted to take in a supply of coal at any of our ports sufficient to take them to the nearest home port, and that the same vessel, after having once been furnished with coal, shall not receive another supply at any of our ports within three months, unless she shall in the meantime

It is perhaps too much to say that these are rules of International Law at the present time, but they are undoubtedly in process of rapidly becoming so. They have been incorporated into most of the recent Neutrality Proclamations, at least in those of the United States, Great Britain and France. It seems always to

have entered a port of the government to which she belongs.

In a subsequent executive order, issued on March tenth, President Roosevelt warned all officials of the Government, whether civil, naval, or military, not only to observe all obligations of neutrality during the present war between Japan and Russia, but "also to abstain from either action or speech which can legitimately cause irritation to either of the combatants." This proclamation is said to have produced a good effect in Russia and to have somewhat allayed the feelings of irritation of the Russian Government and people against the United States. Although doubtless an act of wisdom and discretion on the part of our President, this additional proclamation was not necessary from the point of view of our international obligations, and it can hardly be said to be binding upon the majority of those to whom it is addressed.

If the United States seems to have a clear record in the matter of the faithful observance of her neutral duties in this war, the same may be said of England and France. The Governments of both of these States appear to have performed their neutral obligations under somewhat difficult circumstances in an admirable spirit of fairness and impartiality.

France is said to have made an elaborate apology to the Japanese Government for having allowed the small Russian Mediterranean fleet to remain at Jibutil, a port in French Somaliland, for a longer period of time than the twenty-four hour rule per

be assumed in current discussions that these rules are part and parcel of International Law. Where modern Governments as well as the general public are willing to take such advanced ground, it would seem to be unbecoming for publicists to lag too far behind. This is especially true of the rules limiting the supply of coal in neutral ports. In view of the supreme importance of coal under conditions of modern naval warfare, there can scarcely be any question but that only a very limited supply should be furnished to belligerent vessels at neutral ports.

mits; but inasmuch as the Mediterranean fleet was ordered back to the Baltic, it may be inferred that it was not permitted to take on a sufficient supply of coal at French ports to enable it to reach itts destination in the East. It is difficult, however, to see why the French Government should have been obliged to apologize to Japan for a violation of the twenty-four hour rule inasmuch as the observance of this rule can scarcely be said. strictly speaking, to form any part of the requirements of of International Law. The French Manifesto of Neutrality, moreover, makes no mention of a time limit after which the sanctuary of its harborage is forbidden to a belligerent vessel.2

England, on the other hand, has not only refused to supply Russian war and transport vessels with more coal than was necessary to take them to their nearest home port, but, in accordance with the terms

3

1 See New York Independent for February 25, 1904.

2 At least so says the Saturday Review for February 27, 1904. This omission is all the more surprising from the fact that this rule was initiated by the French Government in 1861. See Walker, op. cit., p. 455. We have been unable to find the text of the French Proclamation of Neutrality. The Journal des Debats (weekly ed.), for Feb. 19, 1904. states that it is less precise than those of former occasions.

3 As in the cases of the Russian transport Azoff and the two torpedo boats at Port Said on

of her Neutrality Proclamation, she has insisted upon the enforcement of the twentyfour-hour rule in all parts of the British Empire.

The only serious charges of a violation of neutral duties on the part of a great European Power lie against Germany, viz., the failure of the German Government to prevent the sale to Russia of several transatlantic steamers belonging to its Auxiliary Navy, and the exportation of a number of torpedo boats to Russian territory; but, inasmuch as these transactions raise some very difficult and delicate questions which are inseparably connected with a great historical controversy, and inasmuch as the 'imits of this paper have about been reached. these charges must be reserved for our next paper.

February 10th. See the New York Times for February 11, 1904.

4

ex

As in the case of the Russian torpedo boats at Malta and Port Said. It is scarcely worth while to notice the charges against England of gross violations of neutrality which were made by the angry and cited Russian newspapers at the beginning of the war. So it was charged, e. g., that the Japanese attack on Port Arthur had been made from Wei-hai-wei, a Chinese port leased by the British Government, and that two Japanese cruisers had sailed from Genoa under the British flag. For Lord Selbourne's clear and convincing refutation in the British Parliament of these and similar charges, see London Times (weekly ed.) for March 4, 1904.

A

However, the judge was not a Kentuckian

A., 1823, Peconic Centre, Connecticut," was the entry in the small Yale catalogue for 1825. And in that year he was completing his course of study at the law school at Litchfield, that forerunner of the great law schools of today. At twenty-five years of age the world lay before him. Full of hope and ambition he turned to the great West:

avoiding the thickly settled centres of population east of the Alleghenies, he followed the stream of western migration and found himself the possessor of a sign, an office and a few books in Lexington, Kentucky.

He had brought no letters of introduction. His diplomas from the schools which had trained Calhoun were enough to admit him to the Kentucky bar. Old Judge Holcomb moved in open court his admission.

An hour afterwards bench and bar held a protracted session at Whitley's Tavern. Marsden proved himself as agreeable as his brothers were hospitable. That afternoon he had a client, a man who had been made the defendant in a pending damage suit.

Marsden went over to the clerk's office, got the declaration in the case and took it to his office. One reading showed him it was bad. No need to waste time upon that. The next Saturday was court day. Marsden was on hand and when the case of Whipple v. Sykes was called he arose and entered his appearance for the defendant Sykes. "I file," he said, walking over to the clerk's desk, "a demurrer on behalf of the defendant to the declaration of the plaintiff Whipple."

The low buzz of conversation among the attorneys ceased. The judge looked over his glasses and said, "I note the entry of your appearance for the defendant, Mr. Marsden. What steps do I understand that you are about to take in this matter?"

"I desire on behalf of the defendant to file a demurrer to the plaintiff's declaration," repeated Marsden. The judge and the clerk exchanged glances. "If that is your determination, let the entry be made," responded the judge impressively.

The calling of the docket was over. The lawyers filed out one by one. There seemed to be an air of suppressed excitement about the place. Marsden went up the street to his office. Upon each corner as he passed was a group of two or three of his fellow

members of the bar. In answer to his hearty "Good morning," a nod was all he received. No one came to his office that day. He boarded at the same tavern as did Attorneys Brown and Owens. At dinner they kept their eyes upon their plates when Marsden came into the dining-room.

During the following week Marsden found himself left severely alone. A chilly bow greeted him when he met another lawyer. Marsden became worried.

At last he called upon Judge Holcomb. The judge met him with a manner at once dignified and formal. "Judge," Marsden said, “you have been very good to me since I came here an entire stranger. I shal never forget your kind words when you moved my admission to the bar, and your kindness was shared by every other lawyer in this circuit. I felt at once that I was at home. But since last Saturday everything has changed. No one has come near me. When I approach another attorney he moves off and appears not to have seen me. I don't know what I have done to cause this change and I come to you, as one who has shown me more than ordinary courtesy and hospitality, to have you tell me, if you can, what is amiss and what I can do to repair matters. I am completely disheartened."

"Young man," answered the judge, "I took kindly to you from the first and so did all of us. Our first impressions of you were good, and we were only too glad to welcome you to Kentucky. But there are certain proprieties which you have wholly failed to observe. You may have been taught that way at that law school you came from, but here, sir, it won't do. All I have to say, sir, and I say it in all kindness-is that in Kentucky, sir, no gentleman, sir, ever demurs to his brother's declaration."

The next Saturday Marsden withdrew his demurrer and filed an answer. He prospered thereafter and died, as has been said, full of years and honors.