State has no more right to constrain its subject, in his private capacity, to be neutral, than the subject in his private has a right to constrain the State, in its public capacity, to be belligerent. I believe it to be only by adhering rigorously to the distinction between the person and the citizen that any limits can be set to the responsibility of neutral States. The moment it is departed from, and actions which do not violate private order are forbidden on public grounds, freedom of speech is endangered as well as freedom of trade; and it is at the option of belligerents to hold neutrals responsible, not only for their merchants and shipbuilders, but for their platform orators and newspaper editors, just as much as for their foreign ministers, their ambassadors, or their secretaries of legation. The rule here, then, must be to leave both belligerents to regulate their relations with the citizens of neutral States by the ordinary motives of sympathy and self-interest; or, in other words, by the laws of supply and demand. By throwing its markets and its press absolutely open, or rather by leaving them open, the neutral State acts to the belligerents with the same impartiality as if it absolutely closed the one and gagged the other; and whilst the former proceeding is easy, the experience of every war has proved the latter to be impossible, even to the modified extent to which it is prescribed by existing usage.

Is there, then, here an absolute conflict between the rights and interests of belligerents and the rights and interests of private neutrals? By legalising trade and enlistment, are we feeding war, or the contrary?

CHAPTER XXVI.

THE FINAL OBJECT OF BOTH BELLIGERENTS BEING PERMANENT PEACE, THIS OBJECT WILL BE PROMOTED BY FREEDOM OF ENLISTMENT BY PRIVATE NEUTRALS ON THE RENUNCIATION OF THEIR NEUTRAL CITIZENSHIP, AND BY FREEDOM OF TRADE BETWEEN NEUTRAL CITIZENS, IN THEIR PRIVATE CAPACITY, AND BELLIGERENT STATES OR CITIZENS.

We have seen that inasmuch as neither enlistment nor trade can as a rule be impartial, both must be regarded as essentially non-neutral acts. In their primary aspect they favour the belligerent who is best able to take advantage of them. But this is their primary aspect merely. When we look more closely into the matter, we find that there is an object common to both belligerents, as well as to the neutral world, the attainment of which, so far from being impeded by these non-neutral acts, is facilitated by them. This common object, the object of all war, as has been so often said and so often forgotten, is peace, and this not a mere temporary cessation of hostilities, but a permanent peace, which can result only from a removal of the causes of the war. The question at issue must not be avoided; it must be answered. Now, in so

far as our existing laws of neutrality, which find expression in the Foreign Enlistment Acts of 1819 and 1870,1 and in the Washington Rules of 1871,2 aim at the enforcement of 2 Infra, p. 157.

1 See Appendix, Nos. X. and XI.

private neutrality, whether in the direction of enlistment or of trade, I hold them to be condemned by the fact that their object is not to answer the question which the war has raised, but to evade or suppress it. They are thus unjust both to belligerents and to neutrals. They are unjust to belligerents

because they rob them, or seek to rob them, if not of their money, of their money's worth in the aid which that money, or it may be sympathy, would otherwise have procured for them. On the ground of the ultimate identity of belligerent and neutral interests in the stability of the peace to be attained, they are unjust to neutrals also. As regards both belligerents and neutrals, they are impediments to freedom in the first instance, whilst they yield no compensation to either by its ultimate vindication. They are thus at variance with the ultimate object of jurisprudence as a whole; and the more efficacious their provisions, the more absolutely must we condemn them. Like other bad laws, it is their inefficiency alone that renders them tolerable.

Let me illustrate what I mean by two examples which will long dwell in the recollection of international jurists. Had the sale of ships to the Southern States of America during the civil war, or the sale of arms to France during the Franco-German war, together with the enlistment--which, in the case of the American war, was carried on on a very great scale-been really prevented, there can, I daresay, be little question that both wars, as between the original parties, would have been sooner ended. But there can, I imagine, be just as little question that the risks of a renewal 1 Institutes of Law, p. 355 et seq.

of these wars would have been increased. In the case of the Franco-German war, more especially, had peace been concluded after the battle of Sedan, who can doubt that the large portion of France which up to that time had seen nothing of the war, would have immediately become clamorous for an opportunity of reversing its unacceptable verdict? It was to the arms which private traders in England and America supplied to France that Germany owed the completeness of her victory. The "benevolent neutrality" which Germany claimed from England could never have done for her what our simple adherence to the law of nations did. By preventing the sale of arms, as the Germans wished us to do, we might possibly have arrested the war; but by doing so, as the event proved, it would have been France that we should have benefited, not Germany. That America violated the law of nations by selling arms to France from the public arsenals, is admitted by all the best American jurists. But England was guilty of no breach of neutrality in permitting her private citizens to sell indifferently to either belligerent whatever he was in want of, and had money to pay for; and yet, with a strange inconsequence in so learned and clear-sighted a nation, it was not America but England that Germany, even after the war, continued to accuse of non-neutral conduct. That Germany should have asked England in her corporate capacity to violate her neutrality was surprising enough at the time; but that Germans should have continued to talk afterwards as if they still owed us a grudge because we did not do it, when the result of the war is taken into account, is quite inexplicable. But how far does this free-trade principle carry us?

Ought free trade to exist between belligerents, inter se ?

The great principle of free trade, which more and more asserts itself in the peaceful relations of States, suffers no exception in the relation between neutrals and belligerents; and free trade in material objects is but one form in which freedom of individual action asserts itself. It is only by the fullest recognition of this principle, indeed, that real neutrality becomes possible, or that a final verdict of battle can be hoped for.1 It is an interesting question whether, by following out this principle still further, the trial of strength would not be fairer, and the consequent exhaustion of the causes of war more complete, if trade were permitted even between belligerents or rather if the belligerents themselves were to permit it. It is a question which, belonging to the laws of war rather than of neutrality, is scarcely hujus loci. glance at it for a moment, however, I think I can show by a very simple illustration that if it does not demand an affirmative answer, it has at any rate two sides that very fairly balance each other.

If we may

Paradoxical as it may seem, it might, without difficulty, be argued that Germany would have been a gainer by selling to France, at their market value, the whole of the arms taken at

1 Competitive examinations are a species of battles, and in a corresponding manner it is their failure to exhaust the ultimate resources of the candidates that gives to them the misleading character so often complained of. Extraneous aid is necessarily excluded on the occasion from all the candidates alike, and the same time is allowed them; but all the candidates are not equally affected by these limitations. When the trial is over, the forgetful men refresh their memories, and the slow and nervous men recover their wits, and the candidates who were foremost in the short race at the table, are nowhere in the long race of the outer world.