jects of a neutral power," or "in violation or contravention of the law of nations," among which was enumerated the carrying of "arms, ammunition, military stores or materials"; and declared that "all persons so offending, together with their ships and goods, will rightfully incur and be justly liable to hostile capture, and to the penalties denounced by the law of nations."12

The governor of Curaçao, acting under instructions of the minister of the colonies of the Netherlands, issued a decree prohibiting "the exportation of arms, ammunition, or other war materials to the belligerents."13

Portugal, while stating, in Article IV. of her neutrality decree of April 29, 1898, that "all articles of lawful commerce" belonging to subjects of the belligerent powers might be carried under the Portuguese flag, and that such articles belonging to Portuguese subjects might be carried under the flag of either belligerent, yet declared: "Articles that may be considered as contraband of war are expressly excluded from the provisions of this article."14

Were further proof needed of the unneutral and noxious character of contraband trade, it might be found in the doctrine of infection, under which innocent cargo is condemned when associated with contraband merchandise of the same proprietor, and the transportation penalized by loss of freight and expenses, and, under various circumstances, by confiscation of the ship.

Bearing in mind that the subject which we are considering is one of universal interest, directly affecting the world's trade and involving the imposition of heavy pecuniary penalties upon individuals, one ventures little in saying that among present-day questions of maritime law, touching intercourse between belligerents and neutrals, the most important is that of contraband. This may be affirmed in spite of the fact that, partly because of the lack of great maritime wars in recent times, its gravity may not at the moment be generally or popularly appreciated. The question of

12 Id., 35.

13 Id., 27.

14

Id., 61. See, also, the proclamation of the taotai of Shanghai, id., 20, and the instructions of the Haitian Government, id., 39.

blockade, although it once assumed immense proportions, to a great extent lost its importance when the principle was established that blockades in order to be legally valid must be effective, that is to say, maintained by a force sufficient to prevent access to the blockaded port or at least to render such access dangerous. Since the definite and universal acceptance of this principle, by which neutral commerce was relieved of the hazards to which it was formerly exposed from measures generically designated by the evil name of "paper blockades," the conflict between belligerent right and neutral right has been carried on chiefly in the domain of contraband, to which it may be said that all the legal uncertainties that formerly attended the subject of blockade have been transferred, with many additions and aggravations.

In order to demonstrate the paramount importance of the question of contraband, it is unnecessary to do more than point out that, if the claim of capture on this ground be not properly limited, the two great safeguards of neutral rights established after generations of conflict become utterly worthless. I refer to the rule that free ships make free goods and the rule that blockades must be effectively maintained.

First, let us consider the rule that free ships make free goods. By what has been called the common law of the sea, the goods of an enemy were subject to capture and confiscation without regard to the character of the ship in which they were borne. The enforcement of this rule necessarily involved the capture and bringing in of neutral vessels whose cargoes were alleged to be composed even in small part of the goods of a belligerent. The breaking up of the voyages of neutral vessels in this manner, with all the resultant losses, involved so much hardship to carriers in no way concerned in the conflict that, as early as the seventeenth century, there sprang up an agitation for the exemption of neutral vessels from molestation for carrying goods which happened to belong to a citizen of a belligerent country. Such an exemption gradually came to be embodied in treaties; and when on February 28, 1780, the Empress Catherine of Russia issued her celebrated manifesto, which formed the basis of the Armed Neutrality, she announced this principle:

2. Goods belonging to the subjects of the said nations at war are, with the exception of contraband articles, free [from capture] on board neutral vessels.

This definite enunciation of the rule that free ships make free goods was incorporated in the Declaration of Paris of 1856 in the following term:

2. The neutral flag covers the enemy's goods, with the exception of contraband of war.

The United States, Spain and Mexico (Mexico acting under the direct influence of the United States) did not adhere to the Declaration of Paris, because it undertook to abolish privateering; but the United States and Spain expressly accepted the rule that free ships make free goods, and this was proclaimed by the United States in 1898 as a principle of international law and was so accepted by Spain in the war between the two countries in that year. Moreover, Spain has since adhered to the Declaration of Paris in its entirety. But, note the exception to the rule. Enemy's goods are exempt from capture under the neutral flag, "with the exception of contraband of war." In other words, the operation of this rule and the protection intended to be afforded by it are wholly dependent upon the definition of contraband. Make the list of contraband long enough, and the rule becomes a farce.

Secondly, take the present law of blockade. At one time fictitious blockades were the bane of neutral commerce. In the twelve years that followed the breach of the Peace of Amiens-the days of the so-called Napoleonic wars-millions upon millions of neutral property were unlawfully confiscated for the alleged violation of or attempt to violate blockades which existed only on paper.

The declaration of the Empress Catherine above referred to contained the following rule:

4. To determine what constitutes a blockaded port, this denomination is confined to those the entrance into which is manifestly rendered dangerous in consequence of the dispositions made by the attacking power with ships stationed sufficiently near.

The Declaration of Paris of 1856 provided:

4. Blockades, in order to be binding, must be effective; that is to say, maintained by a force sufficient really to prevent access to the coast of the

enemy.

The world accepted this principle with joyful unanimity. We may, however, pertinently inquire, What is it worth, if the definition of contraband be not properly limited? The answer is not difficult. If the definition of contraband be so extended as to embrace in some form, positively or conditionally, practically all articles of commerce, the question of blockade ceases to be important. The security intended to be afforded to the neutral, by requiring the belligerent to make his blockade effective, becomes a mockery; the belligerent is practically relieved of the burden of maintaining blockades, for, instead of keeping his ships at certain points and hampering his offensive use of them, he can roam the seas at will and seize all articles destined to any belligerent port under the claim of contraband.

Let us consider the significance of the question of contraband in yet another relation. It is creditable to our humanity that proposals having a benevolent sound usually evoke a prompt and generous response, but it sometimes happens that the substance upon examination turns out to be less benevolent than the sound. We have lately heard much of the proposed immunity of private property at sea from capture. The United States is said to have advocated such a measure at both Hague Conferences. What has happened is actually this: Some of our earlier statesmen, notably Franklin, did in reality advocate a very wide exemption not only of property but also of persons, on land as well as on the sea, from the operations of war; and their example was followed by some of their successors. In 1857 the government of the United States, being embarrassed by its refusal to accede to the Declaration of Paris on account of the clause abolishing privateering, offered to adhere on condition that the powers go farther and exempt private property at sea from capture; but this offer was expressly subject to the exceptions of contraband and blockade. In 1907 Mr. Choate, on behalf of the Delegation of the United States, submitted to the second Peace Conferences at The Hague the following resolution:

The private property of all citizens or subjects of the signatory powers, with the exception of contraband of war, shall be exempt from capture or seizure on the sea by the armed vessels or by the military forces of any of

the said signatory powers. But nothing herein contained shall extend exemption from seizure to vessels and their cargoes which may attempt to enter a port blockaded by the naval forces of any of the said powers.

What therefore the United States since 1850 has proposed is, not that private property at sea shall be exempt from capture, but that it shall be so exempt, subject to the exceptions of contraband and blockade. The proposal, as thus qualified, no doubt had a substantial character in 1857, since the government of the United States at that day still recalled the limitations upon contraband for which it had traditionally contended. The case was the same when, by the treaty of commerce between the United States and Italy of February 26, 1871, it was actually agreed (Article XII.) that, in the event of war between the two countries, the private property of their citizens and subjects should be exempt from capture on the high seas or elsewhere, subject to the exceptions of contraband and blockade; for the treaty then proceeded (Article XV.) precisely to limit the scope of contraband, confining it to arms and munitions of war, and declaring that those articles "and no others" should be comprehended under that denomination.15 But at The Hague, in 1907, the importance of the exceptions was greatly enhanced by the separate presentation on the part of the United States of an extremely vague and sweeping proposition on contraband of war, in which provisions appear, no doubt for the first time in American diplomacy, in the category of absolute as well as in that of conditional contraband.16 Taking into consideration the objects of war, opinions will necessarily differ as to the merits and value of a proposal to exempt enemy ships and enemy goods as such from capture, while leaving in force the law of blockade and of contraband, without any precise definition or limitation of the latter. Such a proposal holds out no advantage to neutrals, but offers to belligerents the favor of placing them on the same footing as neutrals commercially. And even the extent of this favor would depend upon the definition and scope of contraband. Is there not, indeed, a certain incongruity in exempting from capture such an obviously important

15 Note A, infra, p. 42. 16 Note B, infra, p. 43.