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pation of war, the Government of the United States is convinced that the adoption of the theory would force militarism on the world and work against that universal peace which is the desire and purpose of all nations which exalt justice and righteousness in their relations with one another.1

But this grievance, if such it can properly be called, is far from new. As far as the United States was concerned, the question first arose during the wars of the French Revolution, when France complained of the sale of munitions to Great Britain, then its enemy, insisting that the sale, because it benefited Great Britain, was illegal, whereas the illegality in all probability would not have been noted and branded as such if the sale, and therefore the benefit, had been to France. In the interest of fairness it is only proper to remark that the people of the North were much put out with Great Britain during the Civil War because subjects of that country supplied the Confederate States with arms and ammunition. And no doubt in the future complaints of a similar kind will be made; but, if Secretary Lansing's views are just, it is believed that the world will be unwilling to renounce the means of self-defense at the behest of a nation making of war a business and of peace a preparation for war.

It is feared, however, that the above discussion does not adequately state the contentions of Germany and of Austria-Hungary. Both these Governments admit that it is lawful for citizens of the United States to manufacture and to sell arms to belligerents, but that the situation is changed if in fact sales can only be made to one belligerent instead of to all belligerents, and that the creation of factories during war for the express purpose of furnishing supplies which can, in the nature of things, only be sold to one belligerent, is a violation of the spirit of neutrality if it is not a breach of the letter of the law. Thus, in a memorandum of the Imperial German Embassy dated April 4, 1915, the German Ambassador calls attention to the difference between this war and previous wars, stating that, in times past, arms and ammunition might be obtained from many countries, whereas in the present case the United States was the only neutral Power in which arms and ammunition could be made and supplied to the belligerents. The German Ambassador felt justified because of this to contend that:

The conception of neutrality is thereby given a new purport, independently of the formal question of hitherto existing law. In contradiction thereto, the United States is building up a 1 Official text, American Journal of International Law, Special Supplement, July, 1915, pp. 168-169.

powerful arms industry in the broadest sense, the existing plants not only being worked but enlarged by all available means, and new ones built. The international conventions for the protection of the rights of neutral nations doubtless sprang from the necessity of protecting the existing industries of neutral nations as far as possible from injury in their business. But it can in no event be in accordance with the spirit of true neutrality if, under the protection of such international stipulations, an entirely new industry is created in a neutral state, such as is the development of the arms industry in the United States, the business whereof, under the present conditions, can benefit only the belligerent powers.1

It is believed that this contention is without foundation. If it is right to make and to sell arms in ordinary course of trade, it is difficult to see how and why it is wrong to increase the output; and if, because of a market, the business flourishes to such an extent as to become a branch of industry or an industry, the merchants are to be charged with unlawful conduct merely because they are successful. We should not make success the test of right or wrong, and if it is right to do a thing, success in doing it cannot properly be considered a crime.

Statements of this kind are ingenious; they are not, however, convincing, for if the arms and ammunition made in the United States did not reach Germany's enemies there might be, to use a phrase of national law, damnum absque injuria, and Germany would suffer no injury from exports of arms and ammunition, however large they might be, destined to its enemies, if German cruisers operating on the surface, or if German submarines, plying their calling below the surface, could intercept the arms and ammunition and prevent them from falling into the hands of their enemies. The control of the seas enabled Great Britain to secure and its allies to supply themselves with arms and ammunition manufactured in foreign parts. The inability to control the seas has deprived Germany and its allies of neutral markets. This is Germany's misfortune, it is not the neutral's fault, and no amount of casuistry can change this fact, for fact it is, and justify a grievance grounded on a misinterpretation of existing law.

There was, however, another answer to the contentions of the Imperial German Government that the United States should either sell to both or sell to neither; that if in fact munitions could only be exported to Great Britain and its allies because of British control

1Official text, American Journal of International Law, Special Supplement, July, 1915, p. 126.

of the seas, the United States should equalize matters by forbidding the export of munitions. The answer was made by Secretary Bryan in the following passage from a note to the Imperial German Ambassador to the United States:

In the third place, I note with sincere regret that, in discussing the sale and exportation of arms by citizens of the United States to the enemies of Germany, Your Excellency seems to be under the impression that it was within the choice of the Government of the United States, notwithstanding its professed neutrality and its diligent efforts to maintain it in other particulars, to inhibit this trade, and that its failure to do so manifested an unfair attitude toward Germany. This Government holds, as I believe Your Excellency is aware, and as it is constrained to hold in view of the present indisputable doctrines of accepted international law, that any change in its own laws of neutrality during the progress of a war which would affect unequally the relations of the United States with the nations at war would be an unjustifiable departure from the principle of strict neutrality by which it has consistently sought to direct its actions, and I respectfully submit that none of the circumstances urged in Your Excellency's memorandum alters the principle involved. The placing of an embargo on the trade in arms at the present time would constitute such a change and be a direct violation of the neutrality of the United States. It will, I feel assured, be clear to Your Excellency that, holding this view and considering itself in honor bound by it, it is out of the question for this Government to consider such a course.1

Unable to persuade the executive or legislative departments of the Government to put an embargo upon the export of munitions, one Pearson, a native of the Transvaal, attempted on two occasions to secure an injunction-in a Federal court in 1902 against the export of horses and mules by the British during the Boer War, alleging that by such export his property in the Transvaal was being irreparably injured and the war prolonged and that the export of contraband under such conditions was contrary to neutral conduct; and, in 1915, having become a citizen of the United States, he endeavored to have a court of Wisconsin enjoin the export of munitions to Great Britain, alleging that, by their export, property which he held in Germany was being irreparably injured, and the war itself prolonged, contrary to sound neutrality.2

Official text, American Journal of International Law, Special Supplement, July, 1915, pp. 128-129.

2 The first case is entitled Pearson v. Parsons, et al., 108 Federal Reporter,

CHAPTER VIII

MISCELLANEOUS COMPLAINTS

SECTION 1. SALE OF DUMDUM BULLETS

This grievance, like so many others without foundation, nevertheless deserves consideration because a specific complaint was made by the Imperial German Ambassador in a note dated December 5, 1914, to the Department of State, calling attention to "fresh violations of the Geneva Convention as well as of Section II, Article 23e of The Hague Convention of July 28, 1899, by the British Government. The violation of those Conventions consists in the use of dumdum bullets." After calling attention to "soft-nosed cartridges," which

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p. 491. The second, Pearson v. Allis-Chalmers Company, decided by the circuit court of Milwaukee County, State of Wisconsin, May 29, 1915, is to be found in the October, 1917, number of the American Journal of International Law. This second case discusses the treaty of May 1, 1828, between the United States and Prussia, the writings of publicists, and the practice of nations. A brief extract is quoted from Judge Turner's opinion:

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Counsel for the plaintiff readily conceded upon the argument that unless there is actionable wrong done or threatened by the defendant, no action in equity exists. War, today, is recognized by all nations as a legal act, when it is declared and conducted according to the rules of international law. When nations of the earth are ready to condemn war and accept the decision of an international court in lieu thereof, then the principle here urged by the plaintiff will become one of the governing rules of man, and anyone thereafter engaged in committing or furthering a state of war will be doing an act prohibited by the law of nations. lt, therefore, follows that citizens of a neutral government who have the right to trade with a belligerent and furnish arms and munitions of war, cannot be said to be engaged in doing an unlawful and immoral act in view of the well recognized fact that for so many years such conduct has been recognized and permitted by treaty as well settled principles of international law. It is the convention of nations that makes international law, and not the wishes or decisions of the courts. The courts have the duty of construing the rules as laid down by the nations in their conventions, out of which arise the principles governing them in their relations with each other; but the courts cannot, in the face of the well settled principles of international law as here indicated, hold or conclude that the doing by a citizen of an act which the executive branch of the government recognizes in the light of the law of nations to be legal and lawful, is an unlawful and immoral act of such a character as to give rise to that species of actionable wrong without which the jurisdiction of a court of equity cannot attach.

1 MSS. Opinions, Joint State and Navy Neutrality Board.

the Ambassador states were used by the British, the note continues to specify charges against American firms, which can best be stated. in the Ambassador's own words.

Thus:

2. It has come to the knowledge of the German Government that the British Government has ordered from the Winchester Repeating Arms Company 20,000 "Riot Guns," Model 1897, and 50,000,000 "Buckshot Cartridges" for the same. buckshot cartridge contains nine shots.

The

The use of those arms and munitions has not yet become known to civilized warfare.

3. The Union Metallic Cartridge Company of Bridgeport, Conn., on October 20th took out through Frank O. Hoagland the inclosed patent for the manufacture of a "Mushroom Bullet."

According to information the accuracy of which is not to be doubted 8,000,000 of those cartridges have been delivered to Canada since October of this year by the Union Metallic Cartridge Company for the armament of the English army. Cartridges made by that process, although cut through, cannot be distinguished, for their external appearance, from the regular full jacketed cartridges. The soldiers in whose hands this kind of ammunition is placed by the British Government are not in position to know that they are firing dumdum bullets. Whether the use of the mushroom bullet is contrary to the law of nations is open to discussion.1

In a later portion of this note the Ambassador said:

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Even though there should be no intention to use the ammunition described under 2 and 3 on the theatre of war in Europe, although it may be inferred from the magnitude of the order, it is very plain that the intention is to use them in the English colonies against the Boers, Hindoos, Turks, and Egyptians.

Even against this method of warfare which sets every rule of international law at defiance the Imperial Government raises its protest.

It cannot be within the spirit of the neutrality repeatedly declared by the Government of the United States that the American industry supply the fighting forces of the Allies with arms and ammunition the use of which is contrary to international law and constitutes a violation of the above cited Conventions to which the United States is a signatory party.2

1 MSS. Opinions, Joint State and Navy Neutrality Board.

2 This note is very characteristic of belligerent correspondence. It assumes, but does not prove, a certain action on the part of the enemy or of a neutral country. It then states in general terms that such action is contrary to international law, sometimes referring to a convention or a principle of international law, without, however, quoting the text.

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