CHAPTER VII

SALE OF MUNITIONS OF WAR

A further grievance, and a very serious one if it could be substantiated, is the ninth charge mentioned in Senator Stone's letter to Secretary Bryan, which reads as follows:

No interference with the sale to Great Britain and her allies of arms, ammunition, horses, uniforms, and other munitions of war, although such sales prolong the conflict.'

The question really is not whether sales of the commodities mentioned prolong the conflict, but whether, under the law of Nations as at present understood and practiced, such sales are legal. It is believed that there is a confusion in the popular mind between transactions to which the Government may not be a party and transactions to which the subjects or citizens of a neutral Government may be parties. It would be wrong for a Government, as such, to sell munitions of war to any belligerent or to all belligerents, but under existing international law it may be and it is legal for the subjects and citizens of a country to do what their Governments could not do, namely, to sell munitions to belligerent Governments. The time may come when citizens will be prohibited from doing what their Governments cannot lawfully do, but that time has not yet arrived, and until it does transactions of this kind will be legal. It is simply a matter of commerce, a matter of trade; and recognizing that it is trade of a kind to enable the belligerents receiving munitions to continue the war, the belligerent's enemy is given the right to intercept the articles and, without paying for them unless there is a treaty to that effect, to destroy them or to use them against the enemy for which they were intended.

The distinction is drawn between innocent articles which have no effect upon the war and articles of contraband which affect the war. In the one case they may not be seized, in the second case they may be; and international law puts it in the hand of the belligerent to

1Official text, American Journal of International Law, Special Supplement, July, 1915, p. 254.

protect itself by seizing the articles in question instead of imposing a duty upon the neutral to prevent their exportation. It is therefore not the fault of the neutral if the belligerent does not avail itself of the right given by international law to capture and confiscate the articles. It is the duty of the belligerent to do so; it is his fault if he fails to do so.

In the present case it is proper to remark that Germany's complaint would seem to be due to the fact that British control of the seas enabled Great Britain and its Allies to receive munitions of war from the United States, which would be impossible if Germany controlled the seas. It is a fact that Prussian subjects sold large quantities of ammunition to Russia during the Crimean War, and, since the establishment of the Empire, German subjects have supplied indifferently all belligerents who have needed munitions and have had the money to buy them; and, as admirably pointed out by Secretary Lansing, subjects of Germany and of its ally, Austria-Hungary, sold munitions of war to Great Britain in its war with the Boer Republics, notwithstanding the fact that the Boers had neither ships nor seacoast and could neither buy the commodities nor import them if bought. It is only fair to state, however, in this connection, that the Kriegsbrauch im Landkriege, issued in 1902, after the sales in question had been made, recognized the right of subjects to supply belligerents with munitions, but nevertheless condemns sales if they be in large quantities. Thus:

(b) The furnishing of contraband of war, in small quantities, on the part of subjects of a neutral State to one of the belligerents is, so far as it bears the character of a peaceable private business transaction and not that of an intentional aid to the war, not a violation of neutrality. No Government can be expected to prevent it in isolated and trivial cases, since it would impose on the States concerned quite disproportionate exertions, and on their citizens countless sacrifices of money and time. He who supplies a belligerent with contraband does so on his own responsibility and peril, and exposes himself to the risk of Prize.

(c) On the other hand, the furnishing of war supplies on a large scale is an altogether different matter; undoubtedly this represents actual service to a belligerent, and in most cases, warlike coöperation as well. Therefore, if a neutral State wishes to evidence its full impartiality in the war, it must do its utmost to prevent the furnishing of such supplies. The instructions to the customs authorities must be so clearly and so precisely set forth that, on the one hand, they declare the will of the Government to oppose with all available might such business trans

actions, but on the other hand, they do not arbitrarily restrict and cripple the entire domestic trade.1

But perhaps it is not unfair to observe that Germany is the land of munitions, that preparation for war is a cardinal Prussian doctrine, and that, overstocked with munitions, its enemies would fall an easy prey if there were a rule of law preventing them from buying munitions of war in the market open to all. At least a distinguished English publicist, writing in 1870 as an outspoken friend of Prussia in its war with France, so held, and the language of Goldwin Smith, directed against the French autocrat of 1870, is applicable to the Prussian autocrat of today. Thus, in a letter dated November 15, 1870, to Max Müller, then Professor of Sanscrit in Oxford University, complaining against a sale of munitions by American merchants to France, Goldwin Smith used this pointed, weighty, and appropriate language:

It is simply the American view of International Law, and, I venture to think, the right view.

It would be too much to expect that, whenever any two nations chose to disturb the peace of the world, all the other nations should be required to prohibit lawful trading, and to turn their Governments into detectives armed, as they must be for such a purpose, with arbitrary powers. You cannot draw any real distinction between arms and other things needed by belligerents. One belligerent needs rifles, another saddlery, a third cloth for uniforms, a fourth biscuit, a fifth copper or iron.

There is a special reason for not prohibiting the purchase of arms. If this were done a great advantage would be given, against the interests of civilization, to Powers which, during peace, employed their revenues in arming themselves for war instead of endowing professors. A moral and civilized Power, which had been benefiting humanity, would be assailed by some French Empire which had been collecting chassepots, and when it went to provide itself with the means of defense International Law would shut up the gunshop.2

Substitute for the chassepot the Krupp gun, and the language is wonderfully apt and impressive.

Secretary Lansing, in his reply to the Austrian protest against the manufacture and sale of munitions to one belligerent, stated Mr. Goldwin Smith's reasoning in different language, and added rea

1 Kriegsbrauch im Landkriege, pp. 71-72.

2 A selection from Goldwin Smith's Correspondence, collected by Arnold Haultain (London, 1913), p. 35.

sons of his own in support of the manufacture and sale of munitions, which make a strong appeal to the civilian as distinguished from the militarist. Before, however, quoting Secretary Lansing on this point, it will be of interest to quote an earlier passage of Mr. Lansing's note, as showing the difference between practice and precept. Thus:

In this connection it is pertinent to direct the attention of the Imperial and Royal Government to the fact that AustriaHungary and Germany, particularly the latter, have during the years preceding the present European war produced a great surplus of arms and ammunition, which they sold throughout the world and especially to belligerents. Never during that period did either of them suggest or apply the principle now advocated by the Imperial and Royal Government.

During the Boer War between Great Britain and the South African Republics the patrol of the coasts of neighboring neutral countries by British naval vessels prevented arms and ammunitions reaching the Transvaal or the Orange Free State. The allied Republics were in a situation almost identical in that respect with that in which Austria-Hungary and Germany find themselves at the present time. Yet, in spite of the commercial isolation of one belligerent, Germany sold to Great Britain, the other belligerent, hundreds of thousands of kilos of explosives, gunpowder, cartridges, shot, and weapons; and it is known that Austria-Hungary also sold similar munitions to the same purchaser, though in smaller quantities. While, as compared with the present war, the quantities sold were small (a table of the sales is appended), the principle of neutrality involved was the same. If at that time Austria-Hungary and her present ally had refused to sell arms and ammunition to Great Britain on the ground that to do so would violate the spirit of strict neutrality, the Imperial and Royal Government might with greater consistency and greater force urge its present contention.

It might be further pointed out that during the Crimean War large quantities of arms and military stores were furnished to Russia by Prussian manufacturers; that during the recent war between Turkey and Italy, as this Government is advised, arms and ammunition were furnished to the Ottoman Government by Germany; and that during the Balkan wars the belligerents were supplied with munitions by both Austria-Hungary and Germany. While these latter cases are not analogous, as is the case of the South African War, to the situation of Austria-Hungary and Germany in the present war, they nevertheless clearly indicate the long-established practice of the two Empires in the matter of trade in war supplies.1

1 Official text, American Journal of International Law, Special Supplement, July, 1915, pp. 167-168.

But to return to the matter in hand. Secretary Lansing, in a passage of his note above quoted, thus confirms and supplements Mr. Goldwin Smith's reasoning:

But, in addition to the question of principle, there is a practical and substantial reason why the Government of the United States has from the foundation of the Republic to the present time advocated and practiced unrestricted trade in arms and military supplies. It has never been the policy of this country to maintain in time of peace a large military establishment or stores of arms and ammunition sufficient to repel invasion by a well equipped and powerful enemy. It has desired to remain at peace with all nations and to avoid any appearance of menacing such peace by the threat of its armies and navies. In consequence of this standing policy the United States would, in the event of attack by a foreign Power, be at the outset of the war seriously, if not fatally, embarrassed by the lack of arms and ammunition and by the means to produce them in sufficient quantities to supply the requirements of national defense. The United States has always depended upon the right and power to purchase arms and ammunition from neutral nations in case of foreign attack. This right, which it claims for itself, it cannot deny to others.

A nation whose principle and policy it is to rely upon international obligations and international justice to preserve its political and territorial integrity might become the prey of an aggressive nation whose policy and practice it is to increase its military strength during times of peace with the design of conquest, unless the nation attacked can, after war had been declared, go into the markets of the world and purchase the means to defend itself against the aggressor.

The general adoption by the nations of the world of the theory that neutral powers ought to prohibit the sale of arms and ammunition to belligerents would compel every nation to have in readiness at all times sufficient munitions of war to meet any emergency which might arise and to erect and maintain establishments for the manufacture of arms and ammunition sufficient to supply the needs of its military and naval forces throughout the progress of a war. Manifestly the application of this theory would result in every nation becoming an armed camp, ready to resist aggression and tempted to employ force in asserting its rights rather than appeal to reason and justice for the settlement of international disputes.

Perceiving, as it does, that the adoption of the principle that it is the duty of a neutral to prohibit the sale of arms and ammunition to a belligerent during the progress of a war would inevitably give the advantage to the belligerent which had encouraged the manufacture of munitions in time of peace and which had laid in vast stores of arms and ammunition in antici