-those of Grotius, Vattel, Bynkershock, and others, no one would now deny that the Alabama, her stores, armament, crew, clothing, all obtained in England, and nowhere else, come within the meaning at present recognized. Grotius divides "contraband of war" into two classes: "those things which are useful only for the purposes of war, and those which are susceptible of indiscriminate use in war and in peace.' (Wheaton. Law of Nations, p. 509, ed. 1846.) A third class of articles, not of use in war, neutrals are permitted to convey or sell to the enemy. The second class includes money, provisions, ships and naval stores. The tendency of treaties and treatises has been to define more precisely what trade with a belligerent is prohibited to a neutral Government or people, and what is not, guarding with care and accuracy the supposed rights both of neutrals and belligerents. Between a hostile expedition fitted out and sailing from a neutral port with the consent of the neutral Power, express or implied, to prey upon a friendly Power, and articles of trade, even ships and armaments, purchased of private citizens belonging to the neutral nation, but intended in like manner for hostile purposes, it has been attempted, indeed, to set up a broad and recognized distinction. The author of the second of the English works named below-Oxford Professor of International Law without denying that the Alabama and her outfit, taken separately, fall into the class of contraband articles, endeavors to disprove the responsibility of England for supplying them to Southern rebels, on the ground that unless combined they did not constitute a hostile naval expedition, and they were not so combined within the territorial limits of England. He says: (p. 392.)

"To constitute an expedition by sea, these things are necessary: "A ship or ships capable of being used for war.

แ An armament, greater or less.

"A present intention that the ship and armament shall be used for war. "Till these are combined, there can be no such thing as a hosti'e expedition; uncombined, they are the materials or separate elements of an expedition."

Prof. Bernard admits the existence of every one of these elements in the case of the Alabama. He admits the injury done by this and other British-built and furnished ships, to the United States; but he strives to cover England with the two defenses of fraudulent methods pursued by the Confederates in obtaining British aid for warlike purposes, and the non-combination of the materials obtained while within British jurisdiction. He says (pp. 437, 438):

"The various contrivances by which these vessels were procured and sent to sea, were discreditable to the Confederate Government, and offen. sive and injurious to Great Britain. Such enterprises were, and were known to be, calculated to embroil this country with the United States; they were carried into effect by artifices which must be accounted unworthy of any body of persons calling themselves a government of any community making pretensions to the rank of an independent people. Every transaction was veiled in secresy, and masked under a fictitious purchase or a false destination. By such devices it was intended, no doubt, to escape the notice of a vigilant and powerful enemy; but it was also intended to blind the eyes of the government of Great Britain. Nor will any one attempt to dispute that the success of these projects was extremely annoying and irri tating to the American Government and people. It is true, as they have constantly repeated, that the ships were procured in England; it is true that they were armed in England; it is true that of the crews which manned them, a large proportion were British subjects; it is true, also, that they severely harassed American shipping, and inflicted heavy losses on American trade. All this is true; what is not true, I think, is that for these losses the British nation is justly responsible."

The defenses sought to be set up are vain, and England is by the Treaty held responsible. An "unarmed ship," as the Alabama has been incessantly in this discussion said to have been, when she left Liverpool, and an unshipped armament, issuing from such a port as freight in another vessel, is each, separately, contraband of war, and liable to seizure in transitu to its destination, or point of combination, on good grounds; and not only this, but more they are together such contraband articles that the neutral nation from which they issued is liable for all the depredations committed by them when "combined. Prof. Bernard says, that "vessels not armed for war, and not carrying arms as cargo," is "a description which

includes every ship that left this country during the war for the Confederate service." And vessels of that description, with that destination, which "harassed American shipping, and inflicted heavy losses on American trade," under the Treaty it will be found were "hostile expeditions," for which "the British nation is justly responsible." There is no pretense that they belonged to a Confederate navy — no such thing existed.

The letters of "Historicus" give pertinent and ample quotations from recognized authorities in support of the position, that by the law of nations neutral trade in articles contraband of war with either or both belligerents has been heretofore allowed to any extent. "In neutral territory it is absolutely lawful." The authorities are Ortolan, Bynkershock, Lampredi, Azuni, Wheaton, Kent, Story, Huskisson, Canning, the American State Papers, U. S. Reports, etc., etc. † This

*Insurances on contraband voyages are valid insurances, capable of being enforced at law." p. 142.

He asserts that the Foreign Enlistment Act does not in any wise "interfere with commercial adventure" or "control the absolute freedom of neutral commerce." It is directed "not against the animus vend ndi, but the animus belligerendi." (So Bynkershock.) "A subject of the Crown may sell a ship of war, as he may sell a musket, to either belligerent with impunity; nay, he may even despatch it for sale to the belligerent port.

* * The purview of the Act is to prohibit a breach of allegiance on the part of the subject against his own Sovereign not to prevent transactions in contraband with the belligerent." Pp. 168, 169. "To equip and arm a vessel of war within the United Kingdom is not per se an offense against the statute; it is the equipping and arming with intent to commit hostilities against a foreign government which constitutes the misdemeanor. The Act is directed not against the 'cauponantes bellum," (supplying for the sake of gain? Cf. Dame Europa!) "but against the belligerantes.' The mere sale or equipment for sale is in itself no evidence of such an intent, which must be proved conclusively on some better grounds." P. 169. "The equipping and arming of a ship may, or my not, be evidence of such an intent." Canning and Huskisson, and 7 Wheaton Reports case of the Santissima Trinidad — are cited in evidence. This is averred to be "both law and common sense, which are not so seldom coupled together as ignorant persons are apt to suppose.' P. 171. All this means intent to carry on war on the part of the builder, equipper, seller of the ship. A most convenient distribution of responsib lity for the technical evasion of consequences, the party of the first part, as a bond or deed would say, supplying the means of carrying on the fight," and the party of the second part supplying the intent. As they are not combined in the same party," no offense was committed! Cf. Bernard, p. 398. The question is one of particeps criminis as to intent.

Perhaps Pres. Woolsey's "Introduction to the Study of International Law," published three years before the volume of "Historicus," and ten

more.

writer has no words too severe or contemptuous for the opposite opinion, as held by Galiani, Hautefeuille, and Dr. PhilliIt is the "idle crotchet of Galiani,"-"unauthorized speculations," "presumptuous sciolism," "newfangled monstrosity"; of Hautefeuille he says, "for contempt of the existing code of international law; for intrepidity in the mis

years before that of Prof. Bernard, was unknown to these writers. He distinguishes between strict and imperfect neu rality, the latt r being impartial or qualified. Neutrality, he says, "is not an amicable act, when I supply two of my friends with the means of doing injury, provided I do as much for one as for the other. Such a relation is not that of a medius inter hostes, but of an impartial enemy, of a jack on both sides. Moreover, it is impartiality in form only, when I give to two parties rights within my territories which may be important for the one, and useless to the other." § 157. But he releases the "citizen or subject" from this strict rule, § 162, which binds the Sovereign. Cf. Bernard, 386, same doctrine. Aid to each party by neural trade he pronounces not at all impartial, but "partial now to one side, and now to the other." It must be unjust, tending only to "put off or render fruitless the effort to obtain redress with which the war began." § 169, a. But he declares that nothing can be regarded as contraband "unless so regarded by the law of nations, or by express convention between certain parties." § 180 He rejects the doctrine of occasional contraband. On the whole, Dr. Woolsey's statements lean to the English position. He would "by no means affirm that it is the duty of the neutral nation to prevent such trade (contraband) on the part of individuals by vigilance and penalty." § 169, a.

In his second edition, (1869,) Dr. Woolsey adds this language to what he had before said on violation of neutrality: [it is a violation of neutrality for a neutral nation] "to suffer its subjects to prepare or aid in preparing or augmenting any hostile expedition against a friendly power, as, for instance, to build, arm, or man ships of war with such a purpose in view, or to build them with this intent so far, as to make them ready for an armament to be put on board upon the high seas or in some neutral port." "It ought, however, to be said that the base arts of merchants and shipbuilders will often prevent governments from obtaining due evidence of the existence of such hostile designs; and that the distinction between what is merely contraband of war,- as a ship of war made for sale, if that be a fair instance, and that which is a hostile expedition, is sometimes so nice, that the present law of nations, and municipal law enforcing it, MUST allow many wrongs done to neutrals to slip through their fingers." 160. And in a note (to § 179,) he says: "Ships ready made and capable of use for purposes of war, have not occupied the attention of treaty-making powers.' Huebner declares them contraband. So Heffter. Phillimore says "that the sale of a ship for purposes of war is the sale of the most noxious article of war. The sale by a neutral of any ship to a belligerent is a very suspicious act in the opinion of the English and North American prize courts, and one which the French prize courts refuse to recognize." He then quotes Hautefeuille on the other side, (with dissent) as to a vessel yet unarmed, an opinion which should mollify "Historicus" largely ! — but, on the whole, himself sustains the English view still. What he says of improving the law of nations we notice further on. He asks in a new Note to 178 if "vessels made ready for an armament" are not "the beginning of a hostile expedition ? "

representation of history; for audacity of paradox," he is "without his equal, even in the modern license of coxcombical jurisprudence." And Dr. Phillimore's recent work he terms at one time, "an indiscriminate digest of opinions "; at another, "a heterogeneous pile of indiscriminate and undigested material." Such authors are "false lights," and "blind guides." He pours unmeasured contempt on the position of this eminent English jurist, that neutral trade in contraband should be prohibited because opposed to "the eternal principles of justice,"—" which, it should seem, on this subject," he says, "are hardly compatible with reason and common sense." He avers that if this doctrine were once to become international law,

"It is easy to perceive the monstrous and intolerable consequences that would ensue. Instantly upon the declaration of war between two belligerents, not only the traffic by sea of all the rest of the neutral powers of the world would be exposed to the inconveniences of which they are already impatient, but the whole inland trade of every nation of the earth, which has hitherto been free, would be cast into the fetters. The neutral government being on this assumption [its duty to prohibit the domestic trade in contraband] held responsible to the belligerent for the trade of its subjects within its own territory, must establish in every counting-house a sort of belligerent excise. It must have an official spy behind every counter, in order that no contract may be concluded for which either belligerent may call it to account, and in respect of which it may possibly find itself involved in war. This new fangled and, forsooth, liberal doctrine would introduce the irksome claims of belligerent rights into the bosom of neutral soil, from which they have been hitherto absolutely excluded, and in which they ought to have nothing to do. It would give to the belligerent state a right of interference in every act of neutral domestic commerce (!) till at last the burden would be so enormous that neutrality itself would become more intolerable than war, and the result of this assumed reform, professing to be founded on the principles of eternal justice,' would be nothing less than universal and interminable hostilities."

Imagine the horror of this able and accomplished Englishman when he finds this assumed reform, this speculation, this crochet, this sciolism, this monstrosity, recognized by the High Commission as sound international law (as between his own country and the nation against whose claims his denunciations