ejaculation "Utopia or Hell," but drastically discounting the significant truth that the world has always had the second alternative but never the first, the harbingers of a new dispensation of nature, rather than of doctrine, tell us that we should no longer waste time on international law, which is said to legalize war as well as to lack a sanction; on the reaffirmation and improvement of rules, which, it is ruefully remarked, surely will be broken; or on international courts, whose judgments, it is depreciatingly observed, cannot or will not be enforced; but that we must forthwith create a sanction, and, declaring war to be outlawed, be done with it.

To this lofty aspiration every benevolent mind must respond. But the predicament is not new. It is as old as man. That Grotius comprehended it and deliberately made his choice, is clearly shown by his comment upon lovers of peace in his own time who condemned all bearing of arms as unlawful and upon those who regard all war and all things done in it as lawful. "But," says Grotius, "this very endeavor of inclining too much to the opposite extreme is so far from doing good, that it often does hurt, because, when it is readily discovered that men urge some things too far, we are apt to slight their authority in other matters, which are perhaps more reasonable. A cure therefore is to be applied to both classes, as well to prevent believing that nothing is lawful as that all things are lawful."32

Well may we profit by this admonition. For, verily, if, while we await the capitulation of war to a declaration of its illegality, we spurn the present opportunity to work with all our might for the preservation and advancement of that system of law which, recording from age to age the slow progress of humanity, has established the distinction between combatants and non-combatants, enjoined the humane treatment of captives, limited the "Rights of War and Peace, London, 1738, p. XXV.

destruction and confiscation of property, enlarged the bounds of commercial freedom, and furnished the rules of decision by which international courts have in countless cases determined grave disputes and stilled the voice of strife, we shall only draw upon our generation the bitter fate portrayed by Milton in the solemn lines:

"Alas! from what high hope to what relapse

Unlooked for we are fallen."

Nor is it true in any reproachful sense that interna- ✔ tional law has legalized war. Grotius, in a celebrated` passage, states that he was impelled to write his treatise because he "observed throughout the Christian world a licentiousness in regard to war, which even barbarous nations ought to be ashamed of," and "a running to arms upon very frivolous or rather no occasions," after which, the war once begun, there "remained no longer any reverence for right, either Divine or Human, just as if from that time on men were authorized and firmly resolved to commit all manner of crimes without restraint."

Grotius, surveying the history of man, sought to ameliorate the evils of an institution which he could not destroy. Time has vindicated his fruitful choice. His successors have been guided by his example.

Those who, censuring international law for the recurrence of international wars and the excesses by which they are attended, would stake their fate on sanctions and outlawries, seem wholly to overlook the constant recurrence of civil wars, to whose appalling total during the last century the United States contributed a conflict of the first magnitude. I have often remarked that International wars will cease when civil wars end. Within the state there is legal organization and sanction beyond anything yet proposed in the international sphere, while the very phrase "civil" implies that the war is outlawed. Nevertheless, when obliged to characterize the conflict

then raging in the United States, the Supreme Court said: "Insurrection against a government may or may not culminate in an organized rebellion, but a civil war always begins by insurrection against the lawful authority of the government. A civil war is never solemnly declared; it becomes such by its accidents-the number, power, and organization of the persons who originate and carry it on." Those in insurrection, said the Court, "claim to be in arms to establish their liberty and independence, in order to become a sovereign state, while the sovereign party treats them as insurgents and rebels, who owe allegiance, and who should be punished with death for their treason." But, continued the Court, "the laws of war, as established among nations, have their foundation in reason, and all tend to mitigate the cruelties and misery produced by the scourge of war. Hence the parties to a civil war usually concede to each other belligerent rights. They exchange prisoners, and adopt the other courtesies and rules common to public or national wars." And the Court then adopted from Vattel, renowned for his learning and humanity, this profoundly illuminating passage:

"The common laws of war-those maxims of humanity, moderation, and honor-ought to be observed by both parties in every civil war. Should the sovereign conceive he has a right to hang up his prisoners as rebels, the opposite party will make reprisals; . . . should he burn and ravage, they will follow his example; the war will become cruel, horrible, and every day more destructive to the nation."33

Reared in the aftermath of the fraternal struggle which the rules of international law were thus invoked to mitigate, I early received the impression, which the study of history as well as experience in affairs has deepened, that, if we would keep men and nations at peace, we must remove the causes of their discontent, elevate their moral sentiments, inculcate a spirit of justice and toleration, "The Prize Cases, 2 Black, 635, 666, 667.

and compose and settle their differences. Tell me not that this is an idle effort. The time is rich in opportunities, and every opportunity is a summons to duty.

The speculative inquiry whether and to what extent it may be possible to create an international sanction, pales into insignificance beside the imminent and crucial question how we would use the sanction if we had it. This question cannot wait. We grope for an answer, day by day, in the darkness and confusion which invariably result from a great war, the disaster and disruption which it produces and the blinding hatreds which it engenders. But the faith of Grotius and Vattel is not dead. Shall we revive it and bear it on? And shall we, as faithful apostles, resolve not simply to recover the ground that has been yielded but also to make a farther advance? The present, the future turns upon our response; and may we, in this fateful hour, deserve the encomium, bestowed on a great ruler, that he was the irreconcilable enemy, and perpetual conqueror, not of any nation or man, but of injustice.

II

CONTRABAND OF WAR1

The word contraband (Italian, contrabbando; Spanish, contrabando) signifies something prohibited—a trade carried on, or an article imported or dealt in, in violation of some inhibition. Thus, smuggled goods are often spoken of as contraband.

The term contraband of war denotes commodities which it is unlawful to carry to the country, or to the military or naval forces, of a belligerent. By a "belligerent" is meant one of the parties to a war. Often the word "enemy" is used instead of "belligerent." Writers constantly speak of an "enemy" or "enemy's" country, an "enemy" ship, or "enemy" goods, meaning thereby merely that the country, or the ship, or the merchandise, is that of a party to a war, that is to say, of a belligerent government or of one of its citizens. Sometimes the word "hostile" is used instead of "enemy."

When war breaks out between two countries, the carrying on of trade by the inhabitants of the one country with those of the other becomes unlawful; but the same general interruption does not extend to the commercial intercourse between the parties to the war and third parties, called neutrals. The intercourse between the belligerents and neutrals continues. This continuance is regarded not as a favor granted by the belligerents but as a right be

1 Address delivered before the American Philosophical Society, at Philadelphia, February 2, 1912. Reprinted from the Proceedings, Vol. li, 1912.