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395 wars is not justified, for then it was not a question whether war material should be supplied to the belligerents, but who should supply it in competition with other nations. In the present war all nations having a war material industry worth mentioning are either involved in the war themselves or are engaged in perfecting their own armaments, and have therefore laid an embargo against the exportation of war material. The United States is accordingly the only neutral country in a position to furnish war materials. 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 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."

The willingness of American manufacturers and merchants to sell to Germany, said the Ambassador, did not alter the case. The fact was that sales and deliveries were being made to but one side, that a new and vast industry had suddenly sprung into existence under the artificial stimulus of the English, French, and Russian demand for arms and munitions, and that the United States had been transformed into a veritable arsenal for the supply of the armed forces of Germany's enemies, a supply upon which Germany and her allies could not draw.

The Austro-Hungarian government likewise, in a note of June 29, 1915, complained that the industry of manufacturing arms and munitions in America had "soared to unimagined heights."

"In order to turn out the huge quantities of arms, ammunition, and other war material of every description ordered in the past months by Great Britain and her allies from the United States, not only the full capacity of the existing plants, but also their transformation and enlargement, and the creation of new larger plants, as well as a flocking of workmen of all trades into that branch of industry; in brief, far-reaching changes of economic life encompassing the whole country, became necessary."

§ 554. Their Contentions Analyzed. It must of course be admitted that the situation to which the recent war gave rise was quite different from that created by the smaller wars of the

past, but in fact the difference was not one of principle, but rather one of degree. If the legal right of neutrals to sell arms and munitions to belligerents be admitted, and apparently neither the German nor the Austro-Hungarian government denied the existence of this right as a general principle of law,1 it would seem difficult in practice to introduce a distinction between the right to sell and export in small quantities and the right to sell and export in large quantities. Likewise the distinction between the sale of supplies produced by establishments already in existence at the outbreak of the war and the sale of those produced by newly created industries is not a sound principle for distinguishing between neutral and unneutral conduct. In effect, the distinction is similar to that made by Bluntschli and the German General Staff in the Kriegsbrauch im Landkriege between sales en gros and sales en détail. Like most quantitative distinctions, it is more or less arbitrary, rests upon no juridical principle, and the attempt to apply a rule based on such a distinction would in practice lead to insuperable difficulties, as the German writers Geffcken and von Bar, as well as many others in England and America, have pointed out. Likewise, the contention put forward by the German and Austro-Hungarian governments that the conception of neutrality was given a "new aspect” by the fact that in the recent war the markets of but a single State became the chief, if not the sole, source of foreign supply for the belligerents, cannot be admitted to be sound. Such a contention rests on the assumption that traffic in arms and munitions is legitimate, so long as the markets of other neutral Powers are open to belligerents, but that it ceases to be consistent with the spirit of neutrality the moment the number of such States is reduced to one. It is tantamount to maintaining that while all or several neutral Powers may permit the sale and exportation of war materials, one alone may not do so.

1 The German government, in a note of December 15, 1914, had already stated that "under the general principles of international law no exception can be taken to neutral states letting war material go to Germany's enemies from or through neutral territory."

Cf. also the remarks of Dr. Dernburg before the American Academy of Political and Social Science in the Annals of the Academy, July, 1915, p. 195: "I want to state here most emphatically that Germany at no time has disputed the right to ship and sell arms."

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Similarly, the view advanced that since the quantity of arms and munitions sold to belligerents in former wars was comparitively small, the practice in those wars cannot be regarded as precedents to justify a traffic of such proportions as that which the business assumed in the late war, ignores the difference in the magnitude of those wars and that of the recent conflict. It was stated by the British minister of munitions that less ammunition was used by the British forces during the entire Boer War than was consumed in a single well-known battle during the late war.

In a note of July 16, 1915, the German Imperial government made a plea for an equalization of advantages as between the Entente allies and the Central powers:

"While a trade in arms existed between American manufacturers and Germany's enemies estimated at many hundred million marks, the German government had not made any charge of a formal breach of neutrality. The German government could not, however, do otherwise than to emphasize that they were placed at a great disadvantage through the fact that the neutral powers have hitherto achieved little or no success in the assertion of their lawful right of trade with Germany, whereas they make unlimited use of their right to tolerate trade in contraband with England and Germany's other enemies. Admitting that it is the express right of neutrals not to protect their lawful trade with Germany, and even to allow themselves knowingly and willingly to be ordered by England to restrict such trade, it is on the other hand not less their good right, although unfortunately not exercised, to stop trade in contraband, especially the trade in arms, with Germany's enemies. . . . In regard to the latter point (contraband trade especially in war materials by neutral merchant vessels), the German government ventures to hope that the American government upon reconsideration will see their way clear to a measure of intervention in accordance with the spirit of true neutrality."

Again in the memorandum of April 4, 1915, the German Imperial government observed that, "It is necessary to take into consideration not only the formal aspect of the case, but also the spirit in which the neutrality is carried out "; and further that "If it is the will of the American people that there shall be a true neutrality the United States will find the means of preventing this one-sided supplying of arms, or at least of utilizing it to protect legitimate trade with Germany, especially that in food-stuffs." Likewise the Austro-Hungarian government in a note of June 29, 1915, raised the question whether in view of the "absolute exclusion" of Germany and Austria-Hungary

from the markets of America, it "would now seem possible, even imperative, that appropriate measures be adopted toward bringing into full effect the desire of the Federal government to maintain an attitude of strict parity with respect to both belligerent parties."

It will be seen from these extracts that the German and Austro-Hungarian governments did not allege any violation of the letter of the law governing the rights and duties of neutrals, but they contended that the sale of arms to one belligerent when the fortunes of war had deprived the other of access to neutral markets was contrary to the spirit of neutrality, and the inequality of opportunity thus resulting should have been removed by the neutral through an embargo on sales to all belligerents; that is, a "strict parity" should have been restored and the disadvantages of one eliminated by depriving the other of the fruits of a victory which he had won through his superior naval power. To this somewhat extraordinary contention, Secretary Lansing replied in a note of August 12, 1915, that the American government could not accede to such a proposition:

"The recognition of an obligation of this sort, unknown to the international practice of the past, would impose upon every neutral nation a duty to sit in judgment on the progress of a war and to restrict its commercial intercourse with a belligerent whose naval successes prevented the neutral from trade with the enemy. . . . Manifestly the idea of strict neutrality now advanced by the Imperial and Royal government would involve a neutral nation in a mass of perplexities which would obscure the whole field of international obligation, produce economic confusion and deprive all commerce and industry of legitimate fields of enterprise, already heavily burdened by the unavoidable restrictions of war."

As has been said, the situation of the South African Republics during the Boer War was practically identical with that of Germany and Austria-Hungary during the late war. Great Britain had succeeded in commercially isolating those republics and depriving them of access to neutral markets, but the German government at the time did not consider it a violation of the spirit of neutrality to permit German manufacturers to sell and export arms to one of the belligerents when the fortunes of war had deprived the other of access to German markets. As Secretary Lansing in his reply to the Austro-Hungarian remonstrance pertinently remarked,

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"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."

$555. The Question of Moral Obligation to Forbid Such Trade. But apart from the special circumstances of the late war, which it was urged, made it desirable to alter the existing rule, it was argued that there were general considerations of morality and public policy which condemned the present practice. The furnishing of arms and munitions to belligerents, it was contended, was contrary not only to the spirit of genuine neutrality, but also to the best standards of international ethical conduct as well as to sound principles of national and international policy. Thus Senator Works of California in a speech in the Senate on January 27, 1916 said:

"I believe the trade to be immoral and demoralizing to the people of the United States. I believe that most of the complications that have grown up between this and foreign nations now at war have been the result of the trade in munitions of war. I believe that if it had not been for the fact that we are dealing in that nefarious trade, the people upon the Lusitania would not have lost their lives. We have in effect made our country a party to the war across the ocean. It is our ammunition, our shot and shell, that are taking the lives of the citizens and subjects of friendly nations in Europe. We cannot justify ourselves in that position or in that trade by saying that it is allowed by the laws of neutrality. There is something higher that should control the people of the United States than the mere strict law of neutrality." 1

It was the veriest cant and hypocrisy, it was said, for a people to pray for peace on Sunday and during the rest of the week devote their energies and resources to the manufacture of the instruments of death for the perpetuation of a struggle in which millions of lives were being sacrificed. Besides prolonging

1 Cong. Rec., 64th Cong., 1st sess., p. 1797. Cf. also the remarks of Senator Kenyon to the same effect, ibid., p. 1793; of Senator LaFollette, ibid., p. 1800; of Senator Ashurst, ibid., p. 1796; of Senator Robinson, ibid., p. 1797; of Representative Ricketts, ibid., pp. 2657-2658; of Senator Hitchcock, ibid., 63d Cong. 3d sess., p. 3938; of Representative Porter, ibid., App., pp. 583-585; of Representative Vollmer, ibid., App., pp. 735-736. Cf. also a pamphlet entitled Private Property and the Nation's Honor, by Aked and Rauschenbuch; Burgess, The European War, ch. VII; an article by von Mach, "The German View Point," Boston Transcript, April 14, 1915, and Butte, Proceedings of the American Society of International Law, 1915, p. 129.