two million light-years, and it is very probable that we can penetrate to a depth of about five million light-years. A modern silver-onglass reflector of twelve feet aperture would give about six times as much light as the 60-inch reflector at Pasadena, and with this gain of two magnitudes in light power it is probable that we could penetrate into space at least twice this distance (theoretically 2.512 is the factor) or to a depth from which the light would take ten million years to reach the earth.

At the present time a 12-foot reflector is possible, and the depth to which we can penetrate is simply a question of telescopic power, which can be vastly but not indefinitely increased. And this is true. in spite of the extinction of light by cosmical dust in space. There is a limit to the distance to which any given telescope can penetrate, but it increases steadily with the aperture, since the only question involved is one of enormous light grasp.

It is to be hoped that a telescope of not less than 12 feet aperture may be built for use on the Milky Way. With such a giant instrument discoveries of the highest order might confidently be anticipated. A modern expansion of our views of the sidereal universe analogous to that which marked the great epoch of Herschel would follow, with the most beneficial effects upon every branch of astronomical science. Recent developments in many lines show that the epoch of great discoveries has not passed, but is in fact just beginning and the estimates here laid down, as to the depth and magnificent extent of the Milky Way, convey to us but a dim outline of the discoveries which await the builders of the giant telescopes of the future. In this great advance America may naturally be expected to take the leading part.

STARLIGHT, ON LOUTRE,

MONTGOMERY CITY, MISSOURI,

November 4, 1911.

years. The view adopted in my "Researches," Vol. II., 1910, however, is much more probable, since it gives continuity to the various types of bodies observed to constitute the sidereal universe. Note added Dec. 16, 1911.

PROC. AMER. PHIL. SOC., LI. 203 B, PRINTED MARCH 16, 1912.

CONTRABAND OF WAR.

BY JOHN BASSETT MOORE.

(Read February 2, 1912.)

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 citizens 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 to the belligerents but as a right belonging to neutrals. As between the belligerents, neither is required to grant to the other any privilege in respect of trade. On the contrary, they endeavor to subdue each other by attacks upon persons and upon property. This is their acknowledged right. But the rest of the world, composed of neutral powers, having no part in the quarrel and perhaps little concern in the issue, also has its rights. Its interests and convenience are not to be wholly subordinated and sacrificed to the exigencies of the one or the other of the belligerents,

each of whom, while desirous to preserve its own trade, would of course be glad to cut off altogether that of its enemy; and it is therefore acknowledged to be the right of neutrals to continue their commerce with the belligerents, subject only to the restrictions imposed by the law of contraband and of blockade.

In proceeding to the discussion of the particular subject of contraband, it is proper to advert to the confusion which seems so widely to prevail as to the legal position of the prohibited trade. The statement is frequently made that the trade in contraband of war is lawful, even though this broad affirmation be immediately followed by the admission that the trade is carried on subject to the risk of capture and confiscation of the goods, and of the detention, loss of freight and perhaps even the confiscation of the ship. This admission should alone suffice to put us on our guard. Merchandise is not confiscated, voyages are not broken up, ships are not condemned, for acts that are innocent; these severe and destructive inflictions are penalties imposed for acts that are unlawful. The confusion so often exhibited on this subject is due to the neglect of certain simple but fundamental truths, namely, that, in the international sphere, and particularly in matters of neutrality, the criterion of lawfulness is primarily furnished by international law and not by municipal law, lawfulness according to the latter by no means implying lawfulness according to the former; that, between the acts which neutral governments and their citizens are forbidden to commit and the acts which neutral governments are obliged to prevent, there is a wide distinction; that, by international law, acts that are unneutral in the sense of being unlawful are, from the point of view of their prevention and punishment, divided into two classes, (1) those which neutral governments are bound to prevent and punish, and (2) those which neutral governments are not bound to prevent and punish; that municipal law is supposed to prohibit, not all the unneutral acts which international law forbids, but only that part of them which neutral governments are bound to repress, the prevention and punishment of the rest being left to the belligerents as the parties primarily interested. Obviously, the determination of the question whether an act is lawful or unlawful depends not upon

the circumstance that the right or duty to punish it is committed to one agency or another, but upon the fact that it is or is not punishable. The proof that it is unlawful is found in the fact that its commission is penalized. All acts for the commission of which international law prescribes a penalty are in the sense of that law unlawful. That there are various acts of this kind, such as the supplying of contraband of war to a belligerent, which neutrals are not obliged to prohibit and punish by their municipal law, merely signifies that the interests of neutrals have not been regarded as negligible, and that there are limits to the burdens which they have been required to assume and to the exertions which they are required to make. Should a neutral government itself supply contraband of war to a belligerent it would clearly depart from its position of neutrality. The private citizen undertakes the business at his own risk, and against this risk his government can not assure him protection without making itself a party to his unneutral act.

These propositions are abundantly established by authority.
Maritime states, says Heffter, have adopted,

in a common and reciprocal interest, the rule that belligerents have the right to restrict the freedom of neutral commerce so far as concerns contraband of war, and to punish violations of the law in that regard. . . . This right has never been seriously denied to belligerents.1

Says Kent:

The principal restriction which the law of nations imposes on the trade of neutrals is the prohibition to furnish the belligerent parties with warlike stores and other articles which are directly auxiliary to warlike purposes.2

Says Woolsey:

ог

If the neutral [government] should send powder or balls, cannon rifles, this would be a direct encouragement of the war, and so a departure from the neutral position. . . . Now, the same wrong is committed when a private trader, without the privity of his government, furnishes the means of war to either of the warring parties. It may be made a question whether such conduct on the part of the private citizen ought not to be prevented by his government, even as enlistments for foreign armies on neutral soil are made penal. But it is difficult for a government to watch narrowly the operations of trade, and it is annoying for the innocent trader. Moreover, 'Heffter, "Droit Int.," Bergson's ed., by Geffcken, 1883, p. 384.

2

Kent, "Int. Law," 2d ed., by Abdy, 330.

the neutral ought not to be subjected by the quarrels of others to additional care and expense. Hence by the practice of nations he is passive in regard to violations of the rules concerning contraband, blockade,. and the like, and leaves the police of the sea and the punishing or reprisal power in the hands of those who are most interested, the limits being fixed for the punishment by common usage or law. . . . It is admitted that the act of carrying to the enemy articles directly useful in war is a wrong, for which the injured party may punish the neutral taken in the act.3

Says Manning:

The right of belligerents to prevent neutrals from carrying to an enemy articles that may serve him in the direct prosecution of his hostile purposes has been acknowledged by all authorities, and is obvious to plain reason. . . . The nonrecognition of this right . . . would place it in the power of neutrals to interfere directly in the issue of wars-those who, by definition, are not parties in the contest thus receiving a power to injure a belligerent, which even if direct enemies they would not possess.*

Says Creasy:

A belligerent has by international law a right to seize at sea, and to appropriate or destroy, articles, to whomsoever they may belong, which are calculated to aid the belligerent's enemy in the war, and which are being conveyed by sea to that enemy's territory.

Says Holland:

The neutral power is under no obligation to prevent its subjects from engaging in the running of blockades, in shipping or carrying contraband, or in carrying troops or dispatches from one of the belligerents; but, on the other hand, neutral subjects so engaged can expect no protection from their own government against such customary penalties as may be imposed upon their conduct by the belligerent who is aggrieved by it."

The fact that the supplying of contraband of war is considered as a participation in the hostilities is shown not only by the authority of writers, but also by numerous state papers.

Washington, in his famous neutrality proclamation of April 22, 1793, countersigned by Jefferson, as Secretary of State, announced that whosoever of the citizens of the United States shall render himself liable to punishment or forfeiture under the law of nations, by committing. aiding, or abetting hostilities against any of the said powers, or by carrying

Woolsey, "Int. Law," §§ 178, 179.

Manning's "Law of Nations," Amos's edition, 352.

Creasy, "First Platform of Int. Law," 604.

"Holland, Studies in Int. Law," 124-125. See, also, Moore, Digest of Int. Law, VII., 972-973.