1912] MOORE— CONTRABAND OF WAR. ]9 



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 there- 

 fore acknowledged to be the right of neutrals to continue their com- 

 merce 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 con- 

 traband, 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 deten- 

 tion, loss of freight and perhaps even the confiscation of the ship. 

 This admission should alone suffice to put us on our guard. Mer- 

 chandise 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 inter- 

 national sphere, and particularly in matters of neutrality, the cri- 

 terion 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 com- 

 mit 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, (i) 

 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 pre- 

 vention 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 



