Some Qtiestions of International Law. violation of our own Neutrality Law.1 On the other hand our Government could not permit the levying or recruiting of troops in this country by agents or friends of the Japanese Government. Our Neutrality Law also forbids any one from "fitting out and arming," or "knowing ly being concerned in the furnishing, fitting out or arming of any ship or vessel with in tent that such ship or vessel shall be em ployed in the service" of either belligerent. Since the incorporation of this principle in the Treaty of Washington in 1871 and the Geneva Award of 1872, no one is likely any longer to deny that this rule forms an inte gral part of International Law, and the pro posal to present Japan with a war-vessel, if made, was on the face of it absurd. The Government of the United States would have been bound by its international obliga tions to have prevented the fitting out, arm ing, and the equipping within its jurisdiction, as well as the departure, of such a vessel, and every contributor to such a fund would have been liable to arrest and punishment for a violation of the Neutrality Act of 1818. "The duties of neutrals happily do not impose any checks upon the humane im pulses of the citizens of neutral countries, or upon the practical expression of their sym pathies in case of the wounded, the widows. and the fatherless, 2 and there can be no sound objection to contributions to any Red Cross Society, at least on the part of neutral individuals." As to the question whether American sympathizers with Japan have a right to make gifts or voluntary contributions to a fund set aside for the purpose of assisting 1 This would only be the case if they actually enlisted or were hired or retained to go abroad with intent to be enlisted. It would not be a crime, under our neutrality law, for them merely to leave this country with intent to enlist. U. S. v. Kazinski. 2 Sprague 7. For official opinions on the subject of enlistment, see Wharton's Digest III., §392. 2 From editorial in London Times for Febru ary 13, 1904.
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Japan to carry on the war, the case is by пэ means so clear. There can, however, be no real question as to the legality of the pur chase of war-bonds as an investment. Of course it would be a flagrant breach of Inter national Law if such a loan were in any way to be advanced, supported, or guaranteed by a neutral Government. Although the legal ity of loans by neutral individuals to bel ligerent States has been denied by some emi nent publicists,3 such a position is not in conformity with the practice of nations. "Money is a form of merchandise, and neu tral individuals constantly trade in it with belligerent governments. It can be trans ferred with the greatest ease, far more easily in fact, than other commodities. Commer cial transactions in it could not be prevented except by an amount of espionage and inter ference which would outrage human nature and render all trade impossible. No war of any magnitude takes place without a free resort by the combatant povers to neutral money markets. The stock in loans issued to provide funds for the conflict is bought and sold in other countries, just as freely as shares in foreign mines and railways. . . . When practice points entirely in one direc tion it is idle to pit against it a so-called rule 'E.g.. by Bluntschli, §768; Phillimore. III.. §i4i; Calvo. §§2628-30 (5th ed.); and Halleck (Baker's ed.), II.. p. 195. The cases De Wutz v. HendricVs, Common Pleas. 1824. 9 Moore, 586; Thompson v. Powles. Chancery, 1828, 2 Simon 194; and Kennctt t1. Chambers, U. S. Supreme Court. 14 How ard 38, upon which the view of these publicists seems to be founded, merely go to the extent of holding that contracts to raise loans for the pur pose of aiding communites whose belligerency or independence has not been recognized are illegal or invalid. This is a good example of the exces sive deference which is sometimes paid to the decisions of judges whose opinions are often mere obiter dicta or are given a more extended applica tion than they deserve. In dealing with the deci sions of courts we should always remember that they are necessarily of limited application both es to subject matter and in respect to nationality. We should never forget that international Law is based upon the general practice of nations. This is one of the greatest objections to the teaching of International Law by the main or exclusive use of the Case System."
