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war for the benefit of Great Britain, with which country the Transvaal was then at war. The court refused the injunction, saying "that the case is a political one, of which a court of equity can take no cognizance, and which, in the very nature of governmental things, must belong to the executive branch of the government." In the course of his opinion, however, the judge stated in clear and unmistakable terms what he conceived the law on the subject of contraband to be. Thus, Parlange, District Judge, said:3
The principle that neutral citizens may lawfully sell to belligerents has long since been settled in this country by the highest judicial authority. In the case of the Santissima Trinidad, 7 Wheat. 340, 5 L. Ed. 454, Mr. Justice Story, as the organ of the supreme court, said: "There is nothing in our laws or in the laws of nations that forbids our citizens from sending armed vessels, as well as munitions of war, to foreign ports for sale. It is a commercial adventure which no nation is bound to prohibit, and which only exposes the persons engaged in it to the penalty of confiscation."
See, also, the case of the Bermuda, 3 Wall. 551,18 L. Ed. 200. 16 Am. and Eng. Enc. Law (2d Ed.) p. 1161, verbis "International Law," citing cases in support of the text, says:
"A neutral nation is, in general, bound not to furnish munitions of war to a belligerent, but there is no obligation upon it to prevent its subjects from doing so; and neutral subjects may freely sell at home to a belligerent purchaser, or carry to a belligerent Power, arms and munitions of war, subject only to the possibility of their seizure as contraband while in transit." Numerous other authorities on this point could be cited, if it was not deemed entirely unnecessary to do so.
The principle has been adhered to by the executive department of the government from the time when Mr. Jefferson was Secretary of State to the present day. Mr. Jefferson said in 1793:
"Our citizens have always been free to make, vend, and export arms. It is the constant occupation and livelihood of some of them. To suppress their callings—the only means, perhaps, of their subsistence—because a war exists in foreign and distant countries, in which we have no concern, would scarcely be expected. It would be hard in principle and impossible in practice. The law of nations, therefore, respecting the rights of those at peace, does not require from them such an internal derangement in their occupation." To the same effect arc numerous other expressions and declarations of the executive department of the government from the earliest period of the country to the present time. See 3 Whart. Int. Law Dig. par. 391, tit. "Munitions of War."
Affidavits in the cause purport to show that the vessels which make the exportation of mules and horses of which the bills complain are private merchant vessels; that they are commanded by their usual officers, appointed and paid by the owners;
'Pearson v. Parson (108 Fed. Rep. 461, 163).
that they are manned by their usual private crews, which are also paid by the owners; that they are not equipped for war; that they are not in the military service of Great Britain, nor controlled by the naval authorities of that nation; that they carry the mules and horses as they would carry any other cargo; and that the mules and horses are to be landed, not on the territory of the South African Republic or the Orange Free State, but in Cape Colony, which is territory belonging to Great Britain. If these affidavits set out the facts truly, it is difficult to see how a cause of complaint can arise. If a belligerent may come to this country and buy munitions of war, it seems clear that he may export them as freight in private merchant vessels of his own or any other nationality, as cargo could be exported by the general public.
These decisions of the United States during the Boer War are peculiarly applicable to the present complaints of Germany and Austria, for the Boer Republics were in a situation almost identical in respect of the supply of arms and ammunition from overseas with that in which Austria and Germany find themselves during the present war. Yet the fact that the Boers were prevented by British naval vessels from purchasing munitions of war did not deter Germany and Austria from selling large quantities of war material to the other belligerent, who happened to be in control of the seas. Indeed, the large extent to which the manufacture of munitions of war has for years been carried on in Germany has made her one of the chief purveyors of such materials to either one or the other of the belligerents in almost every war which has occurred during the last half century or more.
There would seem, therefore, to be as little doubt as to the practice as there is to the law of nations on this subject.
THE APPOINTMENT OF MR. ROBERT LANSING AS SECRETARY OF STATE 1
On April 1, 1914, Mr. Robert Lansing of New York took the oath of office as Counselor for the Department of State. On June 9, 1915, he was, upon the resignation of Mr. Bryan, designated Secretary of State ad interim, and on June 23, 1915, he was appointed Secretary of State of the United States.
This is indeed rapid promotion, but it is justified, although perhaps hardly explained, by the fact that Mr. Lansing's selection as Counselor was based solely upon merit, as evidenced by the ability and capacity he had shown during a period of more than twenty years in various
1 Although Mr. Lansing is a member of the Board of Editors of the Journal, it should be stated that he has had no knowledge of and has not been consulted in any way in the preparation of this comment.—Ed.
positions of trust under the Government, beginning with the Behring Sea Arbitration of 1892. The successful performance of the many delicate and varied duties of the Counselorship during the storm and stress of the great war justified his appointment as Secretary ad interim, and indeed a failure to designate him as such would have been contrary to precedent, as Mr. Lansing was the ranking officer of the Department under the Secretary of State and was Acting Secretary during the Secretary's absence.
The appointment as Secretary would have been justified by the years of experience preceding his Counselorship and by the mastery of affairs shown by Mr. Lansing during his tenure of this office, because it is an open secret, or, rather, it is common knowledge, that, as Counselor and as Secretary Bryan's chief assistant he handled the questions arising out of the war, which required a knowledge of international law and of diplomatic precedent. It was fitting, therefore, that Mr. Lansing should be appointed Secretary, and the President was amply justified in appointing him.
However, a knowledge of international law and of diplomatic precedent, while justifying, fails to explain, or explains but inadequately, the selection, because the Secretaryship of State requires, in addition, wit and wisdom, which are "born with a man," and it is unfortunately true, to quote again the happy phrase of one seasoned by years of public service, that "No man is the wiser for his learning." But it is believed that even wit and wisdom do not wholly account for the appointment. The United States is passing through a great crisis. Mr. Wilson, as President of the United States, is responsible for the foreign relations of the country, and it is essential that he have as Secretary of State one with whom he can work in easy and harmonious cooperation and in whose tact, judgment and discretion, as well as knowledge, he has complete and unlimited confidence. He knows from experience that Mr. Lansing possesses these qualifications, and as these qualifications are necessary to maintain the neutrality of the United States in the great war, by which we are not only industrially and commercially affected, but which influences our policy as well, the President disregarded precedent, which ordinarily suggests if it does not require the appointment of a political leader, and selected the man who, to his own knowledge, possessed the necessary qualifications for the Secretaryship of State in the crisis through which we are passing, and with whom, as shown by experience, he could work with the ease and harmony necessary for the dispatch of public affairs. Mr. Lansing had become familiar with the business of the Department and had shown himself to be possessed of the qualities which Mr. Wilson properly deemed to be essential. He was therefore appointed Secretary of State.2
Mr. Lansing's selection has been welcomed both by the press and by the public. It is, however, a peculiar pleasure to his fellow members of the American Society of International Law and to his associate editors of the American Journal of International Law, for Mr. Lansing was in a very special sense both a founder of the Society and of its Journal of International Law.
At the Lake Mohonk Conference on International Arbitration, held in 1905, Mr. Robert Lansing and Mr. James Brown Scott attended the Conference and interested its members in the formation of the American Society of International Law. Professor George W. Kirchwey, of Columbia University, with whom they had previously discussed the feasibility of forming such a society, moved at their request that "this Conference regards with favor the movement to establish a society of international law in the United States and of an American Journal of International Law, and pledges its earnest sympathy with the aims and purposes of such movement." A committee of seven was appointed, of which Mr. Oscar Straus was chairman and of which Mr. Lansing was one, to consider the formation of the Society, which reported at the final session of the Conference and recommended that an American Society of International Law be formed, that a Journal of International Law be established in connection therewith, and that a committee of representative gentlemen be selected in order to organize the Society upon a permanent basis. These recommendations were warmly approved by the Conference, and after much consideration and thought by Mr. Straus and the members of the committee the Society was permanently organized and a constitution adopted at a meeting of interested persons, held January 12, 1906, in the rooms of the Bar Association of the City of New York. At this meeting Mr. Lansing was elected a member of the Executive Council, and continues to serve as such. He was also elected a member of the Executive Committee of the Society as originally formed, and still continues to be a member.
At the meeting of the Lake Mohonk Conference on International Arbitration, held in 1906, the Executive Council of the Society decided
2 For a brief sketch of Mr. Lansing's career, upon his appointment as Counselor of the Department of State, see this Journal for 1914, Vol. 8, pp. 336-8.
to publish the Journal of International Law as its organ and appointed Mr. James Brown Scott its managing editor, with power to name an editorial board of not less than seven to cooperate with him in editing the Journal. Mr. Lansing was one of the seven, and Messrs. Lansing and Scott determined the content of the Journal and all the details of its publication, and Mr. Lansing contributed to the first number an article modestly entitled, "Notes on Sovereignty in a State." He has been from the first number, and is still, an editor of the Journal, to which he has contributed signed articles, editorial comments, and book reviews. He has attended the annual meetings of the Society, at which he has read papers, and has taken part in the discussions on the floor.
His fellow members of the American Society of International Law and his colleagues on the Board of Editors of the American Journal of International Law wish him well.
THE USE OF POISONOUS GASES IN WAR
Charges have appeared in the public press that the German army in the west has been using poisonous gases against the Allied armies. The German authorities are reported by the press to admit the truth of these charges, but they insist that the Allies first employed them and that they are merely following suit.
The Journal does not know the truth of the charges and cannot settle the question of priority. It would appear, however, that such action on the part of any belligerent is unjustifiable, as a signed declaration of the First Hague Peace Conference of 1899 forbids this means of warfare. The text of the declaration is as follows:
The contracting Powers agree to abstain from the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases.
The present Declaration is only binding on the contracting Powers in the case of a war between two or more of them.
It shall cease to be binding from the time when, in a war between the contracting Powers, one of the belligerents shall be joined by a non-contracting Power.
This declaration has had the good fortune to be ratified by all of the belligerents without reservations of any kind, and it would therefore seem to be binding upon them, supposing that any convention solemnly agreed to by the parties regulating their conduct in war is to govern their action.