at war, for military service, was unlawful; and no such vessel was entitled to an asylum in our ports. The equipment by them of government vessels of war, in matters which, if done to other vessels, would be applicable equally to commerce or war, was lawful. The equipment by them of vessels fitted for merchandise and war, and applicable to either, was lawful; but if it were of a nature solely applicable to war, it was unlawful. And if the armed vessel of one nation should depart from our jurisdiction, no armed vessel, being within the same, and belonging to an adverse belligerent power, should depart until twenty-four hours after the former, without being deemed to have violated the law of nations. (d) Congress have repeatedly, by statute, made suitable provision for the support and due observance of similar rules

of neutrality, and given sanction to the principle of them, * 123 as being founded in the universal law of nations. It is

declared to be a misdemeanor for any citizen of the United States, within the territory or jurisdiction thereof, to accept and exercise a commission to serve a foreign prince, state, colony, district, or people, in war, by land or by sea, against any prince, state, colony, district, or people, with whom the United States are at peace; or for any person, except a subject or citizen of any foreign prince, state, colony, district, or people, transiently within. the United States, on board of any foreign armed vessel, within the territory or jurisdiction of the United States to enlist or enter himself, or hire or retain another person to enlist or enter himself, or to go beyond the limits or jurisdiction of the United States, with intent to be enlisted or entered in the service of any foreign prince, state, colony, district, or people, as a soldier, or mariner, or seaman; or to fit out and arm, or to increase or augment the force of any armed vessel, with intent that such vessel be employed in the service of any foreign power at war with another power with whom we are at peace; or to begin, or set on foot, or provide, or prepare the means for any military expedition or enterprise, to be carried on from thence against the territory or dominions of any foreign prince or state, or of any colony, district, or people with whom we are at peace; or to hire or enlist troops or

(d) Instructions to the Collectors of the Customs, August 4, 1793. Mr. Jeffer son's Letters to M. Genet, of 5th and 17th June, 1793; his Letter to Mr. Morris, of 16th August, 1793; Mr. Pickering's Letter to Mr. Pinckney, January 16, 1797; his Letter to M. Adet, January 20, 1796. [Post, 124, n. 1.]

seamen for foreign military or naval service; or to be concerned in fitting out any vessel to cruise or commit hostilities in foreign. service against a nation at peace with us; and the vessel, in this latter case, is made subject to forfeiture. The President of the United States is also authorized to employ force to compel any foreign vessel to depart, which, by the law of nations, or by treaty, ought not to remain within the United States, and to employ the public force generally in enforcing the observance of the duties of neutrality prescribed by law. (a)1 In the case of the Santis

(a) Acts of Congress of 5th June, 1794, and 20th April, 1818, c. 83. By an act of Congress of March 10, 1838, c. 31, the provisions of the act of 1818 were enlarged and applied to any military expedition or enterprise against the territory of any foreign prince or state, or of any colony, district, or people, conterminous with the United States, and with whom they are at peace. Great Britain, by act of Parliament of 59 Geo. III., called the Foreign Enlistment Act, in like manner prohibited enlistments and equipments within the king's dominions, for warlike purposes in foreign states.

1 United States v. Kazinski, 2 Sprague, 7; 18 Law Rep. 254; 7 Op. Att.-Gen. 367; ante, 117, n. 1. The act of 1838, mentioned in note (a), expired by limitation at the end of two years.

The result of the controversy between the United States and England as to rebel privateers built and fitted out in English ports, has been to establish principles of dealing, at least between the two countries in question, which England had previously insisted did not belong to international law, but depended on municipal regulations, like the act referred to in the text. The principles are embodied in the following rules which were agreed to be taken as applicable to the case before the board of arbitration on the Alabama claims; but the protestation of England as to the principles in force at the time the claims arose should be noticed.

"A neutral government is bound —

'First, to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a power with which it is at peace; and also to use like diligence to prevent

"Thirdly, to exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties.

"Her Britannic Majesty has commanded her High Commissioners and Plenipotentiaries to declare that Her Majesty's Government cannot assent to the foregoing rules as a statement of principles of international law which were in force at the time when the claims mentioned in Article I. arose, but that Her Majesty's Government, in order to evince its desire of strengthening the friendly relations between the two countries and of making satisfactory provision for the

sima Trinidad, (b) it was decided, that captures made by a vessel so illegally fitted out, whether a public or private armed ship, were torts, and that the original owner was entitled to restitution, if the property was brought within our jurisdiction; but that an illegal outfit did not affect a capture made after the cruise, to which the outfit had been applied, had terminated. The offence was deposited with the voyage, and the delictum ended with the termination of the cruise. (c)

Though a belligerent vessel may not enter within neutral jurisdiction for hostile purposes, she may, consistently with a state of neutrality, until prohibited by the neutral power, bring her

prize into a neutral port, and sell it. (d) The neutral * 124 power is, however, at liberty to refuse this privilege, provided the refusal be made, as the privilege ought to be granted, to both parties, or to neither. The United States, while a neutral power, frequently asserted the right to prohibit, at discretion, the sale within their ports of prizes brought in by the belligerents; and the sale of French prizes was allowed as an indulgence merely, until it interfered with the treaty of England of 1794, in respect to prizes made by privateers. (a) In the (b) 7 Wheaton, 283.

(c) The seamen of a neutral nation may serve on board of a commercial vessel of a belligerent power, or be employed in a contraband trade on board of a neutral vessel, without being liable to punishment personally, by the municipal laws of his own country, or by the law of nations. Opinions of the Attorneys-General of the United States, i. 35.

(d) Bynk. b. 1, c. 15; Vattel, b. 3, c. 7, sec. 132; Martens, b. 8, c. 6, sec. 6; Hopner v. Appleby, 5 Mason, 77.

(a) Instructions to the American Ministers to France, July 15, 1797. Mr. Pick

future, agrees that, in deciding the questions between the two countries arising out of those claims, the arbitrators should assume that Her Majesty's Government had undertaken to act upon the principles set forth in these rules.

"And the High Contracting Parties agree to observe these rules as between themselves in future, and to bring them to the knowledge of other maritime powers, and to invite them to accede to them."

For discussions of the question, see Wheat. Dana's note 215; Bemis on American Neutrality, Boston: Little,

Brown, & Co., 1866; Mountague Bernard on Neutrality of Great Britain during the American Civil War, London: Longmans, 1870, Historicus, Int. Law, 151; [Hall, Int. Law, pt. 4, c. 3; 6 Revue de Droit International, 453 and passim.] See also the great case under the British act, The Alexandra, Attorney-General v. Sillem, London: Eyre & Spottiswoode, 1863, and letter of Earl Russell to the Lords of the Treasury, ib. vol. 2, app. i.; s. c. 2 Hurlst. & C. 431; and a very important case under the American act, The Meteor, Boston: Little, Brown, & Co., 1869, stated briefly, 3 Am. Law Rev. 234; 1 id. 401.

opinion of some jurists, it is more consistent with a state of neutrality and the dictates of true policy to refuse this favor; for it must be very inconvenient to permit the privateers of contending nations to assemble, together with their prizes, in a neutral port. The edict of the States General of 1656 forbade foreign cruisers to sell their prizes in their neutral ports, or cause them to be unladen; and the French Ordinance of the Marine of 1681 contained the same prohibition, and that such vessels should not continue in port longer than twenty-four hours, unless detained by stress of weather. (b) The admission into neutral ports of the public ships of the belligerent parties, without prizes, and under due regulations, is considered to be a favor, required on the principle of hospitality among friendly powers, and it has been uniformly conceded on the part of the United States. (c) 1

3. Enemy's Property in Neutral Vessels. But neutral ships do not afford protection to enemy's property, and it may be seized if found on board of a neutral vessel, beyond the limits of the neutral jurisdiction. This is a clear and well-settled principle of the law of nations. (d) 2 It was formerly a question whether

ering's Letters to M. Adet, May 24, and November 15, 1796. His Letter to Mr. Pinckney, January 16, 1797. It is deemed proper and safe for a neutral power to permit a prize, brought into port in distress, to be repaired, for the purpose of further navigation. Opinions of the Attorneys-General, i. 603.

(b) Valin, Comm. ii. 272.

(e) Mr. Jefferson's Letter to Mr. Hammond, September 9, 1793; Instructions to the American Commissioners to France, July 15, 1797; Cours de Droit Public, par M. Pinheiro-Ferreira, ii. 47. Such public vessels are exempt from the jurisdiction of the local authorities, but this exemption does not extend to private vessels. Vide infra, 156, note.

(d) Grotius, 1. 3, c. 6, sec. 6; Heinec. de Nav. ob Vect. c. 2, sec. 9; Bynk. Q. J. Pub. c. 14; Loccenius, de Jure Mar. et Nav. b. 2, c. 4, sec. 2; Molloy, de Jure Maritimo, b. 1, c. 1, sec. 18; Lampredi, du Commerce des Neutres, sec. 10, 11; Vattel, b. 3, c. 7, sec. 115; Answer, in 1753, to the Prussian Memorial; Consulat de la Mer, par Boucher, ii. c. 273, 276, sec. 1004.

*

* 125 the neutral ship, conveying enemy's property, was not liable to confiscation for that cause. This was the old law of France, (a) in cases in which the master of the vessel knowingly took on board enemy's property; but Bynkershoek truly observes, that the master's knowledge is immaterial in this case, and that the rule in the Roman law, making the vessel liable for the fraudulent act of the master, was a mere fiscal regulation, and did not apply; and for the neutral to carry enemy's goods is not unlawful, like smuggling, and does not affect the neutral ship. (6) If there be nothing unfair in the conduct of the neutral master, he will even be entitled to his reasonable demurrage, and his freight for the carriage of the goods, though he has not carried them to the place of destination. They are said to be seized and condemned, not ex delicto, but only ex re. The capture of them by the enemy is a delivery to the person who, by the rights of war, was substituted for the owner. (c) Bynkershoek (d) thinks the master is not entitled to freight, because the goods were not carried to the port of destination, though he admits that the Dutch lawyers and the Consolato give freight. But the allowance of freight in that case has been the uniform practice of the English admiralty for near two centuries past, except when there was some circumstance of mala fides, or a departure from a strictly proper neutral conduct. (e) The freight is paid, not pro rata, but in toto, because capture is considered as delivery, and

the captor pays the whole freight, because he represents his * 126 enemy, by possessing himself of the enemy's goods *jure belli, and he interrupts the actual delivery to the consignee. (a)

(a) Ord. de la Marine, liv. 3, tit. 9, des Prises, art. 7.

(b) Bynk. Q. J. Pub. lib. 1, c. 14.

(c) Vattel, b. 3, c. 7, sec. 115.

(d) B. 1, c. 14.

(e) Jenkinson's Discourse in 1757, p. 13; The Atlas, 3 C. Rob. 304, note; Answer to the Prussian Memorial, 1753.

(a) The Copenhagen, 1 C. Rob. 289.

board neutral vessels is inviolable unless contraband is a part of the positive law of nations.

2. That merchant ships and cargoes should not be captured unless they carry

contraband or attempt to violate a duly declared blockade.

3. The above rules not to apply to any vessels taking part, or destined to take part, in the hostilities. See 7 Revue de Droit International, 288.