required or asked, because not supposed to result in any inconvenience to the neutral power. For example, in a war between England and Russia, belligerent vessels must pass the sound over which Denmark claims and exercises imperial rights. So in a war between France and Russia, armed vessels might be obliged to pass through the neutral waters of the Dardanelles; but in neither of these cases would the passage be deemed a violation of neutral rights, nor would a capture by either power be invalidated by the fact of such passage, animo capiendi, to the place where the right of capture could be exercised. Where a free passage,' says Sir William Scott, 'is generally enjoyed, notwithstanding a claim of territory may exist for certain purposes, no violation of territory is committed, if the party after an inoffensive passage, conducted in the usual manner, begins an act of hostility in open ground. In order to have an invalidating effect, it must at least be either an unpermitted passage over territory where permission is regularly requested, or a passage under permission obtained under false representation and sugges tions of the purpose designed. In either of these cases there might be an original malfeasance and trespass that travelled throughout and contaminated the whole, but if nothing of this sort can be objected, I am of opinion that a capture, otherwise legal, is in no degree affected by a passage over territory in itself otherwise legal and permitted.' 1

§ 18. Such are the general prohibitions, recognised and established by the laws of nations, against any positive or even approximate acts of war in neutral territory. We are not aware that any modern writer on international law has questioned the soundness of the principle upon which they are founded. Moreover, the extent of a nation's sovereign rights depends, in some measure, upon its municipal laws, and other powers are bound, not only to abstain from violating such laws, but to respect the policy of them. The municipal laws of a State, for the protection of the integrity of its soil and the sanctity of its neutrality, are sometimes even more stringent than the general laws of war; the right of a sovereign State to impose such restrictions and prohibitions, consistent with the general policy of neutrality, as it

1 The Twee Gebroeders,' 3 Rob. 354.

may see fit, is undeniable. And all acts of the officers of a belligerent power against the municipal law of a neutral State, or in violation of its policy, involve that government in responsibility for their conduct.'

$ 19. The Congress of the United States have, by statutes, made suitable provision for the support and due observance of the rules of strict neutrality within American territorial jurisdiction. By the law of June 5, 1794, revised April 20, 1818, it is declared to be a misdemeanor for any citizen

1 Marcy's Correspondence, etc., on Recruiting, p. 50; Valin, Com. sur POrdonnance, t. ii. p. 274.

2 In 1866, the United States considered the expediency of extending the provisions of this statute, but eventually did not do so. In that year a case was brought before the District Court at New York, in which this statute was enforced by that court against a vessel, alleged to be intended for the Chilian service in the war between Chili and Spain. This vessel, the 'Meteor,' had been built as a ship of war for sale to the United States Government, but the civil war having terminated, the sale was not effected. She was acknowledged to have been built to carry eleven or twelve guns, and the negotiations of the agent of the owners for her sale to the Chilian Government were shown by conclusive evidence. The vessel was libelled in the District Court in February, 1866, but Judge Betts' decision in the case was not formally given until November.

In the elaborate judgment then delivered, the standard decisions of the Supreme Court are reviewed at length.

The following are some of the more important passages :

66

'The crime denounced is fitting-out and arming. It was strenuously urged by the counsel for the claimant, on the hearing, that the only crime created by the third section of the Act of 1818 is the crime of fitting-out and arning a vessel with the intent named in the statute; and that, although the attempt to commit that crime, or the procuring that crime to be committed, or the being knowingly concerned in committing that crime, is punishable under the statute, yet the body of the crime is the fitting-out and arming, and nothing short of that is punishable under the statute, either against the wrong-doer personally, or against the offending res; and the interpretation sought to be put by the counsel upon these words of the statute, or shall knowingly be concerned in the furnishing, fitting out, or arming of any ship or vessel with intent," &c., is that it is not necessary to the criminality of the individual that he should have performed every part of the crime, but it is enough if he was knowingly concerned in any one step in the chain of conduct which completed the criminality, or would have completed it if carried out, but still the crime must be the crime of fitting out and arming, either completed or attempted. But the court cannot adopt this interpretation of the statute. The mischief against which the statute intended to guard was not merely preventing the departure from the United States of an armed vessel, but the departure of any vessel intended to be employed in the service of any foreign power, to cruise or commit hostilities against any other foreign power with whom the United States are at peace. The neutrality of the Government of the United States, in a war between two foreign powers, would be violated quite as much by allowing the departure from its ports of an unarmed vessel with the clear intent to cruise or

of the United States, within the territory or jurisdiction thereof, to accept and exercise a commission to serve a foreign

commit hostilities against one of the belligerents, as it would be by permitting the departure from its ports of an armed vessel with such intent. If the intent to cruise or commit hostilities exists when the vessel departs, and the vessel is one adapted to the purpose, subsequent arming is a very easy matter. The facility with which this can be done was made manifest in the case of the "Shenandoah," and other vessels, which during the late rebellion left England unarmed, but with the full intent on the part of those who sent them forth that they should be used to cruise and commit hostilities against the United States, and were subsequently armed in neutral waters. It would be a very forced interpretation of the statute to say that it was not an offence against it to knowingly fit out a vessel with everything necessary to make her an effective cruiser, except her arms, and with the intent that she should become such a cruiser, because it should not be shown that there was any intent that she should be armed within the United States. The evil consequences which would flow from interpreting the statute to mean that the crime must include the arming of the vessel within the United States, become especially apparent in reference to that part of the third section which forbids the issuing or delivering a commission within the territory or jurisdiction of the United States, for any ship or vessel, to the intent that she may be employed for the purpose named in the section. Under such an interpretation of the statute it would be no offence to issue or deliver a commission within the United States for any vessel, unless such vessel were actually armed at the time, or perhaps were intended to be armed prior to her departure from the United States; and it would be no offence to issue a commission within the United States for a vessel fitted and equipped to cruise or commit hostilities, and intended to cruise and commit hostilities, so long as such vessel was not armed at the time, and was not intended to be armed within the United States, although it could be shown that a clear intent existed on the part of the person issuing or delivering the commission, that the vessel should receive her armament the moment she should be beyond the jurisdiction of the United States.'

"The "Santissima Trinidad" case.-Much reliance was placed by the counsel for the claim, in his summing up, upon the doctrine supposed by him to have been laid down by the Supreme Court in the case of the "Santissima Trinidad." That doctrine was stated by the counsel in various forms, but the principle contended for was, that freedom of commerce is allowed to a neutral to furnish to a belligerent warlike materials, or warlike vessels, as articles of merchandise or traffic; that while the principle of the law of nations is recognised, which prohibits neutral territory from being used by either belligerent as a vantage ground, from which he may sally forth to commit hostilities upon the other belligerent, yet the right of citizens of the neutral country to sell all that their industry produces for purposes of war, as fair matter of trade, to any belligerent, cannot be interfered with; that it is no offence and no violation of neutrality to sell a vessel of war, armed or not armed, in our ports to a belligerent power; and that there is the same right, under the law of nations, to sell in our ports an armed vessel, under such circumstances, that there is to sell guns or ammunition or any other raw material. At another stage of his argument the counsel maintained the proposition, hat unless it appeared affirmatively that the vessel was to sail out from be port of New York as an enlisted hostile ship of one belligerent, there as no criminality, although it should be made to appear by indis

prince, State, colony, district, or people, in war, by land or by sea, against any prince, State, colony, district, or people, with whom

putable proof that she had been built, fitted, armed, and equipped as a ship of war, complete and ready for action.'

The views thus pressed upon the court have, in its judgment, no foundation in public law, or in any decision that has been made by the highest judicial tribunal of the United States. The case of the "Santissima Trinidad" was decided by the Supreme Court at the February term, 1822.'

Judge Betts then gives an account of the facts of the case, and continues :-'In the course of his opinion, Mr. Justice Story discusses the point taken, that the "Independencia was originally armed and fitted out in the United States contrary to law, and says, "It is apparent that though equipped as a vessel of war, she was sent to Buenos Ayres on a commercial adventure," &c. These views of Mr. Justice Story were, as is apparent from the statement which has been made of the case, obiter dicta, and not necessary to the decision of the cause, restitution of the property being decreed upon the ground of the illegal augmentation of the force of the capturing vessel in our ports prior to the capture. The facts in regard to the commercial adventure of the " Independencia," referred to by Mr. Justice Story, as they appear in the report of the case, were that that vessel, having been a privateer during the war between the United States and Great Britain, was, after the peace, sold by her original owners, and loaded by her new ones at Baltimore, in January, 1816, with a cargo of munitions of war; that she sailed from Baltimore with them, and armed with twelve guns, part of her original armament, to Buenos Ayres, under written instructions from her owners to her supercargo, authorising him to sell the vessel to the Government of Buenos Ayres, if he could obtain a suitable price; and that she was sold at Buenos Ayres to parties who again sold her, so that she became a publiccommissioned vessel of the Government of Buenos Ayres. It was on these facts that Judge Story remarked that the vessel, though equipped as a vessel of war, was sent to Buenos Ayres on a commercial adventure, in no shape violating our laws or our national neutrality, and that there is nothing in our laws or in the law of nations that forbids our citizens from sending armed vessels to foreign ports for sale. If the "Meteor " was going out to Panama on a purely commercial adventure, to be sold there if a suitable price could be obtained, and if it appeared that there was no intent on the part of the owners or any other person that the vessel should be used to violate the neutrality of the United States, there might be some pretence that this case was within the principle thus laid down by Mr. Justice Story. But the whole testimony points in a different direction. The transaction with the agents of Chili at New York in regard to the Meteor' was, it is true, a commercial adventure, in so far that the vessel was sold, and that such sale was a matter of trade or commerce at New York between her owners and the agents of the Government of Chili. But in the sense in which Mr. Justice Story speaks of the sending of the "Independencia" to Buenos Ayres on a commercial adventure, there was no commercial adventure in the case of the "Meteor."

'The doctrines laid down in this case are the result of the legislative, executive, and judicial action of the United States:-The importance of this case, not merely in view of the pecuniary value of the vessel proceeded against, but also in respect to the principles of public law involved in it, have led the Court to a more extended discussion of those principles than would otherwise have been necessary. The

the United States are at peace, or 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, &c. ; or to fit out and arm, or to increase and augment, the force of any armed vessel, with the intent that such vessel be employed in the service of any foreign

court, however, entertains no doubt as to the correctness of the doctrines of public law which it has applied to the present case. These doctrines are the result of the legislative, executive, and judicial action of the public authorities and courts of the United States in a great variety of cases, and the court has nowhere found a more excellent summary of them than in Wheaton's International Law (8th Edition, with notes, by Dana, pp. 562, 563, note 215): "As to the preparing of vessels within our jurisdiction for subsequent hostile operations, the test we have applied has not been the extent with which the particular acts are done. If any person does any act, or attempts to do any act, towards such preparation, with the intent that the vessel shall be employed in hostile operations, he is guilty without reference to the completion of the preparations, or the extent to which they may have gone, and although his attempt may have resulted in no definite progress towards the completion of the preparations. The procuring of materials to be used knowingly and with the intent, &c. is an offence. Accordingly, it is not necessary to show that the vessel was armed, or was in any way or at any time before or after the act charged, in a condition to commit acts of hostility. Our rules do not interfere with bona fide commercial dealings in contraband of war. An American merchant may build and fully arm a vessel, and provide her with stores, and offer her for sale in our own market. If he does any acts as an agent or servant of a belligerent, or in pursuance of an arrangement or understanding with a belligerent, that she shall be employed in hostilities when sold, he is guilty. He may, without violating our law, send out such a vessel so equipped under the flag and papers of his own country, with no more force of crew than is suitable for navigation, with no right to resist search or seizure, and to take the chances of capture as contraband merchandise, of blockade, and of a market, in a belligerent port. In such cases, the extent and character of the equipments is as immaterial as in the other class of cases. The intent is all. The act is open to great suspicions and abuse, and the line may often be scarcely traceable; yet the principle is clear enough. Is the intent one to prepare an article of contraband merchandise, to be sent to the market of a belligerent, subject to the chances of capture and of the market? As, on the other hand, is it to fit out a vessel which shall leave our port to cruise immediately or ultimately against the commerce of a friendly nation? The latter we are bound to prevent, the former the belligerent must prevent."'

The judgment was given against the vessel, but she was eventually restored to her owners under bond, and what became of her afterwards does not appear.

It must be remembered that this opinion of Judge Betts was not reviewed by the Supreme Court, and is therefore of inferior authority.

The United States Foreign Enlistment Act arose from the construc tion put on the terms of the Treaty with France of 1778; the British Foreign Enlistment Act may be said to have arisen from the provision of a treaty with Spain of August 28, 1814.