PART THE FOURTH.

CHAPTER I.

INTERVENTION.

CCCXC. IN all systems of Private Jurisprudence, provision is made for placing upon the abstract Right of Individual Property such restrictions as the general safety may require. The maxim "expedit enim reipublicæ, ne quis sua re male utatur," belongs to the law of all countries (a).

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The Prætorian Interdict (b) of the Roman, the Injunction of the English Law, give effect to this principle by preventing the mischief from being done, instead of endeavouring to remedy it when done.

CCCXCI. Some analogous right or power must exist in the system of International Jurisprudence. "Neither," says Lord Bacon, "is the opinion of some of the schoolmen "to be received, that a war cannot justly be made but upon

(a) Inst. lib. i. viii. 22: "Chaque droit a ses limites: il est limité par les droits analogues de tous les membres d'une société."—Ahrens, Cours de Droit naturel ou de Philosophie du Droit, p. 296. (Brux. 1844.)

(b) Among the principal instances in which individual property is subjected to restriction on account of the general good are the following:

Cautio damni infecti, Dig. xxxix. t. ii.

Actio de tigno juncto, Dig. xlvii. t. iii.

Interdictum de glande legenda, Dig. xliii. t. xxviii.

Actio aquæ pluvia arcendæ, Dig. xxxix. t. iii.

Interdictum de arboribus cædendis, Dig. xliii. t. xxvii.

"a precedent injury or provocation; for there is no question "but a just fear of an imminent danger, though there be no "blow given, is a lawful cause of a war" (c). The Right of Self-Defence incident to every State may in certain circumstances carry with it the necessity of intervening in the relations, and, to a certain extent, of controlling the conduct of another State; and this where the interest of the intervener is not immediately and directly, but mediately and indirectly, affected. This remark brings us to the consideration of the doctrine of INTERVENTION (d).

CCCXCII. And first of all it should be clearly understood that the Intervention of bodies of men, armed or to be armed, uncommissioned and unauthorised by the State to which they belong, in a war, domestic or foreign, of another State, has no warrant from International Law.

It has been already observed (e) that it is the duty of a State to restrain its subjects from invading the territory of another State; and the question when such an act on the part of subjects, though unauthorised by the State, may bring penal consequences upon it, has received some con

sideration.

It is a question to which the events of modern times have given great importance, and as to which, during the last half-century, the opinions of Statesmen, especially of this country, have undergone a material change.

That this duty of restraining her subjects is incumbent upon a State, and that her inability to execute it cannot be alleged as a valid excuse or as a sufficient defence to the invaded State, are propositions which, strenuously contested as they were in 1818, will scarcely be controverted in 1879. The means which each State has provided for the purpose

(c) Essay on Empire.

(d) Günther, i. 287, ss. 8-12.

Heffter, 90.

Wheaton, Droit intern. t. i. pp. 77, 92.

Manning, Law of Nations, p. 97.

(e) Vide ante, s. ccxix. on the question Civitasne deliquerit an cives?

of enabling herself to fulfil this obligation form an interesting part of Public and Constitutional Jurisprudence, to the province of which they, strictly speaking, belong. The question, however, borders closely upon the general province of International Law, and upon the particular theme of this chapter; and some notice of the private law of States, especially of England and the United States of America, with respect to this subject, seems proper in this place, though the fuller consideration of it belongs to a later part of this work, in which the duties and rights of Neutrals in time of War are discussed.

The United States of America began their career as an independent country under wise and great auspices, and it was the firm determination of those who guided their nascent energy to fulfil the obligations of International Law as recognized and established in the Christian commonwealth of which they had become a member.

They were sorely tried at the breaking out of the war of the first French Revolution, for they had been much indebted to France during their conflict with their mother country, and were much embarrassed by certain clauses relating to Privateers in their Treaty with France of 1778; but in 1793, under the Presidency of Washington, they put forth a proclamation of neutrality, and, resisting both the threats and the blandishments of their recent ally, took their stand upon sound principles of International Law, and passed their first Neutrality Statute of 1794. The same spirit induced the Government of these States at that important crisis, when the Spanish colonies in America threw off their allegiance to the mother country, to pass the amended Foreign Enlistment Statute of 1818; in accordance with which, during the next year, the British Statute, after a severe struggle and mainly by the great power of Mr. Canning, was carried through Parliament.

Public feeling, however, was generally averse to it, and a notion that it assisted the despotic Powers of Europe in repressing the efforts of their subjects to obtain constitutional

liberty prevailed. It is a very remarkable fact that no public prosecution of an offender against the provisions of the statute appears to have been formally conducted, by order of the Government, in a court of justice, until the period of the recent American civil war; that is, nearly fifty years after the passing of the Act. Public opinion upon the subject had then undergone a revolution. The statute

when put to a practical test was found to be badly constructed, and to bear in its loose phraseology and disjointed sentences (ƒ) marks of the compromise which had enabled it to become law (g).

In substance, though not without variations judicially considered important, it agreed with the American Statute, which it was designed to follow. The machinery has been much improved by the Statute of 1870, which is calculated to strengthen the hands of the Executive (h).

It appeared from evidence laid before the English Neutrality Laws Commission, appointed by the Queen in 1867 (the recommendations of whose report are mainly incorporated in the present and recent Statute) that European States generally were furnished by their municipal law with the means of fulfilling their international obligations in this respect.

The question whether the powers originally given by the Statute 59 Geo. III. c. 69 (July 3, 1819), to our Government, and by that of the preceding but almost contemporaneous Statute of Congress (April 20, 1818), to the Government of the United States, are in excess or are in fulfilment of the International obligations of the neutral, receives a different solution from two schools of opinion as distinct upon this point as upon that of contraband. If the former school was correct in its opinion, then the English

(f) Rep. of the Alexandra, by Eyre and Spottiswoode, 1864, p. 551. (g) Regina v. Carlin, ship Salvador. Law Rep. 3 P. C. p. 218 (1870). (h) "33 & 34 Vict. c. 90.-An Act to regulate the conduct of her Majesty's Subjects during the existence of hostilities between foreign States with which her Majesty is at peace." (August 9, 1870.)

Government was already more than sufficiently armed with authority for the discharge of the International duty incident to a neutral. If the latter school was correct in its opinion, then there was, to say the least, a doubt whether the Statute, as at present interpreted by English Judges, did confer on our Government the requisite authority (i).

In considering this subject it is to be remembered that International Law is not stationary, and that precedents of history, taken from a period when the mutual relations of States were less clearly defined than at present, cannot be considered as decisive on the point at issue. Precedents may be found in the time of Queen Elizabeth, and later, in which large bodies of English subjects were enlisted under the authority of the Government in this country, and, displaying the English or Scotch standard, took a part in the civil war of a foreign State without open war being declared between that foreign State and England. But for more than a century, at least, such a state of things has been considered as inconsistent with the duties of a neutral State (j).

And although the only alteration suggested by the United States has been in favour of a relaxation of the stringency of the provision of their Municipal Act, I rejoice that the English Government has, by the last Statute, strengthened the hands of the Executive and given greater force and prominence to the maxim, that with respect to the external relations of the State, the will of the subject is bound up in that of his Government.

At all events, those who are interested in the progress of International justice may look with satisfaction upon the general state of feeling and usage throughout the civilized world upon the much-vexed question of Foreign Enlistment. There is no International subject perhaps in which, during

(i) See Report of Neutrality Laws Commission, 1868.

(5) At the time of the Crimean War the British Government took into their pay large bodies of mercenaries, designated Foreign Legions, and composed chiefly of natives of Germany and Switzerland, countries then at peace with Russia. See Hansard, Parl. Deb. vol. cxlii. p. 1152.