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sought to define, and in a material degree to abridge also, the rights of the private neutral citizen to deal in articles contraband of war. In England, the statute law on this subject 3 contained in two Acts of Parliament, known respectively as the Foreign Enlistment and the Customs Consolidation Acts.† The Customs Consolidation Act, to which we need here no further allude, empowers the Queen to prohibit every species of contraband but ships, which are left to be dealt with under the Foreign Enlistment Act; and it is upon the construction of this latter statute, and chiefly upon the famous seventh section, that the conflict as between municipal and international law, on the question of contraband, almost exclusively

turns.

Now what this Act, the Foreign Enlistment Act, did was this it abridged the right which generally, under what we may term the common law of nations, private persons enjoyed of manufacturing, and delivering pursuant to contract, or exporting, contraband articles, including armed vessels of war. And, in the next place, it legislates for this latter class, armed ships, expressly; regarding it as a commodity the building, "equipping," and furnishing of which is attended with certain incidents of a peculiarly dangerous kind, as tending to compromise the neutrality of the State of which the person who builds, or contracts to build, the ship is a subject. Some of the incidents which no doubt induced the Legislature to restrict the trade in ships, while it left that in other contraband comparatively free, were these: that a person who carries ordinary contraband to a belligerent is engaged in a mere mercantile adventure which does not become a warlike operation until the contraband having escaped capture is delivered in the belligerent country. A ship is, on the other hand, not only in itself an engine of war, but carries other engines of war and men to work them. She has also a nationality, and for some purposes is, as it were, an inhabited territory, exempt from the civil jurisdiction of the foreign country into whose ports she may come. So that, as has been remarked, a vessel of this kind armed, equipped, and manned, is in fact a floating hostile territory, and the elements of armament are combined in her whether she is on the high seas or within the territory of a neutral State. And moreover, the person who deals in ordinary contraband, trades with his own goods for his own profit; but if a belligerent State by its agent orders ships of war to be built and equipped in a neutral State, there is, at least on the side of one of the parties to the contract, no object of commercial ad

† 16 & 17 Vict. c. 107.

*59 Geo. III. c. 69. The "Exchange," 7 Cranch Rep., p. 116. The "Invincible," Wheaton's Rep., p. 238.

vantage, but a simple operation of war. These considerations, and others which might be named, no doubt were sufficient to induce the Governments both of England and the United States to make the equipment and supply of armed vessels the subject of exceptional and restrictive legislation, in order, by positive enactments, to secure a remedy for an evil which the ordinary law of nations was inadequate to meet. But the mere building of ships, even of ships of war, is not, it should be observed, forbidden. That important branch of British industry remains untouched by any legal disability; it is only when the vessel is, to use the words of the Act, fully equipped, furnished, fitted cut and armed," in any part of the United Kingdom or the Colonies, with the intention, moreover, of "conizing or committing hostilities against" a foreign Government with whom this country shall be at peace, that the offence struck at by the Act is complete. And further, if the forbidden acts are committed, though by a British subject, yet out of the Queen's dominions, they constitute no offence at all; so that in view of the entire section dealing with this subject, the conclusion is plain that it is not so much the act of "equipping," &c., armed vessels, or the intention of using them in "conizing or committing hostilities" that was in view of the Legislature in passing the Act. Rather was it the place, a British port here or abroad, which it was designed to preserve from being made ports of hostile equipment, a base as it werc of unfriendly operations against a belligerent power with whom this country might be at peace.†

III. This short account of the law of nations, and of the express legislation upon this important subject, will lead us to examine how far these systems of law, as we may term them, international and statute, fit into each other; and if antagonistic, to what extent they are in conflict. This inquiry will bring us face to face with the Alabama Treaty in its present phase.

It may then at the outset be stated, that any attempt to interpret an Act, such as the Foreign Enlistment Act, by the light of international law must necessarily fail. The scope

See as to the difference between arms, and armed vessels, 3 Jefferson's Works, pp. 558, 571.

And for a similar reason the Government of the United States has always held independently of any statutes that the act of commissioning vessel in the port of that country to cruise against a belligerent with whon they were at peace, was an inceptive act of war, and, as such, incompatible with the territorial sovereignty of the United States. (Jefferson's Works, Vol. 3, p. 571.) And so it was observed by Mr. Justice Thompson, in giving the judgment of the Supreme Court, in the case of United States v. Quincey, (6 Peter's Rep., 445), that "all latitude necessary for commercial purposes is given to our citizens, and they are restrained only from such acts as are calculated to involve the country in war."

and aim of the two are, as may be easily seen, distinct, and indeed in more than one point at variance; nor is the spirit of international law at all the same as that which prompted the direct legislation which has taken place. A leading principle of the law of nations is, as we have seen, to encourage the freedom of commerce in favour of the neutral merchant or manufacturer. Statute law, on the other hand, in one important point at least, restricts this commerce, and makes that freedom subordinate to what are considered to be the larger necessities of Government. And hence it is that the Foreign Enlistment Act with us, or the similar Act passed by the United States Act of Congress of 1794, and re-enacted in 1818, are not to be taken as the measure of international obligations as arising under or defined by the law of nations; they are not the expression of that law, nor to be construed in the light of it. The object of the framers of the Act was not to compel compliance with neutrality, as expounded by international law, or to employ the Act merely as a method of giving effect to neutral obligations, but to supply what was considered as a casus omissus in that law-to create a new class of duties hitherto unknown, with new and exceptional penalties attached to their violation. Were it not for such an Act, the "Alabama" would form no ground of complaint against this country; for neither in her construction, nor in the service on which she was employed, was there anything which offended against international law. There may have been a breach of municipal law and a particular statute; but otherwise, no act was committed of which a belligerent at peace with this country had a right to complain.

The policy of merging private rights into public obligations is one which it is not difficult to see it is the object of the maritime States to extend, as the chief if not the only means of guarding against those grave diplomatic embarrassments which recently, for example, during the American and PrussoFrank wars, tended seriously to compromise our position as a neutral State. Everything leads to the opinion that, as respects at least more than one important branch of industry, there will be gradually a more complete identification of the citizen with his Government, owing to the powerlessness of the undefined system of law known as "international," to secure the observance of State duties, or to reconcile these when in conflict with private rights. And this consideration will serve to show the importance of the alteration in the law of nations which it is the design of the Treaty of Washington to introduce. The very object and purpose of that treaty is to give legality to all claim for compensation which can be established under the three following rules of conduct-rules which never before could have been held binding on neutrals,

and which now, for the first time acknowledged as binding on the parties to the treaty, confer a legal status on certain claims which before were wholly untenable. The rules are these:

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 carry on war against a Power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction to warlike use.

Secondly: Not to suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of renewal or augmentation of military supplies or arms, or the remitment of men.

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.

And it is to be remarked that in the treaty the legal responsibility entailed by these rules is acknowledged and accepted now for the first time; for it is declared in so many words 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 Art. 1 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 provisions for the future, agrees that in deciding the position between the two countries arising out of the claims, the arbitrators should assume that Her Majesty's Government had undertaken to act upon the principles set forth in those rules."

Whatever difficulty may be found to exist in the interpretation of these rules, or the carrying of them into practice, there can be but one opinion as to their importance upon the position of neutral Powers. The chief effect will, in all probability, be that of rendering the observance of an attitude of complete neutrality more difficult in the face of the enterprise of private traders, whose constant endeavours to realize the advantages of the stimulus which in many important branches war gives to commerce, will have a continual tendency to compromise their Government. But into such considerations it would not be possible, in a mere sketch like the present, to enter; it has been rather our present object to bring clearly out, as a matter of legal history, the difference between the past and the future of international law in one of

its most important aspects, than to observe upon any consequences likely to follow from the incorporation of the rules of the Treaty of Washington into the public law of nations. But there can be no doubt but that, to use the words of a distinguished American writer, the progress of modern times has been to insist on an entire and perfect neutrality, and to require, it may be added, a neutral State to mould its internal legislation, and abridge, if necessary, the privileges, and check the industrial energies of its population, in order the better to secure that end. It will become gradually more difficult to conceive of a State being permitted to continue that condition of limited and partial neutrality which has under the necessities of private commerce hitherto existed; and whatever may have been the language of the older writers on the law of nations when treating of this subject, the course of modern opinion points to the conclusion that a belligerent would be considered as justified in treating any State as hostile throughout which rendered any aid, directly or indirectly, to its enemy, just as a Power would be regarded as hostile which, whether in pursuance of treaty obligations or not, gave or withheld belligerent privileges unequally.*

II. COMPANIES IN COMMANDITE, AND THE DESIRABILITY OF THEIR INTRODUCTION IN ENGLAND. By HENRY D. JENCKEN, Barristerat-Law.

IT

Tis a strange anomaly of our law, that in the face of the vast interests involved in Joint-stock enterprise, no effort has been made to organize the maxims of our jurisprudence, and the sound practical rules of our commercial men into a complete system. The day I conceive is, however, not far distant when the Legislature will have to intervene; even a superficial view of the law as now administered would convince a mere tyro that something is wrong. The ever varying decisions of our Equity and Common Law Courts prove, that the principles upon which the judgments are given are not settled. As illustrative of the strange contradictions our law-makers have been guilty of, I may cite the Partnership Amendment Act, 1865. After centuries of battling with a faulty maxim of law, namely, "that he who shares profits

*See note by Mr. Dana, Wheaton's Inter. Law, p. 425,

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