privilege of

that they were unlawfully detained on board the Sitka by the prize-master and crew, and praying for a writ of Habeas Corpus, directed to such master and crew. The Court thereupon granted the writ, which was duly served upon the prize-master, who thereupon immediately got the Sitka under weigh, and sailed out of the jurisdiction of the State of California. Upon the question being referred to the Federal Government, the Attorney General of the United States reported, that the conduct of the prizemaster constituted no just cause of complaint on the part of the United States under the Law of Nations, or under any Treaty between the United States and a Foreign Power".

Belligerent § 222. The following propositions contain the Asylum in views of the Government of the United States of Neutral America as to the privilege of Asylum within Neutral

Waters.

Waters. They were issued in 1855 and accord with the practice of the European Powers :

1. Belligerent ships of war, privateers, and the prizes of either are entitled on the score of humanity to temporary refuge in Neutral Waters from casualties of the sea or war.

2. By the Law of Nations Belligerent ships of war, with their prizes, enjoy Asylum in Neutral ports for the purpose of obtaining supplies or undergoing repairs, according to the discretion of the Neutral Sovereign, who may refuse the Asylum absolutely, or grant it under such conditions of duration, place, and other circumstances, as he shall see fit, provided that he be strictly impartial in this respect towards all the Belligerent Powers.

3. When the Neutral State has not signified its determination to refuse the privilege of Asylum to

44 Opinions of the Attorneys General of the United States, Tom. VII. p. 123.

Belligerent ships of war, privateers, or their prizes, either Belligerent has a right to assume its existence, and enter upon its enjoyment, subject to such regulations and limitations as the Neutral State may please to prescribe for its own security.

4. The United States have not by Treaty with any of the present Belligerents bound themselves to accord Asylum to either, but neither have the United States given notice that they will not do it, and of course our ports are open for lawful purposes to the ships of war of either Great Britain, France, Russia, Turkey, or Sardinia.

5. A foreign ship of war, or any prize of hers, in command of a public officer, possesses in the ports of the United States the right of extra-territoriality, and is not subject to the local jurisdiction.

6. A prisoner of war on board a foreign man-ofwar, or her prize, cannot be released by Habeas Corpus issuing from Courts either of the United States or of a particular State.

a

State to

ligerent with Powers to

7. But if such prisoner of war be taken on shore, he becomes subject to the local jurisdiction or not, according as it may be agreed between the political authorities of the Belligerent and the Neutral State. § 223. It is competent for every Independent State Right of to allow the agents of a Foreign Power to enlist & Neutral persons within its Territory for its military or naval allow Belservice, and such conduct will be consistent Neutrality so long as a State does not permit any troops Belligerent Power to do so, and refuse the like per- Territory. mission to its adversary. It was the common practice of the European Powers in the fourteenth century to carry on their wars with the aid of foreign mercenaries; and it was not until the fifteenth century, that Treaties of Alliance were introduced amongst the European Powers, in which there were

recruit

within its

stipulations that each of the contracting Parties
should restrain its Subjects from taking part against
the other contracting Party, in case it should be in-
volved in war with a third Power. Thus in the
Treaty ontcluded in 1467 between Edward IV of
England and Henry IV of Castile, it was agreed that
Leither Ally should allow his Subjects to engage in
any war against the other; and in the Treaty con-
cluded in 1270-1 between Henry VI of England
and Louis XI of France, it was agreed that neither
Monarch nor the Subjects of either should engage in
hostilities, either for their own quarrels or for the
quarrels of others. Similar stipulations occur in other
Treaties of alliance during the fifteenth century, and
in numerous Treaties of alliance concluded in the
sixteenth century, to which England, France, Spain,
and the Emperor, were respectively parties. It is
a necessary inference from the provisions of these
and other Treaties, that the Common Law of Europe
at that time did not impose upon a Power, which was
desirous to observe Neutrality, the duty of restraining
its Subjects from individually taking part in a war
between Foreign Nations, and that the foundation of
such a duty, when it arose, was alliance, and not
simple neutrality. Such also is the inference to be
drawn from the provisions of the Treaty of Munster,
concluded in the middle of the seventeenth century
(1648) between France, the Emperor, and the Elec-
tors, Princes, and States of the Holy Roman Empire,
whereby it was agreed "that none of the contracting
Parties should under any title or pretext supply the
enemies of the other Parties with arms, money, sol-
diers, or provisions, or receive the troops of any such
enemies into their territory, or allow them to encamp

45 Dumont, Corps. Diplom. Tom. III. Part I. p. 589.
46 Ibid. p. 601.

or permit them to pass through it," all of which acts are under the Common Law of Nations perfectly consistent with Neutrality. So far indeed was it from being regarded at any time by the Nations of Europe as inconsistent with the Neutrality of a State, that any of its natural born Subjects should serve under the standard of a Foreign Power in a war against another Foreign Power, that there are on record numerous Conventions concluded by France, Spain, the Holy See, and Naples respectively with the Helvetic Cantons, under which the latter have engaged themselves to furnish those Powers with a certain number of troops, or to allow those Powers to recruit a certain number of troops within their territory, and not to recall such troops whilst those Powers should be at war. The employment of Swiss mercenaries has only been discontinued by Naples and the Holy See within a very recent period. Great Britain on the other hand had Conventions in the last century with various German Powers, and more particularly with the Landgrave of Hesse Cassel 48, under which she had German mercenaries in her pay, whom she employed in her foreign wars by the side of her native troops.

the United

vernment

enlisting

§ 224. The views of the Government of the United Views of States as to the right of a Neutral Power to grant or States Gorefuse, as it sees fit, permission to a Belligerent as to a BelPower to enlist troops of land or sea within its Terri- ligerent tory are contained in a State Paper issued from the troops Attorney-General's office in the month of October Neutral 1855, on occasion of certain agents of the British Territory. Government enlisting soldiers within the Territory

of the United States.

47 The Treaty between France and Switzerland of 1521, which was the model for numerous subsequent Treaties between the same

Powers, will be found in Dumont,
Corps. Diplom. Tom. IV. Part I.
p. 333.

48 Martens, N. R. II. p. 422.

within

Right of a Neutral Power to prohibit

the enlist

1. It is a settled principle of the Law of Nations, that no Belligerent can rightfully make use of the territory of a Neutral State for Belligerent purposes without the consent of the Neutral Government.

2. The undertaking of a Belligerent to enlist troops of land or sea in a Neutral State without the previous consent of the latter is a hostile attack on its National Sovereignty.

3. A Neutral State may, if it pleases, permit or grant to Belligerents the liberty to raise troops of land or sea within its Territory, but for the Neutral State to allow or concede the liberty to one Belligerent and not to all would be an act of manifest Belligerent partiality, and a palpable breach of Neutrality.

4. The United States constantly refuse this liberty to all Belligerents alike, with impartial justice, and that prohibition is made known to the world by a permanent Act of Congress.

5. Great Britain, in attempting, by the agency of her military and civil authorities in the British North American provinces, and her diplomatic and consular functionaries in the United States, to raise troops here, committed an act of usurpation against the Sovereign Rights of the United States.

6. All persons engaged in such undertaking to raise troops in the United States for the military service of Great Britain, whether citizens or foreigners, individuals or officers, except they be protected by diplomatic privilege, are indictable by Statute.

49

$225. Bynkershoek 19 considers that the Common Law of Nations does not impose upon a Neutral State any obligation to prohibit the agents of a

49 Bynkershoek, Observationes Jur. Publ L. I. c. 22.