§ 14. Prohibi

tion en

forced by municipal statutes.

peace with them. But without appealing to treaties, they had established a state of peace with them. But without appealing to treaties, they were at peace with them all by the law of nature; for, by the natural law, man is at peace with man, till some aggression is committed, which, by the same law, authorizes one to destroy another, as his enemy. For the citizens of the United States, then, to commit murders and depredations on the members of other nations, or to combine to do it, appeared to the American government as much against the laws of the land as to murder or rob, or combine to murder or rob, their own citizens; and as much to require punishment, if done within their limits, where they had a territorial jurisdiction, or on the high seas, where they had a personal jurisdiction, that is to say, one which reached their own citizens only; this being an appropriate part of each nation, on an element where each has a common jurisdiction."17

The same principles were afterwards consigned to the forms of a law of congress passed in 1794, and revised and re-enacted in 1818, by which it is declared to be a misdemeanor for any person, within the jurisdiction of the United States, to augment the force of any armed vessel belonging to one foreign power at war with another power, with whom they are at peace; or to prepare any military expedition against the territories of any foreign nation with whom they are at peace; or to hire or enlist troops or 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 them; and the vessel, in this latter case, is made subject to forfeiture. The president is also authorized to employ force to compel any foreign vessel to depart, which, by the law of nations or treaties, ought not to remain within the United States, and to employ generally

17. Mr. Jefferson's Letter to M. Genet, June 17, 1793. American State Papers, vol. i. p. 155.

the public force in enforcing the duties of neutrality prescribed by the law.18

Enlistment

The example of America was soon followed by Great Bri- Foreign tain, in the act of parliament 59 Geo. III. ch. 69, entitled, Act. "An Act to prevent the Enlisting or Engagement of His Majesty's Subjects to serve in Foreign Service, and the Fitting Out or Equipping in His Majesty's Dominions Vessels for Warlike Purposes, without His Majesty's License." The previous statutes, 9 and 29 Geo. II., enacted for the purpose of preventing the formation of Jacobite armies in France and Spain, annexed capital punishment as for a felony to the offence of entering the service of a foreign state. The 59 Geo. III. ch. 69, commonly called the Foreign Enlistment Act, provided a less severe punishment, and also supplied a defect in the former law, by introducing after the words "king, prince, state, or potentate," the words "colony or district assuming the powers of a government," in order to reach the case of those who entered the service of unacknowledged as well as of acknowledged states. The act also provided for preventing and punishing the offence of fitting out armed vessels, or supplying them with warlike stores, upon which the former law had been entirely silent.

In the debates which took place in parliament upon the enactment of the last-mentioned act in 1819, and on the motion for its repeal in 1823, it was not denied by Sir J. Mackintosh and other members who opposed the bill, that the sovereign power of every state might interfere to prevent its subjects from engaging in the wars of other states, by which its own peace might be endangered, or its political and commercial interests affected. It was, however, insisted that the principles of neutrality only required the British legisla ture to maintain the laws in being, but could not command it to change any law, and least of all to alter the existing laws for the evident advantage of one of the belligerent parties. Those who assisted insurgent states, however merito

18 Kent's Comment. on American Law, vol. i. p. 123. 2d Ed.

rious the cause in which they were engaged, were in a much worse situation than those who assisted recognised governments, as they could not lawfully be reclaimed as prisoners of war, and might, as engaged in what was called rebellion, be treated as rebels. The proposed new law would go to alter the relative risks, and operate as a law of favour to one of the belligerent parties. To this argument it was replied by Mr. Canning, that when peace was concluded between Great Britain and Spain in 1814, an article was introduced into the treaty by which the former power stipulated not to furnish any succours to what were then denominated the revolted colonies of Spain. In process of time, as those colonies became more powerful, a question arose of a very difficult nature, to be decided on a due consideration of their de jure relation to Spain on the one hand, and their de facto independence on the other. The law of nations afforded no precise rule as to the course which, under circumstances so peculiar as the transition of colonies from their allegiance to the parent state, ought to be pursued by foreign powers. It was difficult to know how far the statute law or the common law was applicable to colonies so situated. It became necessary, therefore, in the act of 1819, to treat the colonies as actually independent of Spain; and to prohibit mutually and with respect to both, the aid which had been hitherto prohibited with respect to one only. It was in order to give full and impartial effect to the provisions of the treaty with Spain, which prohibited the exportation of arms and ammunition to the colonies, but did not prohibit their exportation to Spain, that the act of parliament declared that the prohibition should be mutual. When, however, from the tide of events flowing from the proceedings of the congress of Verona, war became probable between France and Spain, it became necessary to review these relations. It was obvious that if war actually broke out, the British government must either extend to France the prohibition which already existed with respect to Spain, or re

move from Spain the prohibition to which she was then subject, provided they meant to place the two countries on an equal footing. So far as the exportation of arms and ammunition was concerned, it was in the power of the crown to remove any inequality between the belligerent parties, simply by an order in council. Such an order was consequently issued, and the prohibition of exporting arms and ammunition to Spain was removed. By this measure, the British government offered a guarantee of their bond fide neutrality. The mere appearance of neutrality might have been preserved by the extension of the prohibition to France, instead of the removal of the prohibition from Spain; but it would have been a prohibition of words only, and not at all in fact, for the immediate vicinity of the Belgic ports to France would have rendered the prohibition of direct exportation to France totally nugatory. The repeal of the act of 1819 would have, not the same, but a correspondent effect to that which would have been produced by an order in council prohibiting the exportation of arms and ammunition to France. It would be a repeal in words only as respects France, but in fact respecting Spain; and would occasion an inequality of operation in favour of Spain, inconsistent with an impartial neutrality. The example of the American government was referred to, as vindicating the justice and policy of preventing the subjects of a neutral country from enlisting in the service of any belligerent power, and of prohibiting the equipment in its ports of armaments in aid of such power. Such was the conduct of that government under the presidency of Washington, and the secretaryship of Jefferson; and such was more recently the conduct of the American legislature in revising their neutrality statutes in 1818, when the congress extended the provisions of the act of 1794 to the case of such unacknowledged states as the South American colonies of Spain, which had not been provided for in the original law.19

19 Annual Register, vol. lxi. p. 71. Canning's Speeches, vol. iv. p: 150; vol. v. p. 34.

§ 15. Immunity

of the neutral territory, how far it

The unlawfulness of belligerent captures made within the territorial jurisdiction of a neutral state is incontestably established on principle, usage, and authority. Does this immunity of the neutral territory from the exercise of acts of extends to hostility within its limits extend to the vessels of the nation on the high seas, and without the jurisdiction of any other state?

neutral

vessels on the high

seas.

public and

private

vessels.

20

We have already seen that both the public and private vessels of every independent nation on the high seas, and without the territorial limits of any other state, are subject to the municipal jurisdiction of the state to which they belong.2 This jurisdiction is exclusive only so far as respects offences against the municipal laws of the state to which the vessel belongs. It excludes the exercise of the jurisdiction of every other state under its municipal laws, but it does not exclude the exercise of the jurisdiction of other nations as to crimes under international law, such as piracy and other offences, which all nations have an equal right to judge and to punish. Does it, then, exclude the exercise of the belligerent right of capturing enemy's property?

This right of capture is confessedly such a right as may be exercised within the territory of the belligerent state, within the enemy's territory, or in a place belonging to no one: in short, in any place except the territory of a neutral state. Is the vessel of a neutral nation on the high seas such á place?

Distinction A distinction has been here taken between the public and between the private vessels of a nation. In respect to its public vessels, it is universally admitted that neither the right of visitation and search, of capture, nor any other belligerent right, can be exercised on board such a vessel on the high seas. A public vessel, belonging to an independent sovereign, is exempt from every species of visitation and search, even within the territorial jurisdiction of another state: à fortiori, must it be exempt from the exercise of belligerent rights on the ocean, which belongs exclusively to no one nation ?21

20 Vide ante, pt. ii. ch. 2, § 11.

21 Ibid.