§ 250. It is important, as has been already incidentally observed, not to confound freedom in the subject of a neutral Neutrality, etc., London, 1870; and in Bemis on American Neutrality, Boston, 1866. It was argued with great research in The Alexandra (AttorneyGeneral v. Sillem), London, 1863, and in The Meteor, Boston (Little, Brown & Co.), 1869. See Holmes's Kent, i. 124, and 3 Am. Law Rev., 234. In the Alexandra case (see pamph. rep.) the applicability of the foreign enlistment act to such cases was fully discussed. See notice in Bernard on British Neutrality, etc. The arguments on the motion to discharge the rule are given in Atty.-Gen. v. Sillem, 2 Hurl. & C. 431. "The direct logical conclusions," says Mr. Hall (International Law, Oxford, 1880, § 225), "to be obtained from the ground principles of neutrality, go no further than to prohibit the issue from neutral waters of a vessel provided with a belligerent commission or belonging to a belligerent, and able to inflict damage on his enemy. On the other hand, it is fully recognized that a vessel completely armed, and in every respect fitted the moment it receives its crew to act as a man-ofwar, is a proper subject of commerce. There is nothing to prevent its neutral possessor from selling it, and undertaking to deliver it to the belligerent, either in the neutral port or in that of the purchaser, subject to the right of the other belligerent to seize it as contraband if he meets it on the high seas or within his enemy's waters." "The existing law, according to the summary of it given by Chancellor Kent (Com., i. 128), and adopted by Wheaton (Lawrence's Wheat., p. 729), declares it 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 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 the public force in enforcing the duties of neutrality prescribed by law. Revised Statutes, §§ 1033 et seq." Note by Mr. Lawrence in Whart. Crim. Law, 8th ed., § 1908. In the Santissima Trinidad, 7 Wheat. 283, Judge Story, giving the opinion of the court, maintained that the sale of armed ships of war to belligerents by neutrals was never held unlawful in the United States. "There is nothing in our laws," he said, "or in the law of nations, that forbids our citizens from sending armed vessels as well as munitions of war to foreign ports for sale." In the case of the Meteor, libelled in 1866, at New York, Betts, J., says: "As to the preparing of vessels within our jurisdiction for subsequent hostile operations, the test we have applied is not the extent and character of the preparations, but the intent with which the particular acts are done. The intent is all. 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? On the other hand, is it to fit out a vessel which shall leave our Freedom of sale not to founded with relief be con state to sell armed vessels to a belligerent, with non-liability by the vendor to have the ship confiscated as contraband if it can be seized by the other belligerent on the high seas. Such ships, in most cases, belong to the vendees when they put to sea; and even if this was not the case, they are open to be seized on the high seas by the other belligerent as contraband of war. In the latter case the risk is one the vendor undertakes to run.2 from liabil ity to con fiscation. stant base. 251. As is elsewhere stated, it is a moot question how far it is permissible, by the law of nations, for a neutral sovereign to supply the armed steamers of belliger- Coaling ents with coal. The Geneva award declares: "In from a conorder to impart to any supplies of coal a character inconsistent with the second rule, prohibiting the use of neutral ports or waters as a base of naval operations for a belliger ent, it is necessary that the said supplies should be connected with special circumstances of time, of persons, or of places, which may combine to give them such character." Mr. Adams, in his opinion, thus speaks: "The supply of coal to a belligerent involves no responsibility to the neutral when it is made in response to a demand presented in good faith, with a single object of satisfying a legitimate want openly assigned. On the other hand, the same supply does involve a responsi 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." Mr. Lawrence's note to Whart. Crim. Law, 8th ed., 1908. For the Alabama case see Encyclopedia Americana, 1883, tit. "Alabama." For trials during Washington's administration for breaches of neutrality laws, by enlisting in or aiding in fitting out foreign cruisers, see Henfield's Case, Whart. St. Trials, 49; Guinet's Case, ibid. 93; Villato's Case, ibid. 185; Williams's Case, ibid. 652. 1 See Crawford v. Wm. Penn, Pet. C. C. 106. Story, J., Santissima Trinidad, 7 Wheat. 840; The Bermuda, 3 Wall. 514; The Florida, 4 Ben. 452; and see Dana's Wheat., note, 215. That the sale of a vessel of war by a belligerent to a neutral in a neutral port cannot hold against the other belligerent, see The Georgia, 1 Low. Dec. 96; U. S. v. The Etta, 13 Am. Law Reg. 38; The Peterhoff, 5 Wall. 28. That a neutral may sell a ship to a belligerent in a neutral port, see The Lilla, 2 Sprague, 177; 2 Cliff. 169. Whart. Crim. Law, 8th ed., § 1907; supra, § 226. bility if it shall in any way be made to appear that the concession was made either tacitly or by agreement, with a view to promote the execution of a hostile act." Sir Alexander Cockburn, then chief justice of England, as well as one of the arbitrators, defines more specifically the term "base of operations:" "A base of operations signifies a local position which serves as a point of departure and return in military operations, and with which a constant communication can be kept up, and which may be fallen back upon whenever necessary. In naval warfare it would mean something analogous-a port or water from which a fleet or ship of war might watch an enemy, and sally forth to attack him, with the possibility of falling back upon the port or water in question for fresh supplies or shelter, or a renewal of operations." The true distinction is this: It is not a breach of neutrality for a neutral state to permit the coaling of belligerent steamers in its ports to the same extent as it permits the coaling of other foreign steamers resorting to its ports casually, and without accommodations already established for them. Nor is it any more a breach of neutrality for a neutral to sell coal in gross to a belligerent than it would be to sell wheat or cotton. But it is a breach of neutrality for a neutral to permit a permanent depot or magazine to be opened on its shores, on which a belligerent may depend for constant supplies. To require a neutral to shut up its ports so as to exclude from coaling all belligerents would expose a nation with ports so numerous as those of the United States to enormous expense, as well as put arbitrary and pernicious restraints on one of our most important industries. On the other hand, the breaking up of central depots or magazines for the constant supply of particular belligerents would be within the easy range of a national police; and to permit such depots to be established on neutral shores is on principle a breach of neutrality. This was adopted by Mr. Hardy in the house of commons, March 21, 1873; see President Hayes's Message, Jan. 14, 1879; Cushing's Treaty of Washington, p. 180. 2 As to importance of coaling depots in modern naval warfare, see article in London Spectator of July 26, 1883. And see supra, § 226. Aliens entitled to rights of citizens, Judicial separation gives wife inde § 261. Naturalization now internationally conceded, § 262. Persons of African descent entitled to equal rights, § 263. Otherwise as to Chinese, § 264. Liberty of action subordinate to na- IV. MARRIAGE. pendent domicil, but not mere voluntary separation, § 281. Place of marriage and of offence immaterial, § 282. Extra-territorial service may be adequate, and so of service by publication, § 283. Record must aver necessary facts, and may be disputed, § 284. VI. PARENTAL RELATIONS. Legitimation by subsequent marriage determined by laws of domicil of parent and child, § 288. As to real estate, territorial policy prevails, § 289. Marriage not a contract, but an insti- So as to legitimation generally, § 290. tution, § 271. So as to adoption, § 291. Parental custody and power determined | Place of acceptance is place of con by local law, § 292. VII. GUARDIANSHIP. Domicil of ward determines as to his personalty foreign guardian must act under local law, § 295. tract, § 317. Lex loci actus determines mode of solemnization, § 318. Law of place of performance determines mode of performance, § 319. Dates not conclusive as to place, § 320. So of foreign guardian of lunatic and When laws conflict, that most favorable spendthrift, § 296. VIII. LAW OF THINGS. Lex rei sitae determines whether a thing is property, § 298. 1st. Immovables. Immovables governed by the lex rei sitae, § 299. Chancellor may compel to convey foreign land, § 300. Forms of conveyance determined by lex rei sitae, § 301. 2d. Morables. Better opinion now is that movables marriage, and goods in transitu, § 306. Title must be made in conformity with lex rei sitae, § 307. Ships at sea governed by law of flag, § 308. Debts subject to law of creditor's domicil, § 309. Prescription, limitation, and escheat are governed by lex rei sitae, § 310. Bankrupt assignments have no extraterritorial effect, § 311. IX. CONTRACTS. 1st. General Rules. Contracts may be subject to as many jurisdictions as there are parties, § 314. Question as to seat of contract may be contested by several jurisprudences, § 315. Lex loci contractus determines interpretation, § 316. preferred, § 321. Lex fori, when peremptory, to be obeyed, § 322. 2d. Maritime Contracts, Contract as to ship determined by law of flag, § 323. 3d. Commercial Paper. Each party bound by his own law, § 324. Law of place of payment controls payment, § 325. Process determined by lex fori, § 326. 4th. Insurance. Law relating to payment is that of place of payment, § 327. Interpretation depends on usage, § 328. 5th. Partnership. Secret partners may set up limitations of domicil, but not open partners, § 329. 6th. Common Carriers. Law of place of performance determines mode of performance; law of place of payment determines payment, § 330. 7th. Illegal Contracts. Illegality determined by law of place of performance, unless juder fori is precluded from entertaining suit, § 331. Contracts conflicting with laws of na tions or with public policy will not be enforced, § 332. |