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does not relate to the war, the neutral must not refuse to one of the parties, merely because he is at war with the other, what she grants to that other. (a)

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§ 436. These principles were appealed to by the Ameri- Arming can government, when its neutrality was attempted to be violated on the commencement of the European war, in 1793, by arming and equipping vessels, and enlisting men within the ports of the United States, by the respective belligerent powers, to cruise against each other. reIt was stated that if the neutral power might not, con- unlawful. sistently with its neutrality, furnish men to either party for their aid in war, as little could either enrol them in the neutral territory. The authority both of Wolfius and Vattel was appealed to in order to show, that the levying of troops is an exclusive prerogative of sovereignty, which no foreign power can lawfully exercise within the territory of another State, without its express permission. The testimony of these and other writers on the law and usage of nations was sufficient to show, that the United States, in prohibiting all the belligerent powers from equipping, arming, and manning vessels of war in their ports, had exercised a right and a duty with justice and moderation. By their treaties with several of the belligerent powers, treaties forming part of the law of the land, 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. (a)214

(a) Droit des Gens, liv. iii. ch. 7, § 104.

(a) Mr. Jefferson's Letter to M. Genet, June 17, 1793: Am. State Papers, i. 155. [214 See note 215, infrà, on Neutrality or Foreign Enlistment Acts.] — D.

The United

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§ 437. The same principles were afterwards incorporated in a law of Congress, passed in 1794, and revised trality acts. 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 the public force in enforcing the duties of neutrality prescribed by the law. (a) The Brit- § 438. The example of America was soon followed by ish Foreign Great Britain, in the act of Parliament 59 Geo. III. ch. Act. 69, entitled, "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.

Enlistment

Debates

in Parlia

§ 439. In the debates which took place in Parliament ment on the upon the enactment of the last-mentioned act in 1819, act of 1819. and on the motion for its repeal in 1823, it was not denied by Sir J. Mackintosh and other members who opposed the

(a) Kent's Comm. i. 123.

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 legislature 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 meritorious the cause in which they were engaged, were in a much worse situation than those who assisted recognized 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 favor 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 succors 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 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 remove 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 guaranty of their bona 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 favor 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. (a)215

(a) Annual Register, Ixi. 71. Canning's Speeches, iv. 150; v. 34.

[215 Neutrality or Foreign Enlistment Acts.—The laws for the better preservation of neutrality have come into so much notice since the author's death, that it is necessary to give them a much fuller consideration than they received in the text. It is proposed to consider, first, the political history of the subject before the passage of the statutes in question; second, the judicial construction they have received; and, third, the political history of the subject since their enactment.

I. POLITICAL HISTORY OF THE SUBJECT IN THE UNITED STATES BEFORE THE STATUTES.

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§ 440. The unlawfulness of belligerent captures, made Immunity within the territorial jurisdiction of a neutral State, is tral terriincontestably established on principle, usage, and au- far it exthority. Does this immunity of the neutral territory from the exercise of acts of hostility within its limits, the high extend to the vessels of the nation on the high seas, and seas. without the jurisdiction of any other State?

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Statutes for the better preservation of neutrality, which have come to be known in England as "Foreign Enlistment Acts," had their origin in the United States. They arose out of the endeavor of Washington's administration to maintain, under great difficulties, neutrality in the wars of the French Revolution. In order to secure the aid of France in their struggle for independence, the United States had made terms in their Treaty of Commerce, of 1778, which caused them great trouble afterwards. By the 17th article of that treaty, French public ships or privateers could take their prizes into American ports, without restriction of cause or time, and the legality of the captures could not be there inquired into; while the United States were bound to close their ports against prizes made from the French by nations at war with France, except as ports of refuge in stress of weather, and, in such case, to require their departure at the earliest practicable moment. By the 22d article, privateers of a nation at war with France were to be prohibited, in ports of the United States, from fitting themselves, and from selling their prizes, or procuring stores beyond what should be necessary to take them to the nearest port of their own country.

In 1793, the French frigate Ambuscade captured an English merchant vessel, the George, in Delaware Bay, and brought her to Philadelphia. The United States restored her, as her capture was a clear violation of sovereign territorial right. M. Genet, ambassador from the French Republic, had undertaken to fit out privateers in the ports of the United States to cruise against British commerce, and to enlist American citizens to serve on board them. The British claim for the restoration of their prizes, on the sole ground that the privateers which captured them were fitted out in our ports, presented great difficulties, under our treaty. President Washington issued, on the 22d April, 1793, his celebrated Proclamation of Neutrality. After reciting the existence of war between France on the one part, and Great Britain and other powers on the other, and declaring that it was the duty and interest of the United States to pursue in good faith a course of conduct "friendly and impartial towards the belligerent powers," and exhorting all citizens to avoid acts tending to contravene that policy, it declared, that no citizen would be protected against punishment or any forfeiture which he might incur, under the law of nations, by "committing, aiding, or abetting hostilities against any of the said powers, or by carrying to any of them those articles which are deemed contraband by the modern usage of nations." The chief feature, however, of the proclamation was the announcement that the President had instructed the proper officers to institute prosecutions "against all persons who shall, within the cognizance of the courts of the United States, violate the law of nations with respect to the powers at war, or any of them." At this time the United States had no statutes on the subject of neutrality.

As the object of M. Genet was not only to use the United States as a base of maritime warfare, but to involve the country in war with England, this proclamation was an object of attack by him and the French party in America. Gratitude to France for her assistance in obtaining our independence, sympathy with democratic institutions for which France was at war, and the remains of hostile feeling against

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