(complete or partial) of national protection, or both. The principal cases, in the diplomatic history of nations, in which such protection has been forfeited may be grouped under the headings: Privateering; Unlawful expeditions; Unneutral military or other service; and Unneutral aid and comfort.

(a) Privateering

In spite of the fact that most states by treaty or statute have abolished privateering, it is still permissible under the general rules of international law.1 The Declaration of Paris of 1856, to which Germany, France, Austria, Russia, Prussia, Sardinia, and Turkey were signatories abolished privateering, so far as these countries were concerned.

Opinions differ as to the piratical character of a vessel of a neutral state, armed as a privateer with a commission from one of the belligerents. While the act of privateering is but one step removed from piracy and punishable by the municipal law of most countries when engaged in by nationals, it is admitted by most writers not to be piracy in international law,2 although many authors believe that it should be made so.

1 Austria, Decree of May 25, 1854 prohibits Austrian subjects from using letters of marque, or from any participation in the armament of a vessel, no matter under what flag, and if they infringe this order, they will not only be deprived of the protection of the Austrian government, but punishable by Austria or a foreign state. Spain, the Scandinavian countries, and other governments have frequently issued orders to their own subjects prohibiting them from engaging in privateering against a foreign friendly nation. See Halleck, International Law, London, 1908, II, 135. The Secretary of State of the United States in reply to the notes of the English and French ministers communicating the resolutions of the two allied powers not to authorize privateering said:

"The laws of this country impose severe restrictions not only upon its own citizens, but upon all persons who may be residents within any of the territories of the United States, against equipping privateers, receiving commissions, or enlisting men therein, for the purpose of taking part in any foreign war." H. Ex. Doc. 103, 33rd Cong., 1st sess., cited in Halleck, II, 135.

2 Ortolan, Diplomatie de la mer, Book 2, Ch. XI; Hautefeuille, Des Nations neutres, title III, ch. 2; Abreu, Tradato de los presas, pt. 2, ch. 1, §§ 7, 8; Kent, Commentaries, I, 100; Phillimore, International Law, I, § 358; Klüber, Droit des gens, § 260. If not actually piracy the above writers agree that privateering is an infraction of international law.

§ 359. Decisions of International Tribunals.

The effect upon a citizen's protection arising out of an act of privateering against a nation with which his government is at peace was considered at length by several international commissions. In the case of the representatives of Captain Clark, a United States citizen. who accepted a privateering commission from the Uruguayan government to cruise against the commerce of Spain and Portugal, with which countries Uruguay was at war and the United States at peace, the facts showed that Captain Clark had captured a Spanish and a Portuguese vessel. Both prizes were seized and taken from him by a public armed ship of Colombia. When Colombia separated into New Grenada, Venezuela and Ecuador, each of these states assumed a certain portion of the debts of Colombia. The claim was presented to the United States-New Grenada Mixed Commission of Sept. 10, 1857 and an award made in favor of the claimant, which decision, however, the three commissions which subsequently considered the claim declined to follow. These commissions were the United StatesEcuador Commission of Nov. 25, 1862,2 the United States-Colombian Commission of February 10, 1864,3 and the United States-Venezuelan Commission of Dec. 5, 1885.4 The decision in each of these arbitrations agreed that Captain Clark, while serving under the flag of Uruguay, must be regarded as a Uruguayan citizen and that for the purposes of his claim his nationality was determined by his commission and by the flag under which he fought. On the question of his breach of neutrality, the following extracts may be quoted:

"It would be against all public morality and against the policy of all legislation if the United States should uphold or endeavor to enforce a claim founded on a violation of their own laws and treaties

1 Moore's Arb. 1361, 2730.

2 Ibid., 2731.

3 Ibid., 2740.

4 Ibid., 2743.

and on

Under the Act of June 14, 1797, citizens, subjects or inhabitants of the United States are strictly prohibited from taking any commission or letters of marque for arming any ship or vessel against Spain on behalf of her revolting colonies. See the Bello Corrunes, 6 Wheat. 152. The 14th article of the treaty with Spain of 1795 which prohibits citizens or subjects from taking commissions to cruise against the other includes private armed vessels. See the Santissima Trinidad, 7 Wheat. 283.

the perpetration of outrages committed by an American citizen against the subjects... of friendly nations. . . . He who engages in an expedition prohibited by the laws of his country must take the consequences." 1

"Considering, however, the light in which privateering expeditions organized in neutral countries are looked upon, the recognition of the right of these parties to claim as American citizens would lead to what would seem a singular and startling result. . . . A foreigner taking part in a contest which did not concern him would be able to invoke first, the assistance of the government which he served and from which he derived his authority, and secondly, if it failed or was unable to obtain satisfaction for him, he might claim the protection and support of his own government in making good his demands, although he had been engaged in defiance of its declarations founded in the clearest obligations of international law in carrying on war against nations with whom that government was at peace."

"It is just because Clark was a citizen of the United States and in that character committed acts of hostilities against the citizens of another country with which his own government was at peace, that prevents us from considering his claim. It would be very absurd, indeed, to hold that a citizen forfeited his citizenship by a violation of the neutrality of his country, but it is quite true and proper to maintain that no man shall invoke or receive the aid of any court, municipal or international, in recovering the fruits of his own wrongdoing."

(b) Unlawful Expeditions

§ 360. Neutrality Acts of the United States.

The delicate position in which the United States was placed during the wars between Great Britain and France at the end of the eighteenth century and the use which the French sought to make of American territory (relying on the commercial treaty of 1778 with the United States) for organizing expeditions against British commerce and bringing in for adjudication British prizes captured by these vessels, made it incumbent upon our government at an early day to establish the principles of neutrality which have since governed the policy of the United States, a policy which has been followed by Great Britain 1 Opinion of Hassaurek, United States-Ecuador Commission of 1862, Moore's Arb. 2738.

2 Opinion of Sir Frederick Bruce (Gt. Brit.), umpire in United States-Colombian Commission of 1864, Moore's Arb. 2740-2741.

3 Opinion of Findlay (U. S.), Comissioner in United States-Venezuelan Commission of 1885, Moore's Arb. 2748-2749. See Moore's Dig. III, 788.

and which has, indeed, been a most important contributing factor in developing the international law of neutrality.1 On April 22, 1793, •Washington issued his celebrated proclamation of neutrality in which he 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 [belligerent] powers, or by carrying to any of them those articles which are deemed contraband by the modern usage of nations";

and the important announcement was made that the President had instructed the proper officers to institute prosecutions against persons violating the proclamation. It having been impossible, under the existing law, to convict a certain Henfield for having shipped on a French privateer, the Neutrality Act of June 5, 1795 was passed. Its provisions were continued and elaborated in various acts up to that of April 12, 1818, which act has since been incorporated into the Revised Statutes, §§ 5281 to 5291.

By the terms of these sections of the Revised Statutes a citizen within the United States is prevented from accepting or exercising a commission to serve in war against a friendly nation, or to enlist on an armed vessel of a foreign state (§ 5281); he is forbidden to fit out or arm a vessel with intent to employ it in the service of a foreign state or people (§ 5282); to cruise or commit hostilities against the subjects of a friendly state or people (§ 5283); or to augment the forces of any foreign ship of war (§ 5285); or to begin or set on foot within the United States, a military expedition against a friendly people (§ 5286); and armed vessels leaving the United States are required to give bond that they will not be employed to commit hostilities against the subjects of a friendly state or people (§ 5289). These acts are intended to prevent a citizen from compromising the neutrality of the United States in any way. They do not, however, prevent an individual from leaving the country with intent to enlist

1 Our early political history in matters of neutrality, with the early statutes and the cases thereunder, is presented by Dana in an elaborate note to Wheaton's Elements of international law, Boston, 1866, note 215, pp. 53 et seq. See also Fenwick, C. G., The neutrality laws of the United States, Washington, 1913, ch. II; Moore's Dig. VII, § 1292 et seq.

in foreign military service.1 The British Foreign Enlistment Acts of 1819 and 1870 are equally intended to prevent a violation by British subjects of British neutrality. They have followed closely the terms of the American acts, except that the Act of 1870 apparently prohibits a British subject from taking service under a foreign state or people against a friendly state either within or without the British territory.2

§ 361. Effect of Participation in Unlawful Expeditions upon Protection. In the diplomatic history of the United States numerous occasions have presented themselves in which it was necessary for the United States to define its position on the effect which the organization in or departure from the United States of unlawful expeditions against friendly peoples or states would have on the protection ordinarily extended to citizens of the United States. The revolutions in Cuba have frequently furnished opportunities for adventurous spirits to organize expeditions in aid of the Cubans, and the internal troubles in Mexico and other Central and South American states have likewise given occasion for the organization of expeditions for the assistance of one or the other of the contending parties.

President Taylor, on being informed that such armed expeditions were being fitted out in the United States, issued in 1849 a proclamation in which he warned

"all citizens of the United States who shall connect themselves with an enterprise so grossly in violation of our laws and our treaty obligations, that they will thereby subject themselves to the heavy penalties denounced against them by our acts of congress and will forfeit their claim to the protection of their country. . . . No such persons . . . must expect the interference of this government in any form on their behalf, no matter to what extremities they may be reduced in consequence of their conduct."

1

1 U. S. v. Hertz (1855), 26 Fed. Cas. No. 15,357; U. S. v. Nunez (1896), 82 Fed. Rep. 599; U. S. v. O'Brien (1896), 75 Fed. Rep. 900.

2 Oppenheim, II, 375, 376.

The Proclamation of President Taylor, Aug. 11, 1849, 9 Stat. L. 1003, Richardson's Messages, V, p. 7, cited in Moore's Dig. III, 787-788; see also Proclamation of President Fillmore, April 25, 1851, Richardson's Messages, V, p. 111, Moore's Dig. III, 788. The principle announced has since been greatly modified; see Proclamation of President Cleveland, 1895, Richardson's Messages, IX, p. 591. On the