1415. If she was captured within the waters of the nation she must be liberated, whether she be the ship of a neutral or a belligerent, for they are alike friends of the neutral. The Duke of Tuscany condemned a Dutch ship for capturing her English adversary within the waters of his realm. (Santissima Trinidad.) His proper course was to release the captured vessel, and demand satisfaction from the state to which the captor belonged.

1416. She must be released if she was captured in violation of any right of that neutral nation, as by a ship illegally fitted out from its ports, or if she was captured by a belligerent ship whose armament was augmented in that neutral country, provided that she was captured in the first voyage after the outfit, or in the cruise in which the armament was augmented; but after that voyage or cruise is completed, the offence is, for this purpose, purged. Santissima Trinidad.

1417. Her prize may be taken from her, but the public vessel of a belligerent Power, although originally fitted out or subsequently armed in contravention of the neutral law, cannot be condemned or prosecuted in the neutral country in respect of her captures. (Cassius. Invincible.) The neutral is entitled to employ military force to wrest his prey from the captor, and to pursue and wrest the prize from him on the ocean. But the pursuit must cease on the captor's entering the waters of his own or any other nation. The prize must be demanded by the neutral state, not her owners, from the nation of the captor, which is bound to make restitution, except of the ship of the neutral which had been captured on the ground of conveying contraband, or violation of the law of blockade. The lawfulness of such a capture must be determined by the captor's court.

1418. The court of the neutral country will restore the illegal prize, not only on the application of her government, but at the instance of her owner. Santissima Trinidad.

1419. PRIVATEERS.-Pirates, according to the silent but immutable law of nations, but by reason of the innate love

of plunder, and the incessant practice of maritime peoples, licensed pirates; at length, by the deliberate and dispassionate voices of England, France, Russia, Austria, Prussia, Sardinia, and Turkey, in 1856 proclaimed,—and by the voices of almost all other nations since again and again proclaimed,―pirates who cannot be licensed. If these seamarauders bring any victim into the port of any country which has recorded her assent to the law of reason and of nations, they must be deprived of their booty; and, notwithstanding the withholding by the United States of her acquiescence in that law-for her reticence can give her no right to plunder the nations of Europe-notwithstanding the atrocious enormity designated an Act of Congress (3 Mar. 1863), unless the nations will quail and cringe and crouch still lower before an insolent and frantic Power, which daily violates every law of humanity and transgresses every right of semi-civilized warfare, they must be executed as pirates.

The commission of a privateer was never recognized as constituting her a public ship (Santissima Trinidad); her captain was not an officer of the sovereign, he merely carried a licence, called a commission, to pillage, which other nations, granting such licences, therefore respected. But it is void by the law of nations at length proclaimed. Privateers " are abolished;" they have no right to search, far less to capture. The merchant ships, though loaded with contraband, are entitled to resist and destroy them. The armed ships of all countries should chase them from the seas, and bring their banditti to justice.

1420. ARMAMENTS.-We must keep carefully in view the distinction between the obligations which the law of nations imposes on the neutral state, and the obligations. which, for the preservation of its own peace and honour, that state may impose on its citizens.

1421. The former are limited to the prevention of the departure of ships or levies of war from the neutral ports

or territorial frontier, and the repression of preparations among its subjects which assume a menacing attitude; the latter may extend to all such precautions as its legislature may deem expedient to enable it to maintain the law of neutrality, and to crush attempts which might involve it in the infraction of its duty towards the belligerent, before the armament is complete, or the recruits are embanded and drilled.

1422. The belligerent must not trespass upon the terrene or the maritime dominions of the neutral to repress armaments, however formidable, in progress of preparation there. He must not invade the neutral state. It is for this reason that the neutral is bound not to permit any armament, organized under the protection which its sovereignty affords, to issue forth. The neutral is further bound, in courtesy, and to avoid suspicion of its own designs, to repress menacing preparations under the shelter of its shield.

1423. The belligerent is entitled to regard an armament fitted out or in preparation against him, under the protection and with the connivance or full knowledge of the state, as being fitted out or in preparation, by or under the authority of the state, and as a breach of neutrality. The duties are reciprocal; the belligerent is bound to abstain from raising soldiers or military mariners, or equipping vessels of war within the neutral state. If a belligerent violate that duty, he cannot complain of any degree of supineness which the neutral may manifest as to any such military preparations or equipments on the part of his foe. He who has violated the law as against his adversary cannot appeal to it for his own protection. Nor is it necessary that his offence should be of precisely the same character with that of which he complains. If he enlist soldiers, he cannot complain that his adversary is not interdicted from the equipment of ships. But the belligerent who has purchased whole parks of artillery, and ammunition by hundreds of tons, may demand the interposition of the neutral

to restrain the sailing of a war-ship in aid of his antagonist; for the purchase of contraband is legal, the marine outfit is a violation of public law.

1424. The 15th Congress, stat. 1, c. 88 (1818), declares guilty of a high misdemeanor any persons who should, within the territory or jurisdiction of the United States, begin or set on foot or provide or prepare the means for any military expedition or enterprise to be carried on from thence against the territory or dominions of any foreign prince or state, or of any colony, district or people with whom the United States are at peace.

1425. It also declared guilty of a high misdemeanor any citizen of the United States, who, within their territories or jurisdiction, should accept and exercise a commission to serve a foreign prince, state, colony, district, or people in war, by land or by sea, against any prince, state, colony, district or people with whom the United States were at peace; and any person who, within their territories or jurisdiction, should enlist or enter himself, or hire or retain another person to enlist, or to enter or to go beyond the limits of their territories, with the intent of enlisting in such service as a soldier, or as a marine or sailor on board any vessel of war, letter of marque, or privateer; except foreign subjects transiently within the United States, who should, on board a vessel of war, letter of marque, or privateer, fitted out as such at the time of its arrival, enlist other subjects of the same foreign state transiently within the United States, and also the persons so enlisted.

1426. It also declared guilty of a high misdemeanor any person who, within the limits of the United States, should fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed, or knowingly be concerned in the furnishing, fitting out, or arming of any vessel, with intent that she should be employed in the service of any foreign prince or state, or of any colony, district, or people, to cruise or commit hostilities against the subjects, citizens,

or property of any foreign prince, etc., with whom the United States are at peace, or should issue or deliver a commission for any vessel, to the intent that she should be so employed. And it declared forfeited the vessel, with all her materials, arms, ammunition, and stores.

1427. It was held that the sailing from a port of the United States with a vessel fitted out, but not armed or manned, so as to be able to act as a privateer, with the intention of arming and manning her for that purpose at a port beyond the territories of the United States, was a misdemeanor within the provision last cited. The offender was indicted as knowingly concerned in the fitting out or arming of the vessel. United States v. Quincy.

1428. It was held that this Act did not affect the right of the subjects to equip vessels of war, and to send them furnished with arms, as commercial speculations, into a foreign port for sale. Their right to do so was checked only by the liability of their vessels to be captured as contraband. Santissima Trinidad.

1429. The previous American Act of 1794 had the words "any foreign prince or state" only, not the words "or of any colony, district, or people." And in Gelston v. Hoyt it was held that, until it had been recognized as an independent state by the government to which it had belonged, or by the government of the United States, however independent it might in fact have become, that which had been must be still regarded as a colony; and that until such recognition courts of justice were bound to consider the ancient state of things as remaining unaltered (citing Rose v. Himely; Manilla; City of Berne v. Bank of England; and Dolden v. Bank of England). And it was therefore held (1818) that a ship fitted out and armed, to be employed in the service of that part of St. Domingo which was under the government of Petion, to cruise and commit hostilities against that part of the island which was under the government of Christophe, was not within the prohibition.