Part IV.

§ 434f. Prizes fitted out as ships of war.

The Tuscaloosa.

§ 435. Neutral impartiality, in what it consists.

one till twenty-four hours after the departure of the other, is very general in practice. It is a very reasonable rule, and with the almost universal use of steam on ships of war, the limit of twenty-four hours gives ample time for the vessel that starts first to get out of reach of the other if desirous of doing so.

Prizes are frequently armed and fitted out as vessels of war. After condemnation there is no doubt that the captors may so dispose of the prize; but if this is done before condemnation, although it infringes the owner's rights, it does not seem a settled point what view of the matter neutrals should take, as to admitting the ship into their ports. The neutral may inquire into the antecedents of the ship, and if she proves to be an uncondemned prize may detain her, if orders have been given that prizes are not to enter the neutral ports (s), but it is uncertain whether the omission of this inquiry is a violation of neutrality, and will give any ground of complaint to the other belligerent. In 1863, the United States merchant-ship Conrad was captured by The Alabama. Her name was changed to The Tuscaloosa, and an officer and ten men, with two rifle twelve-pounder guns, were put on board, but her cargo of wool was not unshipped. She was then taken to the Cape of Good Hope, and the captain of The Alabama requested that she should be admitted into Simon's Bay as a tender of his vessel-in other words, as a ship of war. The Attorney-General of the colony gave it as his opinion that she had been sufficiently set forth as a vessel of war to justify the local authorities in admitting her as such, and that her real character could only be determined in the courts of the captor's country. She was, therefore, allowed to enter the port and obtain provisions. On the 26th December, 1863, The Tuscaloosa again put into Simon's Bay, and was this time seized by the local authorities. This, however, was considered unjustifiable by the Home Government. Whatever the character of the ship might have been during her first visit, she was treated as a ship of war, and was, therefore, entitled to expect the same treatment again, unless she received due warning that a different course would be pursued. Accordingly, orders were sent out to release and deliver her up to some Confederate officer, but as a matter of fact she never was delivered up to that government (t).

Vattel states that the impartiality, which a neutral nation ought to observe between the belligerent parties, consists of two points.

1. To give no assistance where there is no previous stipulation to give it; nor voluntarily to furnish troops,

(8) Opinion of Law Officers of the Crown. British Appendix to case at Geneva, vol. ii. p. 323.

(t) Parl. Papers, 1873, N. America (No. 2), pp. 201–204.

arms, ammunition, or anything of direct use in war. Chap. III. "I do not say to give assistance equally; but to give no assistance: for it would be absurd that a State should assist at the same time two enemies. And besides, it would be impossible to do it with equality: the same things, the like number of troops, the like quantity of arms, of munitions, &c., furnished under different circumstances, are no longer equivalent succours."

2. "In whatever 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" (u).

$436. Arming and equipping vessels, and within the enlisting men

unlawful.

These principles were appealed to by the American 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 neutral terrimen within the ports of the United States, by the respec- belligerent, tive belligerent powers, to cruise against each other. It was stated that if the neutral power might not, consistently 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

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

Part IV. 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 (x).

§ 437.

Prohibition enforced by American municipal statutes.

§ 438. British

Foreign

Enlistment
Act.

The same principles were afterwards incorporated in 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 the public force in enforcing the duties of neutrality prescribed by the law (y).

The example of America was soon followed by Great Britain, in the Act of Parliament 59 Geo. III. c. 69, entitled, "An Act to prevent the Enlisting or Engage

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

(y) Kent's Comm. on American Law, vol. i. p. 123, 5th ed.

593

ment of His Majesty's Subjects to serve in foreign Chap. III. Service, and the Fitting out or Equipping in His Majesty's Dominions Vessels for warlike purposes, without His Majesty's Licence." 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. c. 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 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,

W.

Q Q

$439. Debates on 1819.

the Act of

Part IV. 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 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.