granting it, and so far as its terms can be fairly construed to extend. The officers and tribunals of the state under whose authority they are issued, are bound to respect such documents as lawful relaxations of the ordinary state of war; but the adverse belligerent may justly consider them as per se a ground of capture and confiscation."

Several cases have come before international commissions in which the acceptance by a neutral of an enemy license or the carrying on of trade under the protection of one belligerent was regarded as sufficient reason for the confiscation of the property involved by the other belligerent.1

The Supreme Court has held that a vessel and cargo liable to capture for sailing under a pass or license of the enemy, or for trading with the enemy, may be seized after the vessel's arrival in a port of the United States and condemned as prize of war. The fault is not purged by the termination of the voyage.2

$357. Special Cases of Intercourse with Enemies,

The carrying of a petition to the commander of the French Imperial forces, then at war against Mexico, requesting the release of a certain prisoner, was held not to be such an illicit intercourse as warrants a fine by Mexican authorities for violating the laws of war and bearing communications to the enemy.3

In the case of the Felix, the property of an American citizen taken on board at New Orleans was held not subject to confiscation, although the vessel had come with some Spanish cargo from Havana and proceeded, after taking this additional cargo at New Orleans, to a Mexican port, being subsequently captured on the way.1

While the establishment of a blockade renders any attempt to break

1 Biencourt (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2818-2819 (property of an American citizen domiciled in Mexico seized by Mexico while under French military escort); Torre and Labordette (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2816; Scott (U. S.) v. Mexico, July 4, 1868, ibid. 2817.

2 The Caledonian, 4 Wheat. 100; see also Castro (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2816.

3 Johnson (U.S.) v. Mex., July 4, 1868, Moore's Arb. 2817.

The Felix (U. S.) v. Mexico, Domestic Commission of Mar. 3, 1849, Moore's Arb.,

it, either by belligerents or neutrals, a just cause for condemnation, an anticipated blockade of the ports of one belligerent by the forces of the other does not interfere with the freedom of neutral commerce, for, said Pinkney, American Commissioner in the Commission under the Jay Treaty 1 "there cannot be a constructive blockade to the prejudice of the trade with neutrals" and, added Trumbull in the same case,2

"it is lawful for a citizen of the United States during the war between Great Britain and France to carry on a trade in provisions between the United States and French possessions in the West Indies, for this is neither inconsistent with the law of nations nor with the duties of neutrality."

The Court of Claims has in a number of cases had to decide whether certain transactions carried on by individuals in the confederate states with aliens, or with American citizens, were unlawful under the nonintercourse act, or the abandoned and captured property act.3

UNNEUTRAL CONDUCT AND UNFRIENDLY ACT

§ 358. Breach of Neutrality.

The breach of neutrality constitutes one of the largest classes of cases in which the protection of the national government is forfeited, in whole or in part. We shall not enter here into an examination of the duties incumbent upon states themselves to observe neutrality in the case of war between two other nations, but shall confine our discussion to such cases of breach of neutrality by an individual as incur either a criminal prosecution under municipal law or the loss

1 The Betsey (U. S.) v. Gt. Brit., Nov. 19, 1794, Moore's Arb. 2839.

2 Ibid, 2848.

Mayer v. U. S., 3 Ct. Cl. 249, to the effect that the collection of ante-bellum debts in the confederate lines was not commercial intercourse with the enemy. Investment by a loyal citizen in the confederate lines in a city captured by Union forces, making the purchaser a resident within the Union lines, took him and the transaction out of the prohibition of the non-intercourse act of 1861; Furman v. U. S., 5 Ct. Cl. 579; La Plante v. U. S., 6 Ct. Cl. 311. To the effect that the non-intercourse act did not apply to purchases of cotton in the disloyal states by an alien resident abroad through an agent, where it does not appear that the agent was appointed, or the means to purchase transmitted, during the rebellion, see Ensley v. U. S., 9 Ct. Cl. 11; 6 Ct. Cl.

(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, 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

5 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." 2

"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.