writers on international law. Professor Bernard agrees with me in considering international obligation or international morality (he adopts the term) to be the foundation of international law-in looking upon the Foreign Enlistment Act as an Act framed for the purpose of carrying out an international obligation-in regarding the export of contraband as an illegal Act on the part of neutral subjects, and for that reason liable to confiscation by international law, but still not as an act which a neutral government is bound to prevent, for the same reasons as those given in the text-and in holding that the Foreign Enlistment Act must not be construed too narrowly, but with some reference to the purposes for which it was framed. He agrees with me also in the question as to the claim for compensation, &c. He does not consider the question as to the validity of the commission of the Alabama and the consequences which flow from it, but from a conversation which I have lately had with him, I find that he agrees with me upon that point also, and considers the answer given by the Solicitor-General to Mr. Forster, M.P.,

to be unsound.

668

XXXII. THE PROVISIONS OF THE FOREIGN ENLISTMENT ACT RELATING TO SHIPS.-By FRANCIS S. REILLY, Esq., BARRISTER-AT-LAw.

(Read 4th May, 1863.)

THE subjects of a neutral State are deeply interested in the law that regulates their relations with the belligerents. It is on this ground I ask you to consider the nature and extent of the provisions of the Act of 1819, as far as they relate to ships, and the expediency of any extension of the principle of those provisions to cases not embraced in their terms.

This would certainly not be a convenient time for the Legislature to consider of an alteration of the Act; still, suggestions may be noted for future use. There is always this difficulty in the handling of delicate subjects; in quiet times men in positions of responsibility are reluctant to stir them, without necessity, and all consideration of the questions that have arisen about them is tacitly postponed; when the stress comes again, it is unsafe to meddle with them.

An interpretation of the Act, not altogether sound, as it seems to me, but forcibly and clearly put, has had the benefit of very conspicuous publicity, and I propose to comment on that; but it is no part of my object to express an opinion on any case, past or pending, that has arisen on the Act.

The provisions of the Foreign Enlistment Act relating to ships are of two classes:

First-Those that relate to ships in connection with the enlistment of men, the ships being regarded merely as vehicles for the men:

Second-Those that relate to the equipment, armament, and commissioning of ships for purposes of war, independently of the enlistment of men.

THE PROVISIONS OF THE FOREIGN ENLISTMENT ACT, ETC. 669

Sections 5 and 6 are in the first class; sections 7 and 8 in the second. The sections are almost entirely unconnected with each other.

Section 5 may for the present purpose be stated thus:

In case any ship, in any port within His Majesty's dominions, has on board any person who has been enlisted or entered to serve or has engaged to enlist or enter or serve, or who is departing from His Majesty's dominions for the purpose and with the intent of enlisting or entering to serve, or to be employed, or of serving, or being engaged, in the service of any foreign Prince, as an officer, soldier, sailor, or marine, contrary to the provisions of the Act,any principal officer of Customs, upon information on oath that such person is on board the ship, may detain and prevent the ship from proceeding to sea on her voyage, with such person on board.

Detention under this section is merely temporary and preventive; there is no consequent forfeiture of the ship. The section applies only when the men enlisted are actually on board; the detention may be got rid of by their debarkation. But probably, in many cases, detention under this section would be sufficient to prevent the consummation of an attempted infringement of the provisions of section 7, either by rendering it impossible for a ship equipped, armed, or commissioned, in violation of the provisions of section 7, to get out of port, for want of a crew, or at least by delaying her from proceeding to sea on her voyage sufficiently long to allow of the completion of evidence against her, and her consequent seisure, with a view to prosecution and forfeiture, under section 7. Section 5 applies to foreign ships as well as to British, and, it would seem, to foreign public ships of war; for a foreign public ship of war is exempt from the territorial jurisdiction only as long as those in charge of her demean themselves according to the local law.

Section 6, in an abbreviated form, runs thus:—

If any master, or other person, having or taking the charge or command of any ship in His Majesty's dominions, knowingly and willingly takes on board, or if such master, or other person, or any owner of any such ship, knowingly engages to take on board, any person who has been enlisted in any naval or

military service, contrary to the provisions of the Act, such master, or owner, or other person, shall forfeit fifty pounds for each such person; and, moreover, every ship so having on board, conveying, carrying, or transporting any such person, may be seised and detained by the collector of Customs, until the penalty is paid, or until such master, or person, or the owner gives bail for payment of the penalty.

I will only remark on this section that here, again, there is no forfeiture of the ship. The seisure and detention are only in aid of the recovery of penalties.

Passing section 7 for the moment, I will next state the effect of section 8.

If any person in His Majesty's dominions, without the licence of His Majesty, by adding to the number of the guns of such vessel [no vessel is previously mentioned in the section], or by changing those on board for other guns, or by the addition of any equipment for war, increases or augments, or procures to be increased or augmented, or is knowingly concerned in increasing or augmenting, the warlike force of any ship of war, or cruiser, or other armed vessel, which, at the time of her arrival in His Majesty's dominions, was a ship of war, cruiser, or armed vessel in the service of any foreign Prince, every such person shall be guilty of a misdemeanour, and shall be punished by fine and imprisonment.

This provision plainly applies to public ships of war; and, indeed, the corresponding provision in the United States Act has been decided by the Supreme Court so to apply. The section seems to impose penalties on any person connected with such a ship committing a misdemeanour within the terms of the section.

I now come to section 7, which is the principal provision. It is directed against the original equipment, armament, or commissioning of a ship. Its words are as follows:

"If any person within . . . the United Kingdom, or ... His Majesty's dominions beyond the seas, shall, without the . . . licence of His Majesty, equip, furnish, fit out or arm, or attempt or endeavour to equip, furnish, fit out, or arm, or procure to be equipped, furnished, fitted out, or armed, or shall knowingly aid, assist, or be concerned in the equipping, furnishing, fitting out, or arming of any ship or vessel with intent or in order that such ship or vessel shall be employed in the service of any foreign

Prince, State, or potentate, or of any foreign colony, province, or part of any province or people, or of any person or persons exercising or assuming to exercise any powers of government in or over any foreign state, colony, province, or part of any province or people, as a transport or store ship, or with intent to cruise or commit hostilities against any Prince, State, or potentate, or against the subjects or citizens of any Prince, State, or potentate, or against the persons exercising or assuming to exercise the powers of government in any colony, province, or part of any province or country, or against the inhabitants of any foreign colony, province, or part of any province or country, with whom His Majesty shall not then be at war; or shall within the United Kingdom, or any of His Majesty's dominions, or in any settlement

. . . . subject to His Majesty, issue or deliver any commission for any ship or vessel, to the intent that such ship or vessel shall be employed as aforesaid,— every such person so offending shall be deemed guilty of a misdemeanour, and shall, upon conviction thereof, upon any information or indictment, be punished by fine and imprisonment, . . . . and every such ship or vessel, with the tackle, apparel, and furniture, together with all the materials, arms, ammunition, and stores, which may belong to, or be on board of any such ship or vessel, shall be forfeited; and it shall be lawful for any officer of His Majesty's Customs. . . . to seise such ships and vessels aforesaid, . . . and that every such ship and vessel, with the tackle, apparel, and furniture, together with all the materials, arms, ammunition, and stores, which may belong to, or be on board of such ship or vessel, may be prosecuted and condemned in the like manner, and in such courts as ships or vessels may be prosecuted and condemned for any breach of the laws made for the protection of the revenues of Customs.

Under this enactment there may be, not a mere temporary detention of the ship, or a mere prosecution of persons, but an absolute forfeiture of the ship, carrying with it not only pecuniary loss to the owners, but also the total defeat of their plans for the use of the ship, whatever they may have been.

The question then becomes very important,-to what ships does the section apply?

The words are" every such ship shall be forfeited." That means, every ship in relation to which there has been committed any one of the offences enumerated in the early part of the section,