Municipal Law. The equality of treatment required. Traffic between This country cannot concede to the one what it re- International and fuses to the other, or deny to the one what it accords to the other. By the settled law of nations traffic between neutral and belligerent states in articles contraband of war is perfectly lawful. neutrals and belligerents lawful. There is no penalty incident to such traffic except the risk of capture and confiscation. Ships are contraband Capture and confiscation the of war as much as arms and ammunition. There is sole penalty. nothing in the Foreign Enlistment Act which takes Contraband not altered by F.E. ships out of that category. Act. There is nothing in it which forbids the building and Building & sale sale of ships to any purchaser at home by the neutral subject, or their transmission for sale or delivery to any foreign country, belligerent or non-belligerent. of ships not forbidden. of neutral ship affected. There is nothing in it which narrows the rights and Privileges privileges of the neutral shipwright to the mere building wrights of ships on speculation; hence it would seem that he may lawfully build a ship by contract, with any purchaser indifferently, for the building of a ship. not intent only for bidden. It is the active personal co-operation by the subject Acts with hostile in foreign contest that the act prohibits. It is the animus belligerendi of a subject which renders his otherwise innocent commercial transactions obnoxious to the municipal law. The illegal intent is indispensable to constitute an offence against the act. The queen by her royal proclamation, though vested Operation of the queen's prowith that power by statute, does not prohibit the clamation. exportation, even sub modo, of contraband of war. Her Majesty's prerogative does not extend to that without the concurrence of the other states of the realm. merely proclaims the policy of the Government in the recognition of the contending parties, and the declaration of neutrality. It does not abrogate the law of nations by creating a new offence or adding to the It International and penal code. It recites the operative clauses of the Municipal Law. Foreign Enlistment Act in their entirety; it neither adds to nor diminishes from the force of that statute; but, while enjoining the observance of the law as it is, not only warns her subjects against any violation of its provisions, but points out the consequences which attach to trading in contraband of war, not by reason of its unlawfulness, but to guard them against the fallacy of expecting protection, restitution, or compensation at the hands of the Crown in the event of capture by belligerents. foregoing pro Application of Applying these propositions to the present posture positions to of affairs between this country and the transatlantic of affairs. belligerents, the legitimate inference to be drawn from present state rights of Bri ers. them appears to be as follows:— Result as to the The British shipbuilder has the undoubted right of tish shipbuild- trading with the belligerents in ships as well as arms and other contraband of war, subject only to the risk of capture and confiscation, so long as he takes no part in the contest, reserves to himself no power or control over the application to hostile purposes of the contraband articles supplied by him, but simply confines himself, in his dealings with his customers, to the ordinary course of commercial operations. Subject to these conditions, he may build ships and manufacture arms or other articles contraband of war on speculation, for sale to any purchaser. He may contract for that purpose, and such contracts are not vitiated because the other contracting party happens to be one or other of the belligerent powers, or an accredited agent of those powers. Caution against abuse of neu Having arrived at and endeavoured carefully to state tral privileges. this conclusion, it is still important to guard against the possibility of any misapprehension which might lead to the abuse of the privileges of the shipbuilder; there- International_and Municipal Law. fore, in leaving this subject, it is impossible to insist too strongly on the distinction between the supply of contraband of war to a purchaser by a neutral subject in the ordinary course of business, and the act of such neutral in making common cause with one of the belligerents against the other, by originating or combining with one of those belligerents in a common design to commit hostilities against the other: for if with this intention a ship of war be built it is an offence against the spirit of the act, from the moment her keel is laid until she is fully equipped for her unlawful object. The moment the animus vendendi of the builder is superseded by the animus belligerendi, the statute comes into play against him. It may be questionable whether the equipment, furnishing, fitting out, or arming of a ship by a subject in Her Majesty's dominions, apart from any animus belligerendi, constitutes an offence against the Foreign Enlistment Act. The expressions equipment, furnishing, fitting out, or arming of a ship, whether construed as synonymous terms or not, cannot be held to include the unforbidden act of building a ship; but the act of a neutral in contracting with one of the belligerents to equip or arm a ship in this country, with a knowledge of the fact that she was to be used by the purchaser to commit hostilities against a friendly power, would be so far contrary to the spirit of the act as to render him liable to penal consequences, and the ship to forfeiture. The arming or augmentation of the warlike force of a foreign ship of war in our ports would clearly be so,'under the 8th section of the act. These risks, however, the British shipbuilder as yet does not appear to have encountered. CHAPTER VI. CONCLUDING OBSERVATIONS. vations. of an able Concluding obser- THE ink employed in the last chapter to pass a welldeserved eulogium on "Historicus" was scarcely dry, Inconsistencies before that able writer, with a strange perversity of commentator. genius, resumed the pen only to sully his own fair fame by the advocacy of new-fangled theories directly opposed to the facts and arguments by which he had acquired distinction in his earlier epistles. The castigator of Hautefeuille, whom he unsparingly condemns for broaching doctrines inconsistent with the established law of nations, falls himself into the same error. The satirist of Phillimore, upon whom he fixes a similar charge of inconsistency, condescends to bring himself to the level he condemns. The series of letters with which he favoured the public, and of which any legal author might be proud, derived their excellence less from the nervous eloquence he displayed than from the fact that his arguments were based upon the incontrovertible principles of international law, supported by references to the highest authorities, and borne out by the unequivocal decisions of competent legal tribunals. The great research, the unerring discrimination, and legal astuteness exhibited in those letters, not only reflected the highest credit upon the talent and well-directed industry of the author, but gave to his labours a value which the lucubrations of the mere theorist, however plausible their glozing, could never have attained. Suddenly descending from the eminence he had achieved, he vations. plunges into unsupported sophistries, regardless of law Concluding obserand precedent, and resorts to the timorous dictates of questionable expediency. In his letter of December 19th, 1862,* he says"I unhesitatingly assert, in contradiction to M. Haute"feuille, that the trade in contraband with either belligerent, by private persons of the neutral state, "within the territory, is a lawful trade; that it is not "the duty of a neutral government to prohibit such a "trade within its own territory; and that the bellige"rent state can have no ground of complaint against "the neutral government in respect of such a trade." In the same letter he quotes, and most emphatically indorses, the decision of Justice Story in the supreme court of the United States, that "there is nothing in แ our laws, or in the law of nations, that forbids our แ citizens from sending armed vessels as well as muni"tions of war to foreign ports for sale. It is a commer"cial adventure which no nation is bound to prohibit, "and which only exposes the persons engaged in it to "the penalty of confiscation." That there may be no misapprehension as to his meaning, no reticence on his part as to the existence of the Foreign Enlistment Act— of which America has a counterpart-he affirms, in his letter of four days afterwards,† that "the Foreign Enlist66 ment Act was not intended to, and did not in fact 66 operate, so as in any way to limit or control the absolute "freedom of neutral commerce. The enlistment act is "directed, not against the animus vendendi, but the animus belligerendi. A subject of the Crown may "sell a ship of war as he may sell a musket, to either "belligerent, with impunity. The purview *The Times, December 23, 1862. |