ommonly called the Foreign Enlistment Act, provided a less evere punishment, and also supplied a defect in the former law, y introducing after the words "king, prince, state, or potentate," he words "colony or district assuming the powers of a governent," in order to reach the case of those who entered the service f unacknowledged as well as of acknowledged States. The act Iso provided for preventing and punishing the offence of fitting ut armed vessels, or supplying them with warlike stores, upon which the former law had been entirely silent.

It

In the debates which took place in Parliament upon the enactnent 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. 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, and operate as a law of favor 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 succors 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 appli

cable 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. Such an order was consequently issued, and the prohibition of exporting arms and ammunition to Spain was removed. By this measure the British government offered a guarantee of their bona fide neutrality. The mere appearance of neutrality might have been preserved by the extension of the prohibition to France, instead of the removal of the prohibition from Spain: but it would have been a prohibition of words only, and not at all in fact; for the immediate vicinity of the Belgic ports to France would have rendered the prohibition of direct exportation to France totally nugatory. The repeal of the act of 1819 would have, not the same, but a correspondent effect to that which would have been produced by an order in council prohibiting the exportation of arms and ammunition to France. It would be a repeal in words only as respects France, but in fact respecting Spain; and would occasion an inequality of operation in favor of Spain, inconsistent with an impartial neutrality. The example of the American government was referred to, as vindicating the justice and policy of preventing the subjects of a neutral country from enlisting in the service of any belligerent power, and of prohibiting the equipment in its ports of armaments in aid of such power. Such was the conduct of that government under the

residency of Washington, and the secretaryship of Jefferson; nd such was more recently the conduct of the American legisture in revising their neutrality statutes in 1818, when the Conress extended the provisions of the act of 1794 to the case of uch unacknowledged States as the South American colonies of Spain, which had not been provided for in the original law.'

§ 18. Im

munity of

the neutral

how far it

The unlawfulness of belligerent captures, made withn the territorial jurisdiction of a neutral State, is inconestably established on principle, usage, and authority, territory, Does this immunity of the neutral territory from the extends to exercise of acts of hostility within its limits, extend to sels on the the vessels of the nation on the high seas, and without high seas. the jurisdiction of any other State?

neutral ves

We have already seen, that both the public and private vessels of every independent nation on the high seas, and without the territorial limits of any other State, are subject to the municipal jurisdiction of the State to which they belong. This jurisdiction is exclusive, only so far as respects offences against the municipal laws of the State to which the vessel belongs. It excludes the exercise of the jurisdiction of every other State under its municipal laws, but it does not exclude the exercise of the jurisdiction of other nations, as to crimes under international law; such as piracy, and other offences, which all nations have an equal right to judge and to punish. Does it, then, exclude the exercise of the belligerent right of capturing enemy's property?

This right of capture is confessedly such a right as may be exercised within the territory of the belligerent State, within the enemy's territory, or in a place belonging to no one; in short, in any place except the territory of a neutral State. Is the vessel of a neutral nation on the high seas such a place?

between

A distinction has been here taken between the public Distinction and the private vessels of a nation. In respect to its public and public vessels, it is universally admitted, that neither the private ves

p. 34.

'Annual Register, vol. Ixi. p. 71. Canning's Speeches, vol. iv. p. 150; vol. v. 2 Vide ante, Pt. II. ch. 2, § 10, p. 158.

right of visitation and search, of capture, nor any other bellige rent right, can be exercised on board such a vessel on the high seas. A public vessel, belonging to an independent sovereign, is exempt from every species of visitation and search, even within the territorial jurisdiction of another State; à fortiori, must it be exempt from the exercise of belligerent rights on the ocean, which belongs exclusively to no one nation?1

In respect to private vessels, it has been said the case is different. They form no part of the neutral territory, and, when within the territory of another State, are not exempt from the local jurisdiction. That portion of the ocean which is temporarily occupied by them forms no part of the neutral territory; nor does the vessel itself, which is a movable thing, the property of private individuals, form any part of the territory of that power to whose subjects it belongs. The jurisdiction which that power may lawfully exercise over the vessel on the high seas, is a jurisdiction over the persons and property of its citizens; it is not a territorial jurisdiction. Being upon the ocean, it is a place where no particular nation has jurisdiction; and where, consequently, all nations may equally exercise their international rights.2

§ 19. Usage of nations subjecting enemy's goods in

sels to cap

Whatever may be the true original abstract principle of natural law on this subject, it is undeniable that the constant usage and practice of belligerent nations, neutral ves- from the earliest times, have subjected enemy's goods in neutral vessels to capture and condemnation, as prize of war. This constant and universal usage has only been interrupted by treaty stipulations, forming a temporary conventional law between the parties to such stipulations.3

ture.

1 Vide ante, Pt. II. ch. 2, § 10, p. 158.

2 Rutherforth's Inst. vol. ii. b. ii. ch. 9, § 19. Azuni, Diritto Maritimo, Pt. II. ch. 3, art. 2. Letter of American Envoys at Paris to M. de Talleyrand, January, 1798. Waite's American State Papers, vol. iv. p. 34.

3 Consolato del Mare, cap. 273. Wheaton's Hist. Law of Nations, pp. 65, 115-119, 200-206. Albericus Gentilis, Hisp. Advoc. lib. i. cap. 27. Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 6, §§ 6, 26; cap. 1, § 5, Note 6. Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 14. Vattel, Droit des Gens, liv. iii. ch. 7, § 115, Heineccius, de Nav. ob. vect. cap. 2, § 9. Loccenius, de Jure Marit. lib. ii. cap. 4. § 12. Azuni, Diritto Marit. Pt. II. ch. 3, art. 1, 2.

laden with

goods sub

The regulations and practice of certain maritime 20. Neunations, at different periods, have not only considered tral vessels the goods of an enemy, laden in the ships of a friend, enemy liable to capture, but have doomed to confiscation the ject to confiscation by neutral vessel on board of which these goods were laden. the ordiThis practice has been sought to be justified, upon a some States. supposed analogy with that provision of the Roman law, which involved the vehicle of prohibited commodities in the confiscation pronounced against the prohibited goods themselves.1

nances of

Thus, by the marine ordinance of Louis XIV., of 1681, all vessels laden with enemy's goods are declared lawful prize of war. The contrary rule had been adopted by the preceding prize ordinances of France, and was again revived by the règlement of 1744, by which it was declared, that "in case there should be found on board of neutral vessels, of whatever nation, goods or effects belonging to his Majesty's enemies, the goods or effects shall be good prize, and the vessel shall be restored." Valin, in his commentary upon the ordinance, admits that the more rigid rule, which continued to prevail in the French prize tribunals from 1681 to 1744, was peculiar to the jurisprudence of France and Spain; but that the usage of other nations was only to confiscate the goods of the enemy.2

§ 21. Goods of a

friend on

board the

liable to

Although by the general usage of nations, independently of treaty stipulations, the goods of an enemy, found on board the ships of a friend, are liable to cap- ships of an ture and condemnation, yet the converse rule, which enemy, subjects to confiscation the goods of a friend, on board confiscation by the prize the vessels of an enemy, is manifestly contrary to rea- codes of son and justice. It may, indeed, afford, as Grotius has tions. stated, a presumption that the goods are enemy's property; but it is such a presumption as will readily yield to contrary proof, and not of that class of presumptions which the civilians call presumptiones juris et de jure, and which are conclusive upon the party.

some na

1 Barbeyrac, Note to Grotius, lib. iii. cap. 6, § 6, Note 1.

2 Valin, Comm. liv. iii. tit. 9. Des Prises, art. 7. Wheaton's Hist. Law of Nations, pp. 111-114.