tinguished colleague, Mr. Adams, who, writing to Earl Opinion of Mr.. Russell on the 6th of April, 1863, states, with reference to Adaius. certain American authorities which Lord Russell had appealed to :

The sale and transfer by a neutral of arms, of munitions of war, and even of vessels of war, to a belligerent country, not subject to blockade at the time, as a purely commercial transaction, is decided by these authorities not to be unlawful. They go not a step further; and precisely to that extent I have myself taken no exception to the doctrine.1 This being the present state of international law on this subject, if it is desirable to introduce new rules, it must be done by the common consent of nations, not by the speculative doctrines proibition of sale of of theorists, however distinguished.

Question as to

articles contraband

of war.

But is it desirable that it should be altered, and that obstacles to the industry and trade of neutral nations should be created?

Azuni observes:

Une grande partie du commerce de quelques nations européennes, telles que les Suédois, les Norvégiens, et les Russes, consiste en marchandises nécessaires pour la guerre maritime, pour la construction et pour l'équipement d'une flotte; elles vendent en temps. de paix, à quiconque en a besoin, du fer, du cuivre, des mâts, des bois, du goudron, de la poix, et des canons, enfin des navires de guerre entiers. Quelles raisons pourrait-il y avoir de priver ces nations de leur commerce et de leur manière de subsister, à l'occasion d'une guerre à laquelle ils ne prennent aucune part? Il n'y a dans le code de la justice et de l'équité rien en faveur d'une telle protection. Il est donc nécessaire d'établir, comme maxime fondamentale de tout droit, que, les peuples neutres devant et pouvant licitement continuer le commerce qu'ils font en temps de paix, on ne doit faire aucune distinction de denrées, de marchandises, et de manufactures, quoique propres à la guerre, et que, par cette raison, la vente et le transport aux parties belligérantes en sont permis, si le commerce actif et passif était établi en temps de paix, saus qu'on puisse prétendre, en aucune manière, que la neutralité soit violée, pourvu que cela se fasse sans animosité, sans préférence et sans partialité.

I cannot but feel the force and justice of these observations. I ask in like manner, "Why-unless, indeed, on account of reasons of state affecting the interests of the neutral state itself, in which case private interests must give way to those of the public-are the armorers of Birmingham or Liege, or the shipbuilders of London or Liverpool, to have their business put a stop to because one of their customers happens to be engaged in war with another state? It is not enough to say that but for the war the demand for the articles in question would not have arisen. From whatever cause it may proceed, increased demand is the legitimate advantage of the producer or the merchant, and it is by the advantage which periods of increased and more active demand bring with them that the loss arising from occasional periods of stagnation is balanced and made good.

The authors who desire to put further restraints on the free commerce of neutrals than international law has hitherto done, appear to me to think too much of the interests of belligerents, who are the disturbers of the world's peace, and to be too unmindful of the interests of neutral nations, who are simply seeking occupation for their industry and commerce, indifferent by whom they are employed. They seem to think that the belligerent is granting an indulgence or conferring a favor on the neutral in allowing him to remain a stranger to the war, which the grateful neutral should be too glad to purchase by the sacrifice of all rights at all incompatible with the convenience of the bellig.

erent.

M. Hautefeuille, indeed, invokes humanity, and would prohibit the sale of articles of warlike use in order to prevent and put an end to war. But if considerations of humanity are to be taken into account, it is obvious that the sale of such things should be prohibited in time of

peace, as well as of war. They are not the less available in time of war because bought in time of peace.

The armorer or the shipbuilder who is thus required to close his establishment to the belligerents when war arises, may continue to manufacture and sell, undisturbed, his instruments of destruction down to the very hour when war is proclaimed. Had Prussia, for instance, anticipated the attack of France as likely to occur so soon, and had desired to procure a fleet, she might have resorted to the shipwrights' yards of England till she possessed ships enough to cope with her formidable adversary on the seas. But let war but be proclaimed, and according to these views the work becomes at once criminal, the workman's hammer must be arrested, the shipwright's yard closed. There may be reasons of state in certain instances-as according to British and American views in the case of ships-for putting a restraint on the freedom of trade, but it seems idle to base it on the score of humanity. The effect would simply be that a government meditating the invasion of another country would have to provide itself in time. The neighbor upon whom it thus brings war on the sudden, and who may be comparatively unprepared, is not to be at liberty to seek the materials of war elsewhere, but is to be left at the mercy of the invader. Peaceful nations would thus be at the mercy of others more ambitious and warlike and better prepared than themselves. The weak would be sacrificed to the strong. Let me suppose a people rising in a just and righteous cause. I will not offend the patriotic susceptibility of my honorable and esteemed colleague by suggesting, for a single instant, even hypothetically, the possibility that the cause of the insurgents might have been such a one-I will take what he will readily admit to have been so, the separation of the United States from the mother country. Let me suppose that, while Great Britain had her fleets prepared, her troops armed, her arsenals well stored, America had neither ships nor arms, nor munitions of war, with which to resist the superior forces of her adversary. Would it have been in the interest of humanity that she should be shut out from the markets of the world? An appeal to considerations of humanity has no doubt something very captivating about it; but I question very much whether humanity would not lose more than it would gain by the proposed restraint on the commercial freedom of nations.

out for immediate

service.

The case, however, becomes essentially different when a ship thus Ship of war sent equipped and armed is not sent out to be taken to the port of the belligerent purchaser, but is sent to sea with officers and a fighting crew for the purpose of immediate warfare. Under such circumstances the transaction ceases to be one of mere commerce, and assumes the form of a hostile expedition sent forth from the territory of the neutral. Such an expedition is plainly a violation of neutrality, according to international law, and one which the neutral government is bound to do its best to prevent.

crew sent out in different ships.

But what if, in order the better to avoid observation and detection, Armament and the vessel is sent forth, without its armament, without its war crew, and these, sent to it by another or different vessels, are put on board of it in some place or water beyond the jurisdiction of the neutral? In my opinion, except so far as the question of diligence is concerned, as to which it may form a very material element, this makes no difference. The ship, the armament, the crew, though sent out separately, form each of them part of one and the same enterprise or undertaking. Taken together, they constitute a hostile expedition and must be treated as such. It is as though a hostile force were

sent by sea to invade an enemy's territory, and each arm of the force so sent, infantry, cavalry, artillery, were embarked in different ships. The whole would still form one expedition. So here, ships, guns, crew, are each a part of one entire whole to be employed and used in furtherance of one common design. This is happily expressed in the American Law Review, in the article already cited: "It was not," writes the author, "because the Messrs. Laird sold a war ship to the confederates that we have a claim against England for a breach of international law; but it was because collateral arrangements for completing the equipment and armament of the ship so sold, by placing on board officers and crew, guns and provisions, rendered the entire procedure, in fact, the incep tion of a hostile undertaking from the confines of a neutral country."

Of course the question may become one of degree. The interval of time which might elapse between the sending out of the ship and that of the crew, the distance between the neutral territory and the place at which the war-crew are to join, the possible fact that it was originally intended to procure a crew in some other country than that of the neutral, the occurrence of intermediate circumstances, might fairly lead to the inference that there was no present intention to apply the vessel to the purpose of war, which in my mind is an essential element in ascribing a belligerent character to that which might otherwise have remained a purely commercial transaction.

An expedition of this kind being an undoubted violation of neutrality, every one will agree that it is the duty of the neutral gov- Duty of neutral ernment, if it knows that such expedition is about to leave government. its waters, to use due diligence to prevent it. Nor does the duty of the neutral government end here. It is also its duty to use due diligence to make itself informed as to the true character and destination of a vessel, where there is reasonable ground to suspect that such character and destination are unlawful.

The duty of the neutral government in this respect appears to me to involve three things: first, that the law of the neutral shall be sufficient to enable the executive to prevent breaches of its duties as a neutral secondly, that, where its application is called for, the law shall be put in force honestly and in good faith; thirdly, that all proper and legitimate means shall be used to detect an intended violation of the law, so as by the application of the law to prevent it.

ment as to effect of

Having thus seen what is the present state of international law, according to the views of leading jurists and the practice American arguof nations, more especially that of England and America, foreign-enlistment the parties to the present dispute, we are enabled to form act. an opinion as to how far the assertion in the case of the United States that the English foreign-enlistment act, which, going far beyond the restraints which international law imposes on the neutral subject, prohibits even the fitting-out and equipping of vessels for the purpose of war, is only a recognition of duties imposed by international law. The proposition is altogether untenable.

It is, in the first place, altogether at variance with what we know historically to have been the origin both of the American acts of 1794 and 1818, and of the British act of 1819, to say that either of these acts arose out of, or was passed to prevent, the building or equipping or arming of ships of war to be sold to a belligerent.

British and American acts.

The American act of 1794 was passed in consequence of the proceedings of the French envoy and consuls in the United States, on the breaking out of the war between Great Britain and France, in procuring privateers to be fitted out and manned by Ameri

can citizens, and furnishing them with letters of marque as privateers. It was not a question of fitting out ships to be sold to the French government, but of fitting out American vessels, the property of American owners, and manned by American crews, to prey, under commissions as privateers, upon the commerce of a friendly nation.

In like manner, the American act of 1818 arose out of the precisely similar conduct of American citizens in fitting out American vessels, manned by American crews, against the commerce of Spain and Portugal, under commissions as privateers from the de facto governments of the revolted colonies of the two countries.

The Spanish minister had loudly complained that some thirty vessels, specifically named, the property of American citizens, and belonging to ports of the Union, were thus preying on Spanish commerce.

The representative of Portugal made similar complaints.

This practice carried on, on so large a scale, created great scandal; and after the complaints had gone on for two years, the act of 1818 was passed to put a check on it, if possible. This act, in addition to the enactments of that of 1794, required that a bond in double the value of the ship should be given in the case of any armed vessel, owned in whole or in part by American citizens, going out of an American port, that the vessel should not be employed against a foreign government; and gave power to the collectors of customs to detain any vessel, built for war, leaving an American port, under certain suspicious circumstances specified in the act. It is plain that this statute, like its predecessor, was directed against privateering carried on by American citizens against countries with which the United States were at peace. Building or fitting out ships of war for a belligerent had not come into question at that time at all.

In like manner the British act of 1819 had in view, not the prevention of building or equipping ships for a belligerent, in the way of trade, but the prevention of military or naval expeditions on behalf of the revolted colonies, or malcontent subjects of Spain. Its origin is briefly stated in the report of Lord Tenterden to the neutrality laws commis sion :

The British foreign-er listment act may be said to have arisen from the provision of a treaty; that with Spain of the 28th of August, 1814.

This treaty, or, as it is called, "additional articles to the treaty of July 5, 1814,” contains the following article:

“ARTICLE III. His Britannic Majesty, being anxious that the troubles and disturbances which unfortunately prevail in the dominions of His Catholic Majesty in America should entirely cease, and the subjects of those provinces should return to their obedience to their lawful sovereign, engages to take the most effectual measures for preventing his subjects from furnishing arms, ammunition, or any other article to the revolted in America."

In 1818 the reactionary policy of King Ferdinand, the prohibitory duties imposed by him on British commerce, and the ingratitude with which he treated British officers and others who had served his cause in Spain, had provoked a great deal of irritation in England; and there was a considerable party in the House of Commons, headed by Sir James Macintosh, who were prepared to support the claims of the Spanish American colonies to independence.

Expeditions were said to be in preparation for rendering active assistance both to the malcontents in Spain and to the rebels in America, in spite of a proclamation forbidding such expeditions, which had been published in 1817; and the Government consequently found that it was necessary, in order to keep good faith with Spain and to prevent infractions of British neutrality, to bring in an act of Parliament to provide for the case which now for the first time arose in modern history, of Great Britain being neutral at the time of a great maritime war.1

That it was against armaments going out from the shores of Great Britain that the measure was directed is plain from some of the argu

1 See report of commission, p. 37; British Appendix, vol. iii.

ments used by Mr. Canning in the course of the debate on the bill. Thus he says:

If a foreigner should chance to come into any of our ports, and see all this mighty armament equipping for foreign service, he would naturally ask, "With what nation are you at war?" The answer would be, "With none.

"For what purpose, then," he would say," are these troops levied, and by whom?" The reply of course must be, "They are not levied by government; nor is it known for what service they are intended; but, be the service what it may, government cannot interfere." Would not all that give such a foreigner a high idea of the excellence of the English constitution? Would it not suggest to him that for all the ordinary purposes of a state there was no government in England? Did the honorable and learned gentlemen not think that the allowing of armaments to be fitted out in this country against a foreign power was a just cause of war?1

Mr. Robert Grant, another member of the government, said that— Every government, in its foreign relations, was the representative of the nation to which it belonged, and it was of the highest importance to the peace of nations that governments should be so considered. Nations announced their intentions to each other through the medium of their rulers. Hence every state knew where to look for expressions of the will of foreign nations; where to learn whether war or peace was intended; where to demand redress for injuries, and where to visit injuries unredressed. But all this system was inverted and thrown into confusion, if the governquent might act in one way and the nation in another. All this system was at an end if, while we were professedly at peace with Spain, she was to be attacked by a large army of military adventurers from our own shores-a sort of extra-national bodyatterly irresponsible-utterly invulnerable, except in their own persons-for whose acts no redress could be demanded of the British government-who might burn, pillage, and destroy, then find a safe asylum in their own country, and leave us to say, We have performed our engagements-we have honorably maintained our neutral character."

But the language of these acts being large enough to embrace a case of the equipping a vessel for a foreign belligerent, the foreign-enlistment act has been made available for the purpose of preventing a traffic which is calculated to cause embarrassment to a government pressed by the remonstrances of belligerents. And this act having been so often appealed to and discussed, a notion has sprung up that the equipment of vessels of war, though in the way of trade, is a violation of neutrality, while, in fact, it is only a violation of the municipal law.

Mr. Dana, in the passage before cited, puts the matter on the right ground.

As to effect of act

Again, it is idle to contend that alterations in the law, since made by statute, to give a greater power to the executive in dealing with suspected vessels, are to be taken as the measure of of 1879. the obligations incumbent on the British government by international law. Catching at a few words in the report of the royal commissioners, who, in recommending certain statutory additions to the law, add: "In making the foregoing recommendations we have not felt ourselves bound to consider whether we were exceeding what could actually be required by international law, but we are of opinion that if those recommendations should be adopted, the municipal law of this realm available for the enforcement of neutrality will derive increased efficiency, and will, so far as we can see, have been brought into full conformity with Your Majesty's international obligations," the United States desire that it shall be taken, notwithstanding that the commissioners expressly say that their recommendations are independent of any considerations of international law; that these statesmen and learned jurists meant that without these additions the law of England failed to come up to the exigencies of international law. Such an argument is really undeserving of serious notice.

1 Hansard's Parliamentary Debates, volume 40, page 1106. See also extracts given in the Argument of the United States, page 510.

2 Hansard, volume 40, page 1244. Árgument of United States, page 512.