subjects from accepting privateering commissions or letters of marque to serve against the other.? Often the stipulation was added that offenders were to be punished as pirates. Such provisions were frequently mentioned by the courts as the basis for assuming jurisdiction over prizes brought into United States ports, and for restoring them to their original owners when it was proved that the captor was an American citizen operating under a foreign letter of marque. No criminal prosecutions have, however, been instituted under strength of the treaty provisions alone, although there would seem to be greater warrant for such action than under the general peace and amity provisions invoked in the Henfield case. On the contrary, the

. court in The Bello Corrunes, commenting on the fact that the acceptor of a certain commission to cruise against Spain ought to be indictable as a pirate according to the treaty with that country, expressed the opinion that under the “free institutions of this country” such action would probably be impossible.10 The fact that this duty was undertaken as a privilege, accorded to the contracting party, indicates that it was not regarded as a duty demanded by international law. Privateering itself is now prohibited by international law and states are therefore under the general obligation to prevent the acceptance of letters of marque by their subjects. The matter is

?The acceptance of letters of marque to serve against the contracting party is forbidden in the following treaties: France, 1778-1798, art. 21, Malloy, p. 475; Bolivia, 1858, art. 25, p. 121; Central America, 1825-1839, art. 24, p. 167; Chili, 1832-1850, art. 22, p. 178; Colombia, 1824-1836, art. 22, p. 299, 1846, art. 26, p. 310; Dominican Republic, 1867-1898, art. 25, p. 411; Ecuador, 1879-1892, art. 25, p. 428; Guatemala, 1849-1874, art. 24, p. 868; Hayti, 1864-1905, art. 31, p. 929; Netherlands, 1782-1795, art. 19, p. 1239; Peru, 1870-1886, art. 28, p. 423; 1887-1899, art. 26, p. 1439; Prussia, 1785-1796, art. 20, p. 1483; 1799-1810, art. 20, p. 1493; 1828, art. 12, p. 1499; Salvador, 1850-1870, art. 26, p. 1545; 1870-1893, art. 26, p. 1559; Spain, 17951902, art. 14, p. 1645; Sweden, 1783, art. 23, p. 1733, renewed, 1827, art. 17, p. 1754; Venezuela, 1860-1870, art. 25, p. 1853; Great Britain, 1794-1807, art. 21, p. 603.

mentioned in few if any particular treaties in force, but is considered in general law-making treaties and in statutes.

Article 22 of the treaty with France, of 1778, made it unlawful for foreign privateers other than those of France to fit their ships" in the ports of the United States, or to sell or exchange prizes which they had captured or to purchase provisions in excess of an amount necessary to supply them to the nearest home port. Since an implied exception was made in the case of Francell it seems that the duties here mentioned were not at that day conceived of as duties imposed by international law. Similar provision, without the exception for the benefit of the contracting parties, has been inserted in a number of other treaties.12 The special privilege accorded to France in this respect was the basis of much diplomatic difficulty in the early days of the United States, and it was finally abrogated in 179813 by act of congress. It is now clear that the duty to prevent the fitting out of armed vessels is required by international law, and no nation can be accorded special privileges in this regard compatibly with the continued maintenance of neutrality. The United States recognized this fact in the treaty of Washington with Great Britain in 1871.14 Article six of that treaty stated that a neutral government is bound to exercise “due diligence'' to prevent (1) the fitting out within its jurisdiction of vessels intended to cruise against foreign states and the departure of such vessels, and (2) the use of its ports or waters as a "base of naval operations for the augmentation of military supplies or for the recruitment of men. Although this treaty was concluded with the immediate purpose of furnishing a basis for adjudicating the so called Alabama claims, both countries expressly declared their intention to be bound for the future by these provisions. The treaty is still in force and is law in the United States.

(2) The greater part of these duties formerly stipulated for in treaties with single countries have now been incorporated in the Hague conventions and thus given more definite recognition as principles of international law. Those dealing with neutral duties are, however, by their terms binding only when all of the parties in the war are signatories.15 These conventions require a neutral state to prevent, by the use of force if necessary, the transportation of troops across its territory, or the use of neutral territory for erecting wireless stations or for recruiting.16 but it is stipulated that no obligation exists to prevent individuals crossing its frontiers for foreign service, or the exportation of arms by private persons.17 In reference to naval war, the neutral must use the “means at its disposal” to prevent the making of captures in territorial waters, the setting up of belligerent prize courts in its territory, or the use of its ports as a "base of naval operations.''18 The principle of the treaty of Washington, requiring the neutral state to prevent the fitting out or departure of armed vessels from its shores, is embodied practically verbatim.19 The neutral state is also required to prevent belligerent war vessels and prizes, enjoying the right of asylum in its ports, from exceeding the privileges accorded them by international law. Thus it must enforce the twenty-four hour stay and twenty-four hour interval rules and must prevent the carry. ing out of repairs by war vessels other than those "absolutely necessary to render them seaworthy," and the augmentation of their fighting force or armament. Fuel may only be given sufficient to reach the nearest home port and only once in three months in the same port to vessels of the same belligerent power. Failure to enforce these rules would constitute the neutral port a “base of naval operations."

As treaties are declared by the constitution to be part of the law of the land, it would seem that executive officers and courts are justified in assuming authority to carry out any of these provisions, even in the absence of express statutory authority. This view was upheld in the case of Ex parte Toscana.21

This case does not relate to a duty of prevention, but to the provision of

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the Hague convention of 1907 requiring a neutral state to vindicate its sovereignty by interning belligerent troops crossing its frontier. It would seem that if executive officers have power to perform that duty under authority of the treaty alone, a similar exercise of authority in performing duties of prevention would be upheld. Undoubtedly criminal prosecutions could not be undertaken solely under authority of the conventions,22 but it is believed that this case is authority for the view that executive action temporarily restraining property or persons, for the purpose of carrying out any of the duties of prevention required by treaty, would be upheld as valid and not in conflict with constitutional guarantees of "due process of law,” etc.

There are, however, statutory means provided for the more effective enforcement of most of the duties of prevention defined in these treaties, as well as those required by the general principles of international law not specified in treaties or international agreements.

STATUTORY PROVISIONS

(1) In 1794 the first neutrality statute was enacted.23 It defined certain actions on the part of citizens of the United States in aid of one of the belligerents as subject to criminal punishment, and gave administrative authority for the enforcement of these provisions.

The enactment of this statute was the outgrowth of two events, (1) the neutrality proclamation of the president and (2) the unsuccessful attempt to obtain a criminal conviction for a breach of neutrality under treaties, these proclamations and the common law. Washington's neutrality proclamation of April 22, 1793,24 after reciting the state of war which existed and the intention of the United States to remain neutral, said, "I have given instructions to those officers to whom it belongs to cause prosecution to be instituted against all persons who shall, within the cognizance of the courts of the United States, violate the law of nations with respect to the powers at war or any of them.” This proclamation was followed by a more vigorous one of March 24, 1793,25 which specified various offences against neutrality which would be regarded as criminal, and especially "required all courts, magistrates and other officers * * to exert the power in them severally vested to prevent and suppress such unlawful assemblages and proceedings and to bring to condign punishment those who may have been guilty thereof."

The contents of these proclamations indicate the belief that breaches of neutrality by individuals could be punished without specific statute, and this view was upheld by the court in the case of Gideon Henfield. Henfield, who was accused of serving on board a French vessel, was brought to trial in the summer of 1793 after Washington's first proclamation and before his second. The United States Circuit court of Pennsylvania, composed of Justices Wilson, Iredell, and Peters, charged the jury to find Henfield guilty of breaches of neutrality because he had violated the law of nations which was part of the common law, be

25 Proclamation, March 24, 1794, II stat. 753; Richardson's Messages, 1:157. Neutrality proclamations of similar character have been issued by the president in succeeding wars in which the United States has been neutral. Franco-Prussian War, (Aug. 22, Nov. 8, 1870, 16 stat. 1132; Richardson's Messages, 7; 86; 89): Russo-Japanese War, (Feb. II, 1904, 33 stat. 2332): Turco-Italian War, (Oct. 24, 1911, 37 stat. 1719): Great War, (Aug. 4-27, 1914, Supp. Am. Jour. Int. Law, 9;1 Jan. 1915). On a number of occasions neutrality proclamations have been issued calling attention to a state of insurrection or insurgency, when belligerency has not been recognized, and to the provisions of the neutrality laws applicable in such circumstances. Revolt of Spanish colonies, (Nov. 27, 1806; Sept. 1, 1815, Richardson's Messages, 1;404, 561): Canadian Insurrection, (Jan. 5; Nov. 21, 1838; Sept. 25, 1841, II stat. 784-786; Richardson's Messages, 3;481-482, 4;72): Cuban Filibusters, (Aug. II, 1849; April 25, 1851 ; May 31, 1855, II stat. 787; Richardson's Messages, 5:7,111,272): Mexican Filibusters, (Oct. 22, 1851; Jan. 18, 1854, Richardson's Messages, 5;112,271): Nicaraguan Filibusters, (Dec. 8, 1855; Oct. 30, 1858, II stat. 789,798; Richardson's Messages, 5;388,496): Fenian Invasion of Canada, (June 1866; May 24, 1870, 14 stat. 813; 16 stat. 1132; Richardson's Messages, 6;433 : 7;85) : Cuban Revolution, (Oct. 12, 1870; June 12, 1895; July 27, 1896, 16 stat. 1136; 29 stat. 870,881; Richardson's Messages, 7;91, 9;591, 694); Insurgency in Dominican Republic, (Oct. 14, 1905, 34 stat. 3183): Mexican Revolution, (Mch. 2, 12, 1912, 37 stat. 1732-1733).

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