presumed of any government that surreptitious enlistments for its military service have been carried on in a foreign country with its will, unless that will manifestly appear, or the verified fact shall overcome the contrary presumption. Meanwhile, although the foreign agents who carry on surreptitious recruiting in a country perpetuate this man-stealing by their own sovereign's authority, they are not the less amenable to animadversion, for they ought not to have obeyed commands of [187] their sovereign which were against natural right, since malefaction *does not cease to be such because perpetuated by command of a superior, nor will the excuse of unlawful obedience to another convert into right what is acquired by malefaction.

Since a government inflicts national wrong on another, if by its order or permission the personal or material instruments of war be stolen from the latter for belligerent use, such acts are a just cause of war.

*

It is not intended to say that whenever the instruments of war, personal or material, have been surreptitiously procured for belligerent use, either by command or by consent of the sovereign in whose behalf it is done, therefore the injured government must of necessity declare war, but only that it may well be received among the justificatory causes of war.

Nor is the cause of war removed, if the guilty agents of the crime shall happen to have been punished. They indeed have suffered the just penalty of the crime they committed but that does not satisfy the wrong done to the national sovereignty.(Ibid., s. 758, 759.)

The same ideas are found in Vattel; but he need not be quoted at length, as he does but copy or abridge Wolff.

Kluber says:

[188] *A state entirely neutral has the right to exact, even by force, if necessary, that belligerent powers do not use its neutral territory for the purposes of war; that they do not take there arms, munitions of war, and provisions and other immediate requirements of war, for their armies; that they do not make there any military armaments, either enrollments or collections of troops; that none of their troops, armed or • unarmed, pass through, &c., &c.; that they exercise there no act of hostility against the persons or property of the subjects of the hostile state; that they do not occupy it militarily, or make it the theater of war.-(Droit des Gens moderne de l'Europe, s. 585.) G. F. de Martens says:

While, in case of rupture between two nations, a neutral state preserves the full enjoyment of its territorial rights, it can, in the absence of treaties, prohibit during the war, as in time of peace, any passage or sojourn of foreign troops, and much more forbid the occupation of its fortresses, the recruiting, mustering, and exercising troops; and it may use force against those who shall attempt to violate the prohibition.-(Précis du Droit des Gens, s. 30.)

Galiani says:

[189] All governments are accustomed to prohibit, under capital penalty, any foreigner to make military engagements or recruits within their territory; in doing which they do no more than to sustain and defend a natural right, and one inherent in every sovereignty.—(Dei Doveri dé Principi Neutrali, p. 325.)

The sovereign, who leaves his subjects at liberty to engage themselves in the service of a foreign belligerent, will not therein be wanting to his neutral duties, provided it has been customary with his nation; if it has been usual in time of peace; if it accords with the physical and political condition of the country; if, in fine, he practices indifference and impartiality, not denying to one belligerent what he concedes to the other. But, if a sovereign has not been accustomed to allow his subjects to enlist in the military or naval service of other governments, it may well be doubted whether he may, for the first time, do it on the occurrence of war between two states, each of which is in amity with him. I am not prepared to say that in doing so he gives equality of advantage and facilities to both; there might be inequality in the need of the

belligerents; for, perhaps, one of them, suffering from deficiency of men, would derive [190] precious and powerful succor from such permission, while to the other it would be useless and superfluous. In my opinion, therefore, this question comes within the general rule of essential neutral duties; that is, to continue in the anterior condition, it being lawful to persevere in what has been usual, but unlawful to innovate.— (Ibid., p. 329.)

Hautefeuille says:

The duties of belligerents may be summed up in very few words. The belligerent ought to abstain from the employment of all such indirect means to molest his enemy as, in the accomplishment of their object, would first injuriously affect a neutral

nation. He ought to respect, in the most complete and absolute manner, the independence and sovereignty of nations at peace; in a word, he ought to treat them in the same manner as if the most profound peace continued to prevail. Those nations, in fact, are at peace with him, fulfilling strictly their duties of neutrality; they have the right to enjoy the advantages of their position, and to be exempt from all the evils of war; the duty of the belligerent is to abstain from the infringement of this right. Thus, neutral territory ought to be held sacred and inviolable by nations at war; these last ought not, on any pretext, nor in any manner, to make use of such territory to [191] subserve their purposes of hostilities, directly or indirectly. The passage of armed troops, the levying of soldiers, &c., &c., without the consent of the sovereign, would constitute an offense against the sovereignty of the neutral, and a violation of the duty of the belligerent.-(Droits et Devoirs des Nations Neutres, tom. i, 312, 313.)

As to the territory of neutral nations, the occurrence of hostilities makes no change nor modification of their rights; they remain inviolable as in time of peace. Their territory ought, then, to be sheltered from all enterprises of belligerents, of whatever nature they may be. The consequences of war ought never to be felt by them directly; that is to say, no act of hostility should be committed against them, under any pretext.

Belligerent nations, in this respect, have only the rights they possessed in time of peace, because war never injuriously affects nations at peace. Belligerents cannot, then, in any case, without the permission of the sovereign, use neutral territory, I do not say directly, for the operations of war; but cannot even make use of it for any advantage whatever, to the prejudice of their enemy. This permission cannot be granted to them by the neutral without violating his duties.

[192] The principle of the inviolability of the territory being admitted, the conclnsion, as absolute as the principle itself, follows: that a belligerent has no right to use neutral territory, in any manner whatever, without the permission of the neutral nation, sovereign of such territory; and cannot, therefore, levy troops there, and march armies through it, &c., without this permission.

The neutral has the incontestable right to resist every attempt the belligerent may make to use his territory; to oppose it by all the means in his power, and even by force of arms, in the same manner as a citizen has the right to defend his property by all the means placed at his disposal by the law to which he is subject.-(Ibid., tom. ii, pp. 48, 49.)

By Riquelme:

It is also a violation of the rights of neutrality to entice enlistments in the neutral state, without the authorization of its government; because the right to levy troops is inherent in the national sovereignty. But, on the other hand, a government which grants this authority ceases to be neutral, because it supplies to one of the belligerents the principal element of war.— —(Derecho Publico Internacional, tom. i, p. 144.)

Citations to the same effect might be multiplied from the works [193] of the jurists of *continental Europe.

I do not perceive that this doctrine is explicitly produced in any of the books of international law published during the last few years in Great Britain. Possibly their silence on this point may be caused by the policy of their country, which, under the kings of the house of Hanover, has frequently relied upon foreign recruits in time of war. However this may be, some of the English works referred to recognize the right of every sovereignty to the supreme use of its own territory and resources, (Wildman's International Law, vol. i, p. 64,) but without adverting to the present logical consequences of this right. At least, one of them discusses fully the collateral question whether a state loses its neutrality by permitting foreign levies, and concludes, properly, that if it be permitted to one it should be permitted to each of the respective belligerent powers.-(Manning's Law of Nations, vol. iii, ch. i.) In this connection the same accredited English writer considers and confutes the assumption, crudely and erroneously taken up in Great Britain, that some doctrine to the contrary of this is to be found in Vattel. (Pendergast, Army Law, p. 44; idem., Navy Law, vol. i, p. [194] *The truth is that Vattel, as already stated, maintains unequiv

131.)

ocally the doctrine that there can be no foreign recruiting in a country without the consent of its government. He says expressly

that all such unlicensed foreign recruiters are kidnapers, and justly "punished with the utmost severity in every well-regulated state."(Droit des Gens., liv. iii, ch. 2, s. 15.) Nay, he admits the general rule that the neutral should not furnish assistance to either belligerent.(Ibid., liv. iii, ch. 7, s. 110.) But Vattel was a Swiss, of Neufchâtel, and he labored, in this matter, under the patriotic necessity of extenuating, as he best might, the ignominious capitulations of the Swiss cantons for the supply of mercenary troops to the other states of Europe. But, in this case, he has enough of conscientiousness to say that there must be strict impartiality, or at least contracts of service anterior to the

war.

Mr. Manning, in an elaborate review of the whole subject, concludes thus:

Foreign levies may not be allowed to one belligerent while refused to his antagonist, consistently with the duties of neutrality. When treaties, antecedent to war, permit such exclusive privilege, then no complaint of breach of neutrality can be maintained by the excluded party. But when no antecedent treaty exists such [195] a permission would be a violation of neutrality, the principles of which demand

the strictest abstinence from assistance to either party, and, of course, will not admit that exclusive privileges, in so important a particular, should be granted to one belligerent. Nor have the customs of Europe, derived from the practices of the middle ages, established any usage that prevents this question from being settled in accordance with the dictates of reason, or, in other words, with the law of nature.—(Manning, ut supra, p. 180.)

Mr. Manning's reasoning is conclusive so far as it goes. And the imperfection of other English law-books in this respect is of no account, as against the general authority of the expounders of international law in all the rest of Christendom.

Misconstruction has also been placed on the fact that Bynkershoek maintains the right of private or voluntary expatriation, even for the purpose of foreign military service. But he does not express nor countenance the thought that a foreign belligerent may recruit soldiers in a neutral country without the consent of its sovereign. On the contrary,

he exhibits in full the legislation of the United Provinces, accord[196] ing to which it was a capital offense to make *enlistments in the country without the consent of the States-General.-(Quæst. Jur. Publici, lib. i, c. 22.)

Besides, Great Britain has, in her own legislation, sanctioned and adopted the rule of public law, by enacting that if any person whatever, within the United Kingdom, or in any part of the dominions of Great Britain, shall hire, engage, retain, or procure, or shall attempt or endeavor to hire, retain, engage, or procure any person whatever to enlist, as an officer, soldier, sailor, or marine, either on land or sea service, for or under or in aid of any foreign prince or government, or to go or to agree to go or embark from any place in the British dominions for the purpose or with the intent to be so enlisted, entered, or engaged, as aforesaid, every person so offending shall be deemed guilty of a misdemeanor, punishable by fine or imprisonment, at the discretion of the court having jurisdiction of the act.-(Act of 59 Geo. III, ch. 69.)

We, in the United States, aeting in the sense of natural right, and following the rules of public law as explained by the jurists of continental Europe, asserted and established this doctrine at a very early

period, in opposition to the undertaking of the French government, [197] through its minister, M. Genet, to man or equip cruisers within the United States.-(Mr. Jefferson to M. Genet, June 17, 1793. American State Papers, Foreign Affairs, vol. i, p. 154.)

And our judicial text-books are full and explicit on the same point.(Wheaton, by Lawrence, p. 498; Kent's Com., lec. 6.)

It is obvious to the most superficial reflection, that no distinction of principle exists in the levy of a military force in the neutral country, as between the land and sea service; and if Great Britain may raise within the United States volunteers for her land service, so Russia may raise them for her marine service, that is, may fit out privateers in our ports; and, indeed, if we grant or permit the former privilege to Great Britain, we must, in like manner, in order to be impartially neutral, concede the latter privilege to Russia.

And it is equally obvious that foreign recruiting must not be forbid den or permitted under the influence of any assumed national sympathies or antipathies. Individual or national preferences are quite immaterial in such a question. The United States cannot, either lawfully

or honorably, practice a simulated neutrality; nor can a dissem [198] bled alliance be claimed or *expected from us, either by Great Britain or by Russia.

From the well-established rules and principles of law, then, it is plain to conclude:

1. The acts of enlistment in question are contrary to the municipal law of this country, and indictable as a high misdemeanor.

2. Those acts, if permitted to one belligerent, must be permitted to all, in observance of impartial neutrality.

3. Being against law in the United States, and therefore not permitted to Great Britain, if undertaken by her as a government, they afford just cause of war, being direct national violation of the territorial sovereignty of one nation by another.

4. Whatever agents of the British government, whether official or unofficial, acting voluntarily or by orders, have participated in such acts, are not only guilty of a criminal infraction of the statute law, but, also, in the language of Vattel, of violating one of the most sacred rights of the nation.

I presume that if, in the present case, the British minister imagines that the acts performed under his direction were not contrary to the

municipal law, it must be on the ground that the recruits were [199] not completely enlisted in the United States; that is, did not

here in all form enter the military service of Great Britain. That assumption is altogether fallacious. The statute is express, that if any person shall hire or retain another person to go beyond the limits or jurisdiction of the United States, with intent to be enlisted or entered into the service of any foreign state, he shall be deemed guilty of the defined misdemeanor.

It is possible, also, that he may have supposed that a solemn contract of hiring in the United States is necessary to constitute the offense. That would be mere delusion. The words of the statute are "hire or retain." It is true, our act of Congress does not expressly say, as the British act of Parliament does, "whether any enlistment money, pay, or reward shall have been given and received or not," (Act 59 Geo. III, ch. 69, s. 2;) nor was it necessary to insert these words. A party may be retained by verbal promise, or by invitation, for a decared or known purpose. If such a statute could be evaded or set at naught by elaborate contrivances to engage without enlisting, to retain without hiring, to invite without recruiting, to pay recruiting money in fact, but under another name of board, passage-money, expenses, or the like, it [200] would be idle to pass acts of Congress for the punishment of this or any other offence.

However this may be, and if such were the thought of the British government, it has not been succesfully carried out; for, on the evi

dence before me, including the general instructions of the British minister and his direct correspondence with recruiting-officers in the United States and others, my opinion is positive that the parties have made themselves amenable to the penalties of the statute, and may be convicted before any competent court of the United States.

It is further to be observed, in conclusion of this branch of the subject, that, whether the acts of the British minister and his agents, in recruiting troops within the United States, do or do not come within the technical provisions of the acts of Congress, is altogether immaterial to international right, as between this Government and that of Great Britain. If, by ingenious evasions of the letter of a penal statute intended only for private malefactors, the British government should, nevertheless, levy troops here, the fact of the statute being thus defeated and trampled under foot would serve only to augment the public

wrong.

[201] *Suppose, for instance, that the British government shall have said to its officers, civil or military, in the British North American Provinces, and to its diplomatic or cousular agents in the United States, "you will proceed to raise so many men in the United States; but remember that to do so is forbidden by the municipal law of that country, and is indictable as a misdemeanor; you will, therefore, take care to proceed cunningly in this, so as not to incur the penalties of the statute." Such instructions, while they might have the effect of raising the troops, as desired by the British government, without its agents incurring the penalties of the statute, would but constitute a more flagrant and aggravated violation of the national dignity and the sovereign rights of the United States.

Suppose a foreign government, by circular instructions to its diplo matic and consular agents in the United States, instructs them to organize a system for evading the revenue laws of the country. In such case would the international injury be any less if the contemplated evasions should be successfully perpetrated? Or, if the government of

an adjoining country send hither agents, under the immediate [202] superintendence of its minister, to *counterfeit the coin, circulate

base coin, steal, rob, or commit any other offense, with depots on our frontier to facilitate the commission of the crime and utilize its proceeds: Should we be satisfied with the reply, that in all this our laws had been successfully evaded by the careful instructions and ingenious devices of the foreign government and its public functionaries in the United States?

Beyond all this, it would seem that the legal advisers of the British government conceive that the official agents of one nation may rightfully do, within the territory of another, anything which is not by the domestic statutes of the latter declared to be a municipal offense, indictable as such before the courts of law. If such an idea be entertained by the British government or its law-officers, certainly it is a mere delusion, possible to exist only in minds shut up in the narrow sphere of the technical common law of England.

How insular that law is, and how defective the knowledge it imparts even for the purpose of domestic, and still more of foreign, administration, the jurists of England themselves have too frequently had cause to observe. (See, ex. gr., Phillimore's Internat. Law, pref., p. xi; Chitty's Prac., pref., p. v, note.)

[203] Nothing can be plainer than the position that the objects of the municipal law in such a case are domestic only. In constitutional governments it confers on the executive in the particular matter powers