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founded in the universal law of nations. It is declared to be a misdemeanor for any person, within the jurisdiction of the United States, to increase or augment the force of any armed vessel, belonging to one foreign power at war with another power, with whom we are at peace; or to set on foot or prepare any military expedition, against the territory of any foreign nation with whom we are at peace; or to hire or enlist troops or seamen, for foreign military or naval service; or to be concerned in fitting out any vessel, to cruise, or commit hostilities in foreign service, against a nation at peace with us; and the vessel, in this latter case, is made subject to forfeiture. The President of the United States is also authorized to employ force to compel any foreign vessel to depart, which, by the law of nations, or by treaty, ought not to remain within the United States, and to employ the public force generally, in enforcing the observance of the duties of neutrality prescribed by law. In the case of the Santissima Trinidad, it was decided, that captures made by a vessel so illegally fitted out, whether a public or private armed ship, were torts, and that the original owner was entitled to restitution, if the property was brought within our jurisdiction; but that an illegal outfit did not affect a capture made after the cruise to which the outfit had been applied had terminated. The offence was deposited with the voyage, and the delictum ended with the termination of the cruise.
Though a belligerent vessel may not enter within neutral Prizes in noujurisdiction, for hostile purposes, she may, consistently with a state of neutrality, until prohibited by the neutral power, bring her prize into a neutral port, and sell it. The neutral power is, however, at liberty to refuse this privilege,
a Acts of Congress, of 5th June, 1794, and 20th April, 1818, ch. 83.
b 7 Wheaton, 283.
e Bynk. b. 1. c. 15. Vattel, b. 3. c. 7. sec. 132. Martens, b. 8. c. 6. sec. 6. Hopner v. Appleby, 5 Mason, 77.
provided the refusal be made, as the privilege ought to be
property in a But neutral ships do not afford protection to enemy's property, and it may be seized if found on board of a neutral vessel, beyond the limits of the neutral jurisdiction. This is a clear and well-settled principle of the law of nations.
It was formerly a question, whether the neutral
a Instructions to the American Ministers to France, July 15th, 1797. Mr. Pickering's Letters to Mr. Adet, May 24th, and November 15th, 1796. His Letter to Mr. Pinckney, January 16th, 1797.
b Valin's Com, tom. 2. 272.
c Mr. Jefferson's Letter to Mr. Hammond, Sept. 9th, 1793. Instructions to the American Commissioners to France, July 15th, 1797. d Grotius, 1. 3. c. 6. sec. 6. Heinec. de Nav, ob. vect. c. 2. sec. 9.
ship conveying enemy's property, was not liable to confiscation for that cause. This was the old law of France, in cases in which the master of the vessel knowingly took on board enemy's property; but Bynkershoeck truly observes, that the master's knowledge is immaterial in this case, and that the rule in the Roman law, making the vessel liable for the fraudulent act of the master, was a mere fiscal regulation, and did not apply; and for the neutral to carry enemy's goods is not unlawful, like smuggling, and does not affect the neutral ship. If there be nothing unfair in the conduct of the neutral master, he will even be entitled to his reasonable demurrage, and his freight for the carriage of the goods, though he has not carried them to the place of destination. They are said to be seized and condemned, not ex delicto, but only ex re. The capture of them by the enemy, is a delivery to the person, who, by the rights of war, was substituted for the owner. Bynkershoeck thinks the master is not entitled to freight, because the goods were not carried to the port of destination, though he admits that the Dutch lawyers, and the consolato, give freight. But the allowance of freight in that case has been the uniform practice of the English admiralty for near two centuries past, except when there was some circumstance of mala fides, or a departure from a strictly proper neutral conduct. The freight is paid, not pro rata, but in toto, because capture is considered as delivery, and the captor pays the whole freight, because he represents his enemy, by possessing himself of the enemy's goods
Bynk. Q. J. P. c. 14. Fattel, b. 3. c. 7. sec. 115. Answer in 1753, to the Prussian Memorial. Consulat de la Mer, par Boucher, tom 2. c. 276. sec. 1004.
a Vattel, b. 3. c. 7. sec. 115.
b B. 1. ch. 14.
c Jenkinson's Discourse in 1757, p. 13. The Atlas, 3 Rob. 304. note. Answer to the Prussian Memorial, 1753.
jure belli, and he interrupts the actual delivery to the consignee.
The right to take enemy's property on board a neutral ship, has been much contested by particular nations, whose interests it strongly opposed. This was the case with the Dutch in the war of 1756, and Mr. Jenkinson (afterwards Earl of Liverpool) published, in 1757, a discourse, very full and satisfactory, on the ground of authority and usage, in favour of the legality of the right, when no treaty intervened to control it The rule has been steadily maintained by Great Britain. In France it has been fluctuating. The ordinance of the marine of 1681, asserted the ancient and severe rule that the neutral ship, having on board enemy's property, was subject to confiscation. The same rule was enforced by the arrets of 1692 and 1704, and relaxed by those of 1744 and 1778. In 1780, the Empress of Russia proclaimed the principles of the Baltic code of neutrality, and declared she would maintain them by force of arms. One of the articles of that code was, that" all effects belonging to the subjects of the belligerent powers, should be looked upon as free on board of neutral ships, except only such goods as were contraband." The principal powers of Europe, as Sweden, Denmark, Prussia, Germany, Holland, France, Spain, Portugal, and Naples, and also these United States, acceded to the Russian principles of neutrality. But the want of the consent of a power of such decided maritime superiority as that of Great Britain, was an insuperable obstacle to the success of the Baltic conventional law of neutrality; and it was soon abandoned, as not being sanctioned by the existing law of nations, in every case in which the doctrines of that code
a The Copenhagen, 1 Rob. 289.
b Valin's Com. 1. 3. tit. 9. des Prizes, art. 7.
c N. A. Reg. for 1780, tit. Public Papers, p. 113-120. Martens' Summary, 327. edit. Phil. Journals of Congress, vol. 7. p. 68. 185.
did not rest upon positive compact. During the whole course of the wars growing out of the French revolution, the government of the United States admitted the English rule to be valid, as the true and settled doctrine of international law; and that enemy's property was liable to seizure on board of neutral ships, and to be confiscated as prize of war. It has, however, been very usual in commercial treaties, to stipulate, that free ships should make free goods, contraband of war always excepted; but such stipulations are to be considered as resting on conventional law merely, and as exceptions to the operation of the general rule, which every nation not a party to the stipulation is at perfect liberty to exact or surrender. The Ottoman Porte was the first power to abandon the ancient rule, and she stipulated, in her treaty with France in 1604, that free ships should make free goods, and she afterwards consented to the same provision in her treaty with Holland in 1612; and according to Azuni, Turkey has, at all times, on international questions, given an example of moderation to the more civilized powers of Europe.
The effort made by the Baltic powers, in 1801, to recall and enforce the doctrines of the armed neutrality in 1780, was met, and promptly overpowered, and the confederacy dissolved, by the naval power of England. Russia gave up the point, and by her convention with England of the 17th of June, 1801, expressly agreed, that enemy's property was not to be protected on board of neutral ships. The rule has since been very generally acquiesced in; and it was expressly recognised in the Austrian ordinance of neutrality, published at Vienna the 7th of August, 1803. Its reason
a Mr. Jefferson's Letter to M. Genet, July 24th, 1793. Mr. Pickering's Letter to Mr. Pinckney, January 16th, 1797. Letter of Messrs. Pinckney, Marshall, and Gerry, to the French Government, January 27th, 1798.
b Maritime Law of Europe, vol. 2. 163.