power at war with another power, with whom we are at peace; or to begin, set on foot, or provide or prepare the means for any military expedition or enterprise, against the territory of any foreign prince or State, or of any colony, district, or people, with whom we are at peace. And any vessel or vessels fitted out for such purpose are made subject to forfeiture. The President of the United States is also authorised 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.'

§ 20. The example of the United States was followed by Great Britain, and the Act of 59 George III., chap. 99, commonly called the Foreign Enlistment Act, was passed,2 sup

1U. S. Statutes at Large, vol. i. p. 381 ; vol. iii. p. 447 ; Dunlop, Laws of the United States, pp. 580-583; the 'Gran Para,' 7 Wheaton R., 489; the United States v. Quincy, 6 Peters R., 445-467; the 'Alerta,' 9 Cranch. R., 364; the Estrella,' 4 Wheaton R., 309; Legare, Opinions U. S. Att'ys Genl., vol. iii. pp. 738, 741; Johnson, id., vol. v. p. 92.

Upon the breaking out of war between the United States and the Republic of Mexico, in 1845, the province or department of Yucatan, belonging to Mexico, having assumed a flag of her own, and having manifested a determination to remain neutral, a special order was issued by the President of the United States exempting her citizens from the operation of the laws of war. Under such circumstances, no citizen or resident of Yucatan could with impunity violate her neutrality, by assuming, for the purposes of trade, the flag of the enemy.-United States v. the 'Telegrafo,' 1 Newb. 383.

2

This is repealed, but the provisions contained in it are re-enacted and amplified in the Foreign Enlistment Act of 1870, 33 & 34 Vic. c. 90.

By Order in Council, August 30, 1862, the British Foreign Enlistment Act was suspended so far as to enable Captain Osborn and Mr. Lay to enter the service of the Emperor of China, to fit out, equip, purchase, and acquire ships or vessels of war for the use of the said Emperor, and to engage and enlist British subjects to enter the military and naval service of the said Emperor. This permission was to remain in force till September 1, 1864. This licence, with the same limitation, was extended to all military officers in Her Majesty's service.

The last American Civil War introduced a new series of cases in which the then Foreign Enlistment Act was called into operation; they were-The Creto,' tried at Nassau, released August, 1862; the 'Alexandra,' tried in England; the ironclads El Toussoon' and 'Mounassir;' the 'Tornado;' the cases of the 'Alabama,' 'Shenandoah,' and 'Georgia.' There were five prosecutions for enlisting men for the Confederate navy. For representations addressed to the British Government by Mr. Adams during the last American Civil War, see Memorandum annexed to Lord Russell's letter to Mr. Adams, November 3, 1865.-Parl. Pap. North Amer. No. 1, 1866, p. 139.

The property in a prize of war may pass to the captors-without such prize being taken into a port belonging to the country of the captors, or

а

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a

plying the defect of former laws, and extending the probibition to those who entered the service of unacknowledged, as well as acknowledged, States. The previous statutes of 9 and 29 George II., which were enacted for the purpose of preventing the formation of Jacobite armies in France and Spain, annexed capital punishment as for a felony to the offence of entering the service of a foreign State. The Foreign Enlistment Act of 1819 provided a less severe punishment, and introduced after the words 'King, Prince, State, or Potentate, the words, colony or district assuming the powers of governThis Act was thoroughly discussed in Parliament in

1823, on a motion for its repeal.

§ 21. It is not only the right of the neutral State to protect the property of the belligerents when within the neutral jurisdiction, but it is a part of the duty of neutrality to defend such property while under neutral protection, and to punish any and every offence against the rights of neutrality, even, if necessary, by resort to force. Livy relates that Syphax enforced peace between the Carthaginian and Roman gallies while lying in a neutral port. The Venetians prevented the Greeks from attacking the Turks in the neutral port of Chalcocondylas. The same may be said of the Venetians and Turks at Tunis, of the Pisans and Genoese in Sicily, and numerous other cases mentioned in history. The Dutch East India fleet having put into Bergen, in Norway, in 1666, to avoid the English, were attacked by them; but the Government of Bergen fired on the assailants, and the court of Denmark complained to the English Government of the violation of its sovereignity. England having declared her neutrality between Don Miguel and Donna Maria, in 1828, sent a naval force to intercept the Portuguese armament in its destination to the Island Terceira, because it had been fitted out in disguise, and had sailed from Plymouth. It is

being condemned by a prize court. A prize of war (a merchantman), with a prize crew on board, is not a ship of war. A neutral steam-tug towing such a vessel-from neutral waters-to the waters of her captors, in the ordinary course of her employment, does not complete the capture, and is not employed in the naval service of a belligerent within the meaning of the Foreign Enlistment Act, 1870, s. 8, subs. 4.-The 'Gauntlet,' 1 Aspinall's Mar. Law Cas. 86. See also ex parte Ferguson and Hutchinson, ibid. 8; the Heinrich and Maria,' 4 Rob. 43; The Polka,' 1 Spinks,

6

a well-established principle of the law of nations that if the property of belligerents, when within the neutral jurisdiction, be attacked, or any capture made, the neutral is bound to redress the injury and effect restitution. In the year 1793 the British ship 'Grange' was captured in Delaware bay by a French frigate, and, upon due complaint, the American Government caused the British ship to be promptly restored. So, in the case of the 'Anna,' captured by a British cruiser in 1805, near the mouth of the Mississippi, and within the jurisdiction of the United States, the British Court of Admiralty not only restored the captured property, but fully asserted and vindicated the sanctity of neutral territory by a decree of costs and damages against the captor. If a neutral State neglects to make such restitution, and to enforce the sanctity of its territory, but tamely submits to the outrages of one of the belligerents, it forfeits the immunities of its neutral character with respect to the other, and may be treated by it as an enemy.1

1 Phillimore, On Int. Law, vol. iii. §§ 155–157; the 'Vrow Anna Catharina,' 5 Rob. 15; the ‘Anna,' 5 Rob. 348; Heffter, Droit International, §§ 146-150; Bello, Droit Internacional, pt. ii. cap. vii. § 6; Riquelme, Derecho Pub. Int., lib. i. tit. ii. cap. xvii.

DECLARATION issued by the Commander-in-Chief of the Military District of Odessa, and published in the London Gazette by order of the British Foreign Office, May 17, 1877.

(Translation.)

'The Commander of the troops of the Military District of Odessa, Chief of the Coast Defences of the District, General Aide-de-camp Séméka, has the honour of notifying that, in consequence of the laying of torpedoes, ships of neutral States, requested to withdraw in view of a bombardment, cannot do so except on condition of being piloted by Russian officers through the passages left between the torpedoes; but as this operation, carried out in the face of the enemy, might point out to them the position of these passages and enable them to make use of them, thereby depriving the town of its most important line of defence, General Aide-de-camp Séméka, in view of a state of affairs new in maritime warfare, and consequently not foreseen by international law, has the honour to request the enemy's ships of war to withdraw out of sight for the time necessary for the removal of neutral ships (namely, for hours), warning them that if they do not agree to this demand, neutral ships will not be allowed out, and the Imperial Russian Government declines all responsibility for the consequences.'

NOTICE sent to Her Britannic Majesty's Consul at Taganrog by the Governor of that place, with the assurance that every assistance would be afforded to foreign vessels of friendly neutral powers on their passage at the respective ports, in order that trade might not be impeded, published in the London Gazette by order of the British Foreign Office, May 17, 1877

§ 22. Although it is the duty of a belligerent State to make restitution of the property captured within the territorial jurisdiction of a neutral State, yet it is a technical rule of the prize court to restore to the individual claimant, in such a case, only on the application of the neutral Government whose territory was violated in effecting the capture. This rule is founded upon the principle, that the neutral State alone hast been injured by the capture, and that the hostile claimant has no right to appear, for the purpose of suggesting the invalidity of the capture. He must look to the neutral government for redress of the violation of the right of asylum, and that government is bound to effect a restitution, or procure indemnity for the injury suffered. This claim is usually preferred by the ambassador of the neutral State in the captor's country, to the prize court before which the captured property is brought for adjudication.'

(Translation.)

'Approved by the Commander of the Odessa Military Department,

April 12, 1877.

'From the time of the declaration of war, 12/24 April 1877, the entrance of and the departure of vessels from the port of Odessa, from Liman of the Dnieper, and from the Boug, the Straits of Kertch, and the Bay of Sebastopol, are only permitted subject to the following conditions, which are not provided for by maritime international law, but which must necessarily arise, now that harbours are protected by barring them with mines, the passage through which is kept absolutely secret :

1. Every vessel, on arriving, must stop outside the line of mines. Russian officers with a crew will go and meet her; they will assume command of the said vessel, and navigate her in the harbour, after having satisfied themselves that the ship's papers are in regular order.

2. The captain of the said vessel shall engage, in writing, on behalf of himself and his crew and passengers, that, while passing through the line of torpedoes, no person shall remain on the bridge, or watch through port-holes or other openings, the course followed by the ship.

'3. The same rule shall be enforced when merchantmen quit the harbour, that is to say, a Russian officer and crew shall, in conformity with Articles 1 and 2, take command of the said vessels.

4. If a man of war should make its appearance at a spot whence it would be possible to watch the entry and departure of vessels, the Russian authorities will insist upon its retiring to a certain distance during a period of time sufficient to navigate a vessel in or out. Until this formality is complied with, no vessel will be allowed to enter or leave.'

This declaration and notice are of such recent date that time has not permitted any legal or official opinion to emanate on the legality of the same. However, it is submitted that the Russian Government has no right by the law of nations to require the voluntary withdrawal of a hostile man of war, nor in the case of the non-withdrawal of the same, to assume immunity from all responsibility.

1 The 'Eutrusco,' 3 Rob. 31, note; the 'Anne,' 3 Wheaton R., 447

§ 23. But if the property captured in violation of neutral rights comes into the possession of the neutral State, it is the right and duty of such State to restore it to its original owners. This restitution is generally made through the agency of the Courts of Admiralty and maritime jurisdiction. Traces of the exercise of such a jurisdiction are found in the history of English jurisprudence as early as the reigns of Charles II. and James II., and are now matters of ordinary occurrence in English and American Courts of Admiralty. Such restitution is not confined to captures within neutral jurisdiction, but extends to all captures made in violation of neutral rights, such as by vessels which had been armed and equipped, or had received military munitions, or had enlisted men, or in any other way had violated the sanctity of neutral territorial jurisdiction.1

24. The power and duty of the United States to restore captures made in violation of our neutral rights and brought into American ports, have never been matters of question; but, in the constitutional arrangement of the different authorities of the American federal union, doubts were at first entertained, whether it belonged to the executive government, or to the judiciary, to perform the duty of inquiry into captures made in violation of American sovereignty, and of making restitution to the injured party. But it has long

the 'Gen. Armstrong,' Ex. Doc. No. 50, H. R. 32nd Cong., 1st Sess.; No. 24, Senate, 2nd Sess.; Revue Etr. et Fr., tome vii. p. 751.

No private person can interpose in a case of prize and make claim for the restoration of the captured property, on the ground that the capture was made within neutral waters. Whatever claim is made must be presented by the neutral nation, whose rights have been infringed. Even a consul, by virtue of his office merely, cannot interpose.-The 'Lilla,' 2 Sprague, 177.

During the war, in 1812, French frigates plundered not only English merchant vessels, but also those of Spain, Portugal, and of the United States.-James, Nav. Hist. vol. vi. 48.

1 Wheaton, Elem. Int. Law, pt. iv. ch. iii. § 12; Life and Works of Sir L. Jenkins, vol. ii. p. 727; Phillimore, On Int. Law, vol. iii. § 158; Riquelme, Derecho Pub. Int., lib. i. tit. ii. cap. xvii.

A neutral ship captured on her return from a whaling voyage, and proceeded against under the Order in Council respecting fishing voyages from and to ports from which the British flag had been excluded, was decreed to be restored, the voyage having been commenced before the Order in Council was issued, and the ship having received no notice thereof.—The 'Johan,' Edwards, 275.

A British subject cannot come before a Court of Prize to claim property taken in a course of trade forbidden by the laws of his country. Condemnation in such a case.-The 'Etrusca,' 4 Rob., 462, n.