on the basis of the status quo ante bellum, leaving the questions of maritime law which led to the war still unsettled. mencement of the war in Europe to that date, was 2,273; of these, fortythree were passengers.

James, referring to this subject in his Naval History in 1826, says that the crew of a vessel, armed or unarmed, sailing under the flag of the United States, usually consists of one or more of the following classes: 1, native American citizens; 2, American citizens, wherever born, who were such at the definitive treaty of peace in 1783; 3, foreigners in general, who may or may not have become citizens of America subsequently to the treaty in question; 4, deserters from the British army or navy, whether natives of Britain or of any other country. He considers that to the first class Great Britain cannot have the shadow of a right; and from such of the second as were British born she barred herself by the treaty acknowledging the independence of the revolted colonies. Of the third class, the only portion which England can have any pretension to seize are the subjects of the Power or Powers with whom she may be at war, and her own native subjects. With respect to the former, the very act of entering on board a neutral implies that the foreigner has thrown off his belligerent character; he is a non-combatant of the most unequivocal description, and, as such, entitled to exemption from seizure. A passenger, especially if a military man, might be an exception. When, by the maritime ascendency of England, France could no longer trade for herself, America proffered her services, as a neutral, to trade for her; and American merchants and their agents, in the gains that flowed in, soon found a compensation for all the perjury and fraud necessary to cheat the former out of her belligerent rights. The high commercial importance of the United States, thus acquired, coupled with a similarity in language, and, to a superficial observer, a resemblance in person, between the natives of America and Great Britain, has occasioned the former to be the principal, if not the only, sufferers by the exercise of the right of search. Chiefly indebted for their growth and prosperity to emigration from Europe, the United States hold out every allurement to foreigners, particularly to British seamen, whom, by a process peculiar to themselves, they can naturalise as quickly as a dollar can exchange masters, and a blank form, ready signed and sworn to, can be filled up. It is the knowledge of this fact that makes British naval officers, when searching for deserters from their service, so harsh in their scrutiny, and so sceptical of American oaths and asseverations. (Nav. Hist., vol. iv. 325.)

The ancient right of Great Britain to impress seamen for the Royal Navy from her own merchantmen has been modified by various statutes. The 19 Geo. III., c. 75 (repealed by Stat. Law Rev. Act, 1871), 'in an arduous and difficult conjuncture,' suspended four statutes which modified or limited the above right—viz. the 2 and 3 Anne, c. 6, s. 8, the 13 Geo. II., c. 17, the 2 Geo. III., c. 15, s. 22, and the 11 Geo. III., c. 38, s. 19—for the space of five months, except as far as regarded coal vessels.

By the 19 Geo. II., c. 30, no mariner or other person who shall serve on board or be retained on board any privateer or trading ship or vessel that shall be employed in any of the British sugar colonies in the West Indies, in America, nor any mariner or other person being on shore in the said British sugar colonies, nor any of them shall be liable to be impressed or taken away, or shall be impressed or taken away, in or from any of the said British sugar colonies or any of them, or any of the ports thereof, or at sea in those parts, by any officer or officers of or belonging to any of his Majesty's ships of war empowered by the Lord High Admiral of Great Britain or the Lords Commissioners, &c,

VOL. II.

T

It is not probable, however, after the discussions which have taken place on this subject, that the British Government will ever again enforce this alleged right of impressment from foreign merchant vessels. The British Government seemed to regard the right of impressment from neutral merchant vessels as incident to, rather than as a part of, the right of search. It is submitted that, by the English law, the subject owes a perpetual and indissoluble allegiance to the Crown, and is under the obligation, in all circumstances, and for his whole life, to render military service to the Crown, whenever required; and that it is a legal exercise of the prerogative of the Crown to enforce this obligation of the subjects, wherever they may be found; that the right of search being conceded by the laws of war, it gives the right of examining the crews of neutral vessels, and if, on such examination, British seamen be found among them, such seamen may be forcibly taken from the neutral vessels, and carried on board British cruisers. In reply, the American Government says that, whatever may be the obligations existing between the crown of England and its subjects, the English law cannot be enforced beyond the dominions and jurisdiction of that government; that every merchant vessel on the high seas being rightfully considered as a part of the territory of the country to which it belongs, to attempt to enforce the peculiar law of England on board such vessel, is to assert and exercise an extra-territorial authority for the law of British prerogative. If this notion of perpetual allegiance,' says Mr. Webster, and the consequent power of the prerogative was the law of the world; if it formed part of the conventional code of nations, and was usually practised, like the right of visiting neutral vessels for the purpose of discovering and seizing enemy property, then impressment might be defended as a common right, and there would be no remedy for the evil, till the national code should be altered. But this is by no means the case. There is no such principle incorporated into the code of nations. The doctrine stands only as English law, not as national law; and English law cannot be of force beyond English or any other person whosoever, unless such mariner shall have before deserted from such ship of war belonging to his Majesty.' This statute is discussed in Spieres v. Parker (1 Term R., 141); it is repealed by 27 and 28 Vict., c. 23, S. I.

dominion. Whatever duties and relations that law creates between the sovereign and his subjects can be enforced and maintained only within the realm, or proper possessions, or territory of the sovereign. There may be quite as just a prerogative right to the property of subjects as to their personal services, in an exigency of the State; but no government thinks of controlling, by its own laws, property of its subjects situated abroad; much less does any government think of entering the territory of another power, for the purpose of seizing such property, and applying it to its own uses. As laws, the prerogatives of the crown of England have no obligations on persons or property domiciled or situated abroad.'

rule on

§ 30. 'The American Government,' continues Mr. Webster, American 'is prepared to say that the practice of impressing seamen this subfrom American vessels cannot hereafter be allowed to take ject place. That practice is founded on principles which it does not recognise, and is invariably attended by consequences so unjust, so injurious, and of such formidable magnitude, as cannot be submitted to. In the early disputes between the two governments on this so long contested topic, the distinguished person to whose hands were first committed the seals of this department declared, that the simplest rule will be, that the vessel being American shall be evidence that the seamen on board are such! Fifty years' experience, the utter failure of many negotiations, and a careful reconsideration, now had, of the whole subject, at a moment when the passions are laid, and no present interest or emergency exists to bias the judgment, have fully convinced this Government that this is not only the simplest and best, but the only rule, which can be adopted and observed consistently with the rights and honour of the United States, and the security of their citizens. That rule announces, therefore, what will hereafter be the principle maintained by their Government. In every regularly documented American merchant vessel, the crew who navigate it will find their protection in the flag which is over them.'1

Webster to Lord Ashburton, Aug. 8, 1842; Webster, Dip. and Off. Papers, pp. 97, 101; Webster, Works, vol. v. p. 142, vol. vi. p. 329.

The rights and duties of neu

correla

tive

CHAPTER XXVIII

VIOLATION OF NEUTRAL DUTIES

1. The rights and duties of neutrality are correlative-2. Violation of neutral duty by a State-3. By individuals-4. Criminal character of such violations-5. Neutral vessels transporting enemy's goods -6. Opinions of publicists-7. Neutral goods in enemy ships8. Maxims of 'free ships free goods,' and 'enemy ships enemy goods'-9. These maxims in the U. S.-10. Treaties and ordinances-II. France and England in 1854-12. Congress of Paris in 1856-13. Rule of evidence with respect to neutral goods in enemy ships-14. Neutral ships under enemy's flag and pass-15. Neutral goods in such vessel-16. Neutral vessel in enemy's service-17. Transporting military persons-18. Conveying enemy's despatches--19. The case of the 'Trent'—20. Rule of 1756 and rule of 1793-21. Explication of them-22. Distinction between them-23. Effect on American commerce of the rule of 179324. Opinions of Story and of Phillimore-25. Views of American Government-26. Change of British colonial policy.

§ 1. ANY act of positive hostility on the part of a neutral State towards one of the belligerents in a war, is deemed a trality are breach of neutrality, and makes such State a party in the war. The rights and duties of neutrality are correlative, and the former cannot be claimed, unless the latter are faithfully performed. If the neutral State fail to fulfil the obligations of neutrality, it cannot claim the privileges and exemptions incident to that condition. The rule is equally applicable to the citizens and subjects of a neutral State. So long as they faithfully perform the duties of neutrality, they are entitled to the rights and immunities of that condition. But for every violation of neutral duties, they are liable to the punishment of being treated in their persons or property as public enemies of the offended belligerent.' Imperfect or qualified neutrality is no longer supported by custom, although it for

1 Kent, Com. on Am. Law, vol. i. pp. 115-117; Wheaton, Elem. Int. Law, pt. iv. ch. iii. § 1; Vattel, Droit des Gens, liv. iii. ch. vii. § 104; Riquelme, Derecho Púb. Int., lib. i. tit. i. cap. xi.; De Cussy, Droit Maritime, liv. i. tit. iii, § 9.

merly was in use. A Government bound by capitulations to supply mercenaries to a belligerent would, in time of war, be in a state of qualified neutrality. This has been fully dealt with in chapter xix.1

of neutral

§ 2. Having already discussed the mutual duties of States Violation in times of peace, it will not be necessary here to make any duty by a extended argument to enforce those duties on the part of the State neutral State toward other States with which it remains at peace, while they are carrying on hostilities towards each other. Its duty is that of entire impartiality, as well as neutrality. Should a neutral government, without cause or provocation, complaint or warning, attack the possessions, or capture the ships of a belligerent power, all would denounce the aggression as a flagrant outrage on the laws of justice as well as of humanity; yet it is precisely of this violation of justice, although in a milder form, that a neutral government is guilty, that, while it affects to maintain the relations of friendship with contending belligerent powers, furnishes to one effectual aid in the prosecution of the war, by a supply of ships, or arms, or munitions of war. With whatever pretext the government may veil its conduct, its acts are those of unprovoked and causeless, and, therefore, unjust hostility. A violation of neutrality is not limited to acts of positive hostility. If the neutral State assist one of the belligerents; if it grant favours to one to the detriment of the others; if it neglect or refuse to maintain the inviolability of its territory; or if it fail to restrain its own citizens and subjects from overstepping the just bounds of neutrality, as defined and established by the law of nations-it violates its duties towards the belligerent who is injured by such act or neglect, and is justly chargeable with hostility. Such conduct furnishes good cause for complaint, and, if persisted in, may become just cause of war. Sir Wm. Scott very justly remarked that there are no conflicting rights between nations at peace; which remark may be applied, with truth, to every case of a violation of neutral duty.?

1 Neutralisation is distinct from neutrality. It consists in the obligation on a State of abstention from war except in the strictest self-defence; but a State cannot be neutralised except with the concurrence of all other States affected by such neutralisation.

Bello, Derecho Internacional, pt. ii. ch. vii. §§ 1-3; Harrat v. Wise, 9 B. and C., 712; Naylor v. Taylor, 9 B. and C., 715; Medeiros v. Hill, 8bing. R., 231; the Maria,' 1 Rob., 360; Pitkin, Civil and Pol. Hist. of U. S., vol. i. ch. x.