the prohibition which already existed with respect to Spain, or remove from Spain the prohibition to which she was then subject, provided they meant to place the two countries on an equal footing. So far as the exportation of arms and ammunition was concerned, it was in the power of the crown to remove any inequality between the belligerent parties, simply by an order in council. Such an order was consequently issued, and the prohibition of exporting arms and ammunition to Spain was removed. By this measure the British government offered a guaranty of their bona fide neutrality. The mere appearance of neutrality might have been preserved by the extension of the prohibition to France, instead of the removal of the prohibition from Spain; but it would have been a prohibition of words only, and not at all in fact; for the immediate vicinity of the Belgic ports to France would have rendered the prohibition of direct exportation to France totally nugatory. The repeal of the act of 1819 would have, not the same, but a correspondent effect to that which would have been produced by an order in council prohibiting the exportation of arms and ammunition to France. It would be a repeal in words only as respects France, but in fact respecting Spain; and would occasion an inequality of operation in favor of Spain, inconsistent with an impartial neutrality. The example of the American government was referred to, as vindicating the justice and policy of preventing the subjects of a neutral country from enlisting in the service of any belligerent power, and of prohibiting the equipment in its ports of armaments in aid of such power. Such was the conduct of that government under the presidency of Washington, and the secretaryship of Jefferson; and such was more recently the conduct of the American legislature in revising their neutrality statutes in 1818, when the Congress extended the provisions of the act of 1794 to the case of such unacknowledged States as the South American colonies of Spain, which had not been provided for in the original law. (a)215

(a) Annual Register, lxi. 71. Canning's Speeches, iv. 150; v. 34.

[215 Neutrality or Foreign Enlistment Acts. - The laws for the better preservation of neutrality have come into so much notice since the author's death, that it is necessary to give them a much fuller consideration than they received in the text. It is proposed to consider, first, the political history of the subject before the passage of the statutes in question; second, the judicial construction they have received; and, third, the political history of the subject since their enactment.

I. POLITICAL HISTORY OF THE SUBJECT IN THE UNITED STATES BEFORE THE STATUTES.

of the neu

tory, how

§ 440. The unlawfulness of belligerent captures, made Immunity within the territorial jurisdiction of a neutral State, is tral terriincontestably established on principle, usage, and au- far it exthority. Does this immunity of the neutral territory from the exercise of acts of hostility within its limits, sels on the high extend to the vessels of the nation on the high seas, and seas. without the jurisdiction of any other State?

tends to neutral ves

Statutes for the better preservation of neutrality, which have come to be known in England as "Foreign Enlistment Acts," had their origin in the United States. They arose out of the endeavor of Washington's administration to maintain, under great difficulties, neutrality in the wars of the French Revolution. In order to secure the aid of France in their struggle for independence, the United States had made terms in their Treaty of Commerce, of 1778, which caused them great trouble afterwards. By the 17th article of that treaty, French public ships or privateers could take their prizes into American ports, without restriction of cause or time, and the legality of the captures could not be there inquired into; while the United States were bound to close their ports against prizes made from the French by nations at war with France, except as ports of refuge in stress of weather, and, in such case, to require their departure at the earliest practicable moment. By the 22d article, privateers of a nation at war with France were to be prohibited, in ports of the United States, from fitting themselves, and from selling their prizes, or procuring stores beyond what should be necessary to take them to the nearest port of their own country.

In 1793, the French frigate Ambuscade captured an English merchant vessel, the George, in Delaware Bay, and brought her to Philadelphia. The United States restored her, as her capture was a clear violation of sovereign territorial right. M. Genet, ambassador from the French Republic, had undertaken to fit out privateers in the ports of the United States to cruise against British commerce, and to enlist American citizens to serve on board them. The British claim for the restoration of their prizes, on the sole ground that the privateers which captured them were fitted out in our ports, presented great difficulties, under our treaty. President Washington issued, on the 22d April, 1793, his celebrated Proclamation of Neutrality. After reciting the existence of war between France on the one part, and Great Britain and other powers on the other, and declaring that it was the duty and interest of the United States to pursue in good faith a course of conduct "friendly and impartial towards the belligerent powers," and exhorting all citizens to avoid acts tending to contravene that policy, it declared, that no citizen would be protected against punishment or any forfeiture which he might incur, under the law of nations, by "committing, aiding, or abetting hostilities against any of the said powers, or by carrying to any of them those articles which are deemed contraband by the modern usage of nations." The chief feature, however, of the proclamation was the announcement that the President had instructed the proper officers to institute prosecutions "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." At this time the United States had no statutes on the subject of neutrality.

As the object of M. Genet was not only to use the United States as a base of maritime warfare, but to involve the country in war with England, this proclamation was an object of attack by him and the French party in America. Gratitude to France for her assistance in obtaining our independence, sympathy with democratic institutions for which France was at war, and the remains of hostile feeling against

We have already seen, that both the public and private vessels of every independent nation on the high seas, and without the territorial limits of any other State, are subject to the municipal jurisdiction of the State to which they belong.216 This jurisdiction is exclusive, only so far as respects offences against the municipal England, combined to make the support and execution of this proclamation matter of great difficulty. Am. State Papers, i. 44.

The privateers fitted out in the United States, under the auspices of the French Minister and French consuls, took many prizes, and brought them into ports of the United States. In these ports, the French consuls undertook to hold prize courts, authorized thereto by the French Republic, and to condemn and sell the prizes. The British Minister, Mr. Hammond, remonstrated. M. Genet claimed the right under the law of nations and the Treaty of Commerce. The claim was denied by the United States Government, in a letter by the Secretary of State, Mr. Jefferson; and the ground was taken, that, of national right, all judicial functions within the territory. of the United States must be exercised only by the government of the United States, and that such right had not been impaired by any treaty with France. (Am. State Papers, i. 144.) This, with the decision of the Supreme Court in The Betsey (Dallas, iii. 6, infrà), put an end to French consular courts of prize in the United States.

It appeared that the French privateers were not only fitted out and manned, but commissioned, within the United States; and that American citizens were enlisted to serve on board them. M. Genet contended that the laws of the United States did not forbid its citizens joining a foreign service, and that such an act was, pro tanto, a renunciation of allegiance; that no law prohibited French citizens from doing acts of belligerent business in the United States, including the giving and receiving of commissions, not being acts of violence or overt war. (Am. State Papers, i. 79, 83.) This was denied by the government of the United States. But, at the same time, it became necessary to draw a line between commercial dealings with belligerents in materials of war, and the fitting out of vessels, enlisting of men, and commissioning of officers here for hostile operations. The British Minister had objected to the export of arms to France by our citizens, or from our ports by French citizens. In reply to this, Mr. Jefferson wrote his celebrated letter of 25th May, 1793. (Jefferson's Works, iii. 588. Am. State Papers, i. 69.) In that he declared that "the commissioning, equipping, and manning vessels in our ports, to cruise against any of the belligerent parties, is entirely disapproved, and the government will take effectual means to prevent a repetition of it;" but that the right of our citizens" to make, vend, and export arms," which were mechanical and commercial callings, was one which a foreign war could not take away. If our citizens exported arms on their own account, they did it subject to capture and condemnation by belligerents.

In respect to the fitting-out of privateers, the government was soon called upon to act by the bringing into Philadelphia of a prize to the French privateer Citizen Genet, which had been fitted out at Charleston. Mr. Jefferson wrote to M. Genet, that the "arming and equipping of vessels in the ports of the United States, to cruise against nations with whom they were, at peace, was incompatible with the territorial sovereignty of the United States; made them instrumental to the annoyance of those nations, and thereby tended to compromise their peace; and that he thought it necessary, as an evidence of good faith to them, as well as a public reparation to the

[216 Vide ante, §§ 106, 107.]-D.

laws of the State to which the vessel belongs. It excludes the exercise of the jurisdiction of every other State under its munici

sovereignty of the country, that the armed vessels of this description should depart from the ports of the United States."

Genet claimed the right of remaining in our ports, under the 17th and 26th articles of the Treaty of Commerce. But the government held that the privilege did not extend to vessels fitted out in our ports to cruise against friendly commerce.

The British Minister claimed that the prizes captured by such cruisers, and coming within American jurisdiction, should be restored. This claim was embarrassing to Washington, under the treaty with France. The result was, a despatch of 5th June, 1793, to the British and French ministers, which became an epoch in American neutrality. It declared that the fitting-out and commissioning of cruisers would be prohibited hereafter, and demanded the departure of such vessels from our ports; but, as to the surrender of prizes already taken by French privateers so fitted out, the government declined to enforce it, on the ground that these acts were done in remote ports, at the beginning of the war, before the proclamation, when parties did not know their rights under the treaty, and the laws of nations were not ascertained, and the difficulty of communication was great; and that, if the United States did its duty in suppressing such acts in the future, it ought to be accepted as a reasonable measure of justice between the belligerent powers, under the peculiar situation of the country. It was suggested also, that, if the captures were invalid, the Courts of Admiralty in the United States would deliver up the prizes, on private application and suit.

M. Genet refused to abandon the fitting-out of privateers, and especially, in one case, sent a privateer, Le Petit Democrat (previously, the merchantman Little Sarah), in violation of his pledged word to Mr. Jefferson.

to

sea,

The despatch of 5th June was now followed up by a circular letter of 4th August, 1793, to the collectors of customs throughout the United States. This circular laid down rules for the guidance of the revenue officers as to vessels equipped in ports of the United States: 1. The "original arming and equipping" of vessels by belligerents, for military service, is unlawful. 2. "Equipments of merchant-vessels, purely as such," is lawful. 3. "Equipments of vessels of war in the immediate service of the government of any of the belligerent parties, which, if done to other vessels, would be of a doubtful nature as being applicable to either commerce or war, are deemed lawful." 4. Equipments, by any of the parties at war with France, of vessels fitted for merchandize or war, whether with or without commissions, which are doubtful in their nature as being applicable either to commerce or war, are deemed lawful. 5. Applies the same rule to French vessels. 6. Equipments of every kind, of privateers of the powers at war with France, are deemed unlawful. 7. Equipments of vessels which are of a nature solely adapted to war, are deemed unlawful. 8. Vessels of either of the parties not armed, or armed previously to their coming into ports of the United States, which shall not have infringed any of the foregoing rules, may lawfully engage or enlist their own subjects or citizens not being inhabitants of the United States.

To most of the rules was added an exception, intended to fulfil the 17th article of the French treaty, which is of no general importance now.

Under these rules, the revenue officers were instructed to refuse asylum to armed vessels of a belligerent, originally fitted out in the United States, or to the prizes of any such vessel. But the "purchasing and exporting, by way of merchandise, any articles commonly called contraband, being generally warlike instruments and military stores, are free to all parties." Am. State Papers, i. 122.

At the same time with the issuing of these rules, Mr. Jefferson, on the 7th August

pal laws, but it does not exclude the exercise of the jurisdiction of other nations, as to crimes under international law; such as

(Am. State Papers, i. 136), wrote to M. Genet, that the President had determined to make the notice of 5th June, 1793, the date of a new rule as to France; that the Presi dent would consider the United States bound to restore all prizes which had been captured by privateers fitted out in the United States, and brought into port after that day, or to make compensation therefor; and that the President therefore expected the French Minister to deliver up to the government all prizes taken by such vessels and brought into port after that date.

A new rule was also applied to Great Britain, founded on the despatch of 5th June, and the letter to M. Genet of 7th August, which was declared by a letter from Mr. Jefferson to Mr. Hammond, of 5th September, 1793. (Am. State Papers, i. 165.) This rule was, that restitution was refused of prizes brought into the United States before the notice of 5th June; but was to be made of prizes brought into port after that and before the 7th August, with compensation in default of restitution. This was on the ground that the United States, to preserve amicable relations with France under its treaty, had purposely forborne to use all the means in its power for the restitution of such vessels. As to prizes so taken and brought in after the 7th August, the Presi dent felt bound to use all the means in his power for their restitution; but, if these failed, he did not admit, as a rule, an obligation to make compensation, but left the cases for special consideration as they should occur.

After the 7th August, 1793, it is believed that no privateers were fitted out; and those which had been fitted out in ports of the United States before that time, and had returned, were not permitted to go to sea with armaments on board. In De cember, 1793, M. Genet was superseded, at Washington's request, by a new minister, who was instructed to disarm the privateers fitted out in the United States, to remove the consuls who had acted in violation of the proclamation, circular, and despatches of Washington, and to disavow the acts of M. Genet.

The trials of Guinet and Henfield, and the proceedings in the case of Les Jumeaux (afterwards Le Cassius), and other acts of the government, are involved in the judicial proceedings, and are considered under the subsequent head of the Judicial History of this subject.

At the opening of the next session of Congress (December, 1793), Washington communicated his proclamation, despatches, and circulars, with the facts that preceded and attended them, and suggested legislation for the better preservation of neutrality. Congress approved the policy of the President, and passed the celebrated statute of 5th June, 1794 (U. S. Laws, i. 381), generally called, at the time, the Neutrality Act.

The course pursued by Washington and his Cabinet, in sustaining neutrality and impartiality, has received the commendations of the masters of public law in all nations. Aided by the genius of two such men as Hamilton and Jefferson, he may be supposed to have been well supported; but his task was a hard one. The French had a constant appeal to the gratitude and sympathy of the Americans; popular feeling ran high; the jurisdiction of the courts in criminal cases was doubtful; and the power of the government-itself a recently inaugurated experiment-to resist popular opinion, had never been tested. He had no navy, nor even a naval department, and substantially no army. He was obliged to rely upon the militia of the States to make the seizure of vessels and persons, where resistance was feared. The French privateer Republican was seized at New York by Governor Clinton, with the State forces, in June, 1793, and was retained in custody for more than a year, against the remon