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or property of any foreign prince, etc., with whom the United States are at peace, or should issue or deliver a commission for any vessel, to the intent that she should be so employed. And it declared forfeited the vessel, with all her materials, arms, ammunition, and stores.
1427. It was held that the sailing from a port of the United States with a vessel fitted out, but not armed or manned, so as to be able to act as a privateer, with the intention of arming and manning her for that purpose at a port beyond the territories of the United States, was a misdemeanor within the provision last cited. The offender was indicted as knowingly concerned in the fitting out or arming of the vessel. United States v. Quincy.
1428. It was held that this Act did not affect the right of the subjects to equip vessels of war, and to send them furnished with arms, as commercial speculations, into a foreign port for sale. Their right to do so was checked only by the liability of their vessels to be captured as contraband. Santissima Trinidad.
1429. The previous American Act of 1794 had the words “any foreign prince or state” only, not the words “ or of any colony, district, or people.” And in Gelston v. Hoyt it was held that, until it had been recognized as an independent state by the government to which it had belonged, or by the government of the United States, however independent it might in fact have become, that which had been must be still regarded as a colony; and that until such recognition courts of justice were bound to consider the ancient state of things as remaining unaltered (citing Rose v. Himely ; Manilla; City of Berne v. Bank of England; and Dolden v. Bank of England). And it was therefore held (1818) that a ship fitted out and armed, to be em. ployed in the service of that part of St. Domingo which was under the government of Petion, to cruise and commit hostilities against that part of the island which was under the government of Christophe, was not within the prohibition.
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This defect in the Act was remedied by that of 1818, and guarded against by the English Enlistment Act.
1430. That Act, 59 Geo. III. c. 69, s. 2, declares (in a profusion of words which we endeavour to abridge) guilty of a misdemeanor, to be punished with fine and imprisonment, or with fine or imprisonment, any natural-born English subject who, without the royal licence, under the sign manual, or signified by Order in Council, or by royal proclamation—(1st) accepts or agrees to accept, or goes or agrees to go abroad with intent or in order to accept, any military commission, or enters or goes, or agrees to go abroad with intent to enter, as a commissioned or non-commissioned officer, or goes or agrees to go abroad to enlist, enlists or agrees to enlist, to serve as a soldier, sailor, or marine, or to be employed in any warlike or military operation, in the service of or on board any vessel of war, or vessel intended to be used for any warlike purpose, under or in aid of any foreign power, province, or people, or person, assuming to exercise the powers of government, although no enlisting money, pay, or reward, shall have been received; (2ndly) any person whatever who, within any part of the British dominions or colonies, hires, retains, engages, or procures, or atteinpts to hire, or engage, or procure any person whatever to enlist or enter, or engage to enlist, or to serve, or be employed in such service or employment as an officer, soldier, sailor, or marine, either in such land or sea service, or to go or agree to go abroad, for the purpose or with intent to be so enlisted or engaged. Sec. 2.
Justices of the peace are authorized to issue warrants for the apprehension of offenders, and to take measures for their being brought to justice. (Sec. 4.) The principal officers of the customs, and, where there are no such officers, the governors, or persons having the chief command, are authorized to detain, on information on oath, any vessel which shall have on board any persons who have enlisted, or are going abroad for the purpose. And the master of any vessel knowingly receiving such persons on board, is liable to a penalty of £50. Secs. 5, 6. - 1431. These provisions, so far as they refer to the entering or agreeing to enter, or the procuring of others to enter into the service of one belligerent, against another with whom the sovereign is at peace, are merely municipal ordinances to empower the sovereign to restrain bis subjects in conformity with his obligations under the international law. His licence relieves his subjects from punishment under the statute; but his omission to restrain them from leaving his ports in arms involves a breach of neutrality towards the injured state.
1432. The English Foreign Enlistment Act (sec. 8) declares guilty of a misdemeanor, punishable by fine and imprisonment, or fine or imprisonment, and forfeiture of the vessel, with all materials, arms, ammunition, and stores on board, any person who, without the licence of the Crown, in any part of the British dominions, (1st) equips, furnishes, fits out or arms, or procures to be equipped, furnished, fitted out or armed, or assists in equipping, furnishing, fitting out or arming, any vessel, “with intent or in order that she shall be employed in the service of any foreign power, province, people, or person, assuming to exercise the powers of government,” as a transport or store ship, or with intent to cruise or commit hostilities against any prince, state, or potentate, or against the subjects or citizens of any prince, state, or potentate, or against the persons exercising or assuming to exercise the powers of government in any colony, province, or part of any province or country, or against the inhabitants of any foreign colony, province, or part of any province or country, with whom England shall not be at war; (2ndly) issues or delivers any commission for any ship or vessel, to the intent that such ship or vessel shall be employed as aforesaid.
1433. Any officer of the customs or excise, or any officer of the Navy, who is by law empowered to make seizures for forfeiture under the laws of customs or excise, is authorized to seize such ships.
1434. The vessel is to be prosecuted and condemned according to the customs, excise, and navigation laws.
1435. The only prosecution which has occurred since the passing of this Act was instituted in this present month of June, and the owners of the Alexandra were acquitted. The Chief Baron Pollock, who tried the case, expressed his opinion, that if she was built for sale, or on contract to be sent from England unarmed, though to be armed elsewhere, the law was not infringed; that it would not be violated unless she was to be furnished, fitted, and equipped and armed in England.—Times, 25th June, 1863.
1436. It is the duty of neutral governments, and their general practice at the breaking out of a war, to admonish their subjects and others of the restraints which are imposed upon their conduct by the municipal law, and also of the dangers they will incur by transgressing the law of nations, or entering upon contraband trade.
1437. In some cases, and to some extent, the belligerent may, directly or indirectly, appeal to the municipal law, as by prosecuting, or procuring the prosecution of indictments in the ordinary courts. When, or to the extent in which such remedy is not open to him, he must invoke the interposition of the neutral state; and on sufficient information, require it, in conformity with its neutral duty, to put its powers over refractory subjects in force.
SECTION 3. RIGHTS AND DUTIES OF THE SUBJECT.
1438. The subjects of a neutral state are not directly responsible to a belligerent for anything done within the limits of their own country, whether on land or on the neutral margin of the sea. Within these limits the subjects are mere molecules of the mass constituting the nation, which, cannot be injured without injury to the whole. The sovereign is responsible for their conduct, and they are re
sponsible to the municipal law. This rule extends to all foreigners resident within the neutral nation, except such as are amenable, on their allegiance, to the belligerent state. If the belligerent deem himself aggrieved by the equipment of vessels or the enlistment of troops within neutral territories, he must require the sovereign to observe the law of nations; it is for the sovereign to maintain the neutrality and honour of the state.
1439. But beyond the limits of the presidial line, unless the neutral sovereign undertake and efficiently perform the office of restraining his subjects from carrying contraband, or attempting the breach of blockade, the belligerent is entitled to employ his own powers of repression, and to assert his belligerent rights.
1440. PRIVATE ARMAMENTS.-As soon as a private ship, armed and manned, has left the national waters of a neutral state, to aid and take part in the war with one of the belligerents, under his commission or without, whether manned entirely or partially with subjects of the neutral country, the adverse belligerent may attack, takc, or destroy her as a foe; and iu some cases, without affront to the neutral, execute the crew as pirates. Such is their character; but the horror of unnecessary bloodshed, and the fear of retaliation, causes them in general to be treated as prisoners of war.
1441. MERCENARIES.--As soon as war breaks out between two wealthy nations, swarms of adventurers of every description are ready to leave the neutral shores to participate in plunder and pay. The armies of both belligerents in general teem with fighting men of this stamp. Not unfrequently their best commanders and soldiers, both on land and at sea, are foreign mercenaries, whose trade, sentiment, and education are war, plunder, and pay, with occasionally a spice of romance, or a real or pretended sympathy in the cause in which they are engaged.
When such adventurers set forth to sell their swords and