Still later England procured the services of German mercenaries, who were employed in America during the war of the Revolution. These practices, which have long been disfavored, are now strictly forbidden as a flagrant violation of its neutrality on the part of the state which permits them. With a view to make such prohibition effective, the act of enlisting troops for service in the armies of a belligerent is now made the subject of prohibitory legislation. The neutrality laws of England and the United States, for example, forbid, under severe penalties, the enlistment of soldiers or sailors within their territories by the agents of one belligerent for service in its land or naval forces against the other, or against a power with which the neutral is at peace.' The matter was made the subject of con to the eventuality of war. The pp. 29 The law of the United States on the subject of foreign enlistments will be found in §§ 5281 and 5282 of the Revised Statutes. For English statutes on the same subject, see 3 James I. chap. iv.; 9 George II. chap. xxx.; George II. chap. xvii.; 59 George III. chap. xix. (1819); 33 and 34 Vict. chap. xc. 'Some other states rely upon a general prohibition to their subjects, and an intimation that, by disobedience, they will forfeit all right and title to the protection of their government as against the measures of reprisal against them which a foreign state may take. Some others rely upon the general terms of their municipal laws being so interpreted, in their application to a particular case, by courts of justice, as to punish such offenders, usually on the ground that their conduct tends to embroil the relations and increase the obligations of their government towards the foreign state, the enemy of the assisted belligerent."-III Phillimore, pp. 277-285; Report of Neutrality Laws Commissioners (Eng.), 1868. a "The act of April 30, 1818, like that of June 5, 1794, was intended to secure, beyond all risk of violation, the neutrality and pacific policy which they consecrate as our fundamental law."-III Opin. Att.Gen. p. 741.. b "The enlistment of seamen or others for marine service on Mexican steamers in New York, they not being Mexicans transiently within the United States, is a clear violation of this section, and the persons enlisted, as well as the officers enlisting them, are liable to the penalties thereby incurred."-IV Ibid. p. 336. "This section applies to foreign consuls raising troops in the United States for the military service of Great Britain."-VII Ibid. P. 367. "It does not apply to those who go abroad for foreign enlistment, or to those who transport such persons."-U. S. ventional regulation by the Second Peace Conference at The Hague.' The purpose of such legislation as that above described is to prevent organized efforts to secure the enlistment of troops, by belligerent agents, in neutral territory. Neutral governments, however, are not held responsible for the unorganized and unauthorized departure of individual citizens with intent to serve in the armies of a particular belligerent.2 The individual citizen, by so doing, forfeits, while in such belligerent service, the privileges of his local citizenship and the protection of his native government.2 Responsibility of a Neutral State for the Acts of its Subjects. A different rule applies to the.conduct of the subjects of a neutral state than is applied to the neutral state itself, in its relations with the belligerents. It has been seen that the restrictions to which neutral states are subject are such as will prevent them from aiding either belligerent in his military operations, and, at the same time, be the smallest possible consistent with the purpose of the war. The subjects of a neutral state are engaged in many different occupations at the outbreak of hostilities. Most of these are in no way affected by the existence or vs. Kazinski, 2 Sprague, 7. "The enlistment must be made within the territory of the United States, and the section does not apply to one who goes abroad with intent there to enlist.-Ibid. "The words 'soldier' and 'enlist as used in this section are to be understood in their technical sense."-Ibid. 1 For text of convention, see Appendix F, Convention No. 13. 'Henfield's Case. Henfield was a sailor, of American citizenship, who shipped in the French privateer Citizen Genet, at Charleston, S. C., while France was at war with England, and was indicted at common law for enlisting in violation of the treaties of the United States. The judges ruled that the act charged was a crime. In defence, however, it was shown that Henfield enlisted before the proclamation, in ignorance of the law, and, when told of its illegality, had expressed his regret. He was acquitted by the jury.-Wharton's State Trials (U. S.), p. 48, cited in Dana's Wheaton, § 439, note 215. See, also, U. S. For. Rel, 1885, p. 160. 3 Boyd's Wheaton, § 439; Creasy, p. 600; U. S. vs. Kazinski, 2 Sprague, 7; 8 Law Rep. 254; VII Opin. Att.-Gen. p. 367; Wharton's Criminal Law, pp. 905-910; Hall, pp. 600, 601; Risley, pp. 191–193; III Dig. Int. Law, §§ 390-395. non-existence of war. Some neutral subjects, however, are engaged in the manufacture, production, or distribution of certain articles, intended primarily for war-like uses, which become contraband and so liable to capture and condemnation by a belligerent if found at sea en route to a hostile destination. Others are engaged in trade with certain ports; with such ports a belligerent, by an exercise of the right of blockade, may absolutely prohibit commercial intercourse. In all other respects their undertakings are innocent, and are not interrupted or affected by the fact of war. The manufacture of contraband articles, and even their sale, in neutral jurisdiction, continues to be an innocent and lawful occupation. The neutral state itself ought not to be expected to interfere with the pursuits of its subjects, so long as they are not likely to compromise the position of neutrality which it assumed at the outbreak of the war. The powers placed in the hands of the belligerents to blockade the ports of an enemy, to search neutral vessels on the high seas, and to seize and condemn such portions of their cargoes as are contraband of war, or are destined to a blockaded port, are amply sufficient to protect them from being injured by the acts of individuals. If they do not, or cannot make their powers effective, they cannot, of right, expect neutral states to assist them in their endeavors. Nor can they expect neutrals to resort to severe police measures against their own subjects in a matter with which they have no direct concern.1 1 "Our citizens have always been free to make, vend, and export arms. It is the constant occupation and livelihood of some of them. To suppress their callings -the only means, perhaps, of their subsistence-because a war exists in foreign and distant countries, in which we have no concern, would scarcely be expected. It would be hard in principle and impossible in practice. The law of nations, therefore, respecting the rights of those at peace, does not require from them such an internal derangement of their occupations. It is satisfied with the external penalty pronounced in the President's proclamation-that of confiscation of such portion of these arms as shall fall into the hands of the belligerent powers on their way to the ports of their enemies." -Jefferson to British Minister, May 15, 1793, III Jefferson's Works, pp. 558-560; I Amer. State Pap. (For. Rel.), pp. 69, 147; Treasury Circular, August 4, 1793, Views of England and the United States. The principle involved was well stated by Mr. Webster in his reply to the Mexican Government, which had complained of certain alleged violations of neutrality, on the part of individuals, in the supply of arms to Texas, then at war with Mexico. "It is not the practice of nations to prohibit their own subjects, by previous laws, from trafficking in articles contraband of war. Such trade is carried on at the risk of those engaged in it, under the liabilities and penalties prescribed by the law of nations or particular treaties. If it be true, therefore, that citizens of the United States have been engaged in a commerce by which Texas, an enemy of Mexico, has been supplied with arms and munitions of war, the government of the United States, nevertheless, was not bound to prevent it; could not have prevented it, without a manifest departure from the principles of neutrality, and is in no way answerable for the consequences. . . . Such commerce is left to its ordinary fate, according to the law of nations." 1 Mr. Layard, the solicitor-general of the British Government, in a speech in the House of Commons, adopted the view above stated, and added: "The only law which enables her Majesty's Government to interfere in such cases is called the Foreign Enlistment Act, and the whole nature and scope of that act is sufficiently and shortly set out in its title. That act does not touch, in any way whatever, private vessels which may carry cargoes, contraband or not contraband, between this country and any port in a belligerent country, whether under blockade or not; and the government of this country, and the governments of our colonial possessions, have no power whatever to interfere with private vessels under such circumstances. I Amer. State Pap. (For. Rel.), p. 140; Pickering to French Minister, May 15, 1796, I Amer. State Pap. (For. Rel.), p. 649; III Dig. Int. Law, § 391; Hall, 218; II Twiss, § 222. 1 Lawrence's Wheaton, p. 813, note, citing Webster's Works, vol. vi. p. 452, Letter of Webster to Thompson, July 8, 1842; II Dig. Int. Law, § 391. "It is perfectly true that in the Queen's proclamation there is a general warning at the end, addressed to all the Queen's subjects, that they are not, either in violation of their duty to the Queen, as subjects of a neutral sovereign, or in violation or contravention of the law of nations, to do various things, one of which is carrying articles considered and deemed to be contraband of war, according to law or the modern usages of nations, for the use or service of either of the contending parties. That warning is addressed to them to apprise them that if they do these things they will have to undergo the penal consequences by the statute, or by the law of nations, in that behalf imposed or denounced. In those cases in which the statute is silent the government is powerless, and the law of nations comes in. "The law of nations exposes such persons to have their ships seized and their goods taken and subjected to confiscation, and it further deprives them of the right to look to the government of their own country for protection. And this principle of non-interference in things which the law does not enable the government to deal with, so far from being a violation of the duty of neutrality-which the government is anxious to comply with-is in accordance with all the principles which have been laid down by jurists, and more especially by the great jurists of the United States." 1 Continental View upon the Subject of Government Control of the Acts of Individuals. The views above expressed are those which have long been held upon this subject in England and the United States. Most Continental writers are at variance with this, and contend that more or less of direct governmental interference is necessary. This differ 'Lawrence's Wheaton, pp. 813, 814, citing remarks of SolicitorGeneral Layard in the House of Commons, February 22, 1862 See, also, Annual Message of President Pierce, 1854, Executive Documents of the United States, 1854 1855; II Twiss, § 226; Vattel, liv. iii. chap. vii. § 110; Hall, § 232; the Santissima Trinidad, 7 Wheaton, 283; Creasy, 88 552-558; Manning, pp. 255-259; III Phillimore, pp. 387-390. |