ence of view arises from the fact that the governments of nearly all the Continental states of Europe are highly centralized in character, and all commercial undertakings are therefore subject to a more or less complete governmental supervision and control. This is the case in time of peace, and is an incident of internal administration. In time of war it is extremely easy for any of these governments to regulate, or even to effectually prohibit, contraband trade on the part of its subjects, if it is deemed desirable to do so as a matter of state policy. In England and the United States no such supervision exists in time of peace; and it could be established, in time of war, only as the result of legislation to that effect, and could be maintained only at considerable expense and at the constant risk of violating some of the existing guarantees of individual right.' The views above expressed are in substantial conformity to the rules in respect to the acts of individuals in time of war which were adopted by the Second Peace Conference at The Hague. The clause adopted provided that "a neutral power is not bound to prevent the export or transit, for the use of either belligerent, of arms, ammunition, or, in general, of anything which can be of use to an army or fleet." A similar rule was adopted in respect to similar undertakings on land.❜ (2.) Fitting-out of Hostile Expeditions in Neutral Territory. It has been seen that a belligerent has a right to expect that the armies of his enemy shall be composed of citizens of the state with which he is at war, and that he has a just ground of complaint if his enemy is permitted to recruit his armies in neutral territory. For precisely the same reason he has a right to expect that all expeditions and other warlike operations shall originate in the territory of his enemy, or in territory which, at the time, is securely occupied by that enemy. The rules of international law authorize him to so conduct his military and naval opera 1 2635 VI Calvo, §§ 2617, 2633 2 For text of convention, see Appendix F, Convention, No. 13. tions as to meet and oppose, and, to a certain extent, to anticipate military undertakings on the part of his enemy; but he has no such right as against a neutral; nor, from the principle of state sovereignty and independence, has he authority to enter upon neutral territory with a view to prevent the organization or departure of expeditions which are being prepared within such territory with intent to operate against him on the high seas or elsewhere. If, therefore, an expedition, or other war-like operation, which is directed against him originates in the territory of a neutral, such undertaking being an operation of war, he is at liberty to regard that neutral as an enemy, and is warranted by the rules of international law in holding him responsible for a violation of his neutral obligations. What Constitutes a Hostile Expedition-the Intent. In determining the duty of a neutral state in respect to permitting the fitting-out of hostile expeditions within its territories, the question of intent must be considered. If, for example, a vessel is constructed within neutral jurisdiction, purely as a commercial venture, and held for sale within neutral territory, or sent, under the papers and flag of such neutral state, to the port of a belligerent for sale with a crew sufficient only to navigate the ship and without capacity to resist search or capture, there is no violation of international law. If, on the other hand, the vessel is intended for belligerent use, and is constructed in neutral territory, but with a view to its becoming a part of the naval force of a belligerent on leaving such neutral port, then it becomes a hostile expedition which it is the duty of the neutral state to prevent.' In this case it does not "It is firmly settled that, if captures are made by vessels which have violated our neutrality laws, the property may be restored if brought within our territory."The Gran Para, 7 Wheaton, 471; the Santa Maria, 7 Wheaton, 490; the Monte Allegre, 7 Wheaton, 520. "This court has never de cided that the offence (of fittingout, etc., in violation of the neutrality acts) adheres to the vessel, whatever changes may have taken place, and cannot be deposited at the termination of the cruise in preparing for which it was committed; and, as the Irresistible made no prize on her passage from matter as to the state of completion in which the expedition may be when it leaves the waters of the neutral state; it is equally unlawful whether it be fully equipped for service, or whether it goes out in separate parts which are to be assembled on the high seas or in the waters of a neutral state. The offence is the same in either case.1 Baltimore to the river La Plata, it is contended that her offence was deposited there, and that the court cannot connect her subsequent cruise with the transactions of Baltimore."-The Gran Para, 7 Wheaton, 471 [487]. "If this were to be admitted in such a case as this, the laws for the preservation of our neutrality would be completely eluded, so far as this enforcement depends on the restitution of prizes made in violation of them. Vessels completely fitted in our ports for military operations need only sail to a belligerent port, and there, after obtaining a commission, go through the ceremony of discharging and re-enlisting their crews to become perfectly legitimate cruisers, purified from every taint contracted at the place where all their real force and capacity for annoyance was acquired. This would, indeed, be a fraudulent neutrality, disgraceful to our own government, and of which no nation would be the dupe. It is impossible for a moment to disguise the facts, that the arms and ammunition taken on board the Irresistible at Baltimore were taken for the purpose of being used on a cruise, and that the men there enlisted, though engaged, in form, as for a commercial voyage, were not so engaged in fact. There was no commercial voyage, and no individual of the crew could believe that there was one."-Ibid. See, also, II Halleck, pp. 196-199; II Twiss, 88 232-240; IV Calvo, §§ 2517-2522; III Dig. Int. Law, §§ 395a-402. The rule above stated, which is supported by American authors and by some Continental writers, will be found fully set forth in the case of the Santissima Trinidad (7 Wheaton, 283) and in the following note to Dana's edition of Wheaton: "As to the preparing of vessels within our jurisdiction for subsequent hostile operations, the test we have applied has not been the extent and character of the preparations, but the intent with which the particular acts were done. If any person does any act, or attempts to do any act, towards such preparation, with the intent that the vessel shall be employed in hostile operations, he is guilty, without reference to the completion of the preparations or the extent to which they may have gone, and although his attempt may have resulted in no definite progress towards the completion of his preparations. The procuring of materials to be used knowingly and with the intent, etc., is an offence. Accordingly, it is not necessary to show that the vessel was armed or was in any way or at any time before or after the act charged in a condition to commit acts of hostility. . . . It will be seen at once, by these abstract definitions, that our rules do not interfere with bona fide commercial dealings in contraband of war. American merchant may build and fully arm a vessel and supply her with stores and offer her for sale in our own market. If he does any acts as an agent or servant of a belligerent, or in pursuance of an arrangement or understanding with a belligerent, that she shall be employed in hostilities when sold, he is guilty. He may, with An The duty Duty of Neutral State, How Determined. and responsibility of a state in this regard are fixed and determined, not by municipal, but by international law, which requires a neutral state to prevent the departure of out violating our own law, send out such a vessel so equipped under the flag and papers of his own country, with no more force of crew than is suitable for navigation, with no right to resist search or seizure, and to take the chance of capture as contraband merchandise of blockade and of a market in a belligerent port. In such case the extent and character of the equipments are as immaterial as in the other class of cases. The intent is all. The act is open to suspicion and abuse, and the line may often be scarcely traceable, yet the principle is clear enough. Is the intent one to prepare an article of contraband merchandise to be sent to the market of a belligerent, subject to the chances of capture and a market? Or, on the other hand, is it to fit out a vessel which shall leave our port to cruise, immediately or ultimately, against the commerce of a friendly nation? The latter we are bound to prevent. The former the belligerent must prevent. In the former case the ship is merchandise, under bona fide neutral flag and papers, with a port of destination, subject to capture as contraband merchandise by the other belligerent, to the risks of blockade, and with no right to resist search and seizure, and liable to be treated as a pirate by any nation if she does any act of hostility to the property of a belligerent, as much as if she did it to that of a neutral. Such a trade in contraband a belligerent may cut off by cruising the seas and blockading his enemy's ports. But to protect himself against vessels sailing out of a neutral port to commit hostilities, it would be necessary for him to hover off the ports of a neutral; and to do that effectually he must maintain a kind of blockade of the neutral coast, which, as neutrals will not permit, they ought not to give occasion for."-Dana's Wheaton, 8th edition, note 215. See, also, the Santissima Trinidad, 7 Wheaton, 283. Where a person was indicted under the third section of the act of 1818 (3 Stat. 448; Rev. Stat. § 5283) with being knowingly concerned in the fittingout of a vessel with intent to employ her in the service of a foreign people, viz., the United Provinces of Buenos Ayres, against the subjects of the Emperor of Brazil, with whom the United States are at peace: Held, that to bring the defendant within the act, either fitting-out or arming will constitute an offence."-United States vs. Quincy, 6 Peters, 445. "It is not necessary that the vessel, when she left a port of the United States for a foreign port, and during her passage, and when she arrived at the foreign port, should be armed and in condition for hostilities to constitute an offence."-Ibid. "The preparations to commit hostilities must be made within the United States, and the intention with respect to the employment of the vessel must be formed before she leaves the United States." -Ibid. "The law does not prohibit armed vessels belonging to citizens of the United States from sailing; it only requires the owners to give security. Collectors are not authorized to detain vessels built for war-like purposes and about to depart, unless circumstances render it probable that they are to be employed in violation of the act."-Ibid. such hostile expeditions. It may resort to such measures of prevention, in respect to its subjects or other persons within its jurisdiction, as it may deem prudent or expedient to accomplish that purpose; it may enact stringent laws, or it may issue proclamations or promulgate regulations; with all this international law has nothing to do. Such statutes neither add to nor diminish the responsibility of the neutral state, which must see to it that such expeditions do not emerge from its territorial waters with a view to commit acts of hostility against a state with which the neutral is at peace. Their existence presumes an intention on the part of a state to fulfil its neutral duties. Their absence may imply the contrary, or it may imply that some department of the government has sufficient power in the premises to make such provisions unnecessary. If they exist, and are inadequate to the purpose, their inadequacy cannot be pleaded in extenuation of a violation of neutral duty; if they do not exist, their absence cannot be alleged to excuse a failure to observe a neutral obligation; nor, finally, can their enforcement, by obscuring the real issue involved, or by distracting the attention of a neutral state from its real responsibility, at all diminish that responsibility or change its character.1 Augmentation of Force. What has been said in respect to a hostile expedition originating in a neutral port applies with equal force to the augmentation of force by a ship or fleet in a neutral port, the principle being the same in either case. To "augment" the force of a vessel is to add to or increase her military power or efficiency, or make it possible for her to act more efficiently against the enemy by the addition of war-like stores or material. To increase the armanent of such a vessel, to add to its stock of ammunition, or to increase its crew would be a violation of the law which the neutral is bound to prevent." 'II Halleck, pp. 198 199; IV Calvo, 88 2491, 2593, 2616-2636; II Twiss, 217: Hall, § 19; III Phillimore, § 139; Lawrence, §§ 243–249. 2 "Converting a merchantman into a cruiser by increasing the number of her guns and adding other equipments is equivalent to |