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As to levies

in a neutral

state made

treaty.

1780 a similar treaty had been concluded between England and Denmark. It is needless to repeat that positive covenants are not inserted in treaties merely to embody obligations which without them would be of equal stringency; and the continuance of the old practice is proved by the conclusion of a treaty in 1788 under which the Duke of Brunswick contracted to supply Holland with 3,000 men, and of another in the same year with a like object between Holland and Mecklenburg-Schwerin.2

It is more doubtful whether the levy of troops by belligerents on their own account within neutral apart from territory was still recognised by custom, when allowed apart from treaty to both parties indifferently. Bynkershoek says, 'I think that the purchase of soldiers among a friendly people is as lawful as the purchase of munitions of war ; ' they would merely be subject to capture like other contraband articles on their way to the belligerent state. Vattel in somewhat inconsistent language probably intends to give the same liberty. But there are a few treaties to the contrary

1 Elliot, American Diplomatic Code, i. 347. Chalmers, Collection of Treaties, i. 97.

2 De Martens, Rec. iv. 349 and 362.

3 Quod juris est in instrumentis bellicis, idem esse puto in militibus apud amicum populum comparandis. Quæst. Jur. Pub. lib. i. cap. xxii.

In the usually sensible Direcho Internacional of Pando (written in 1838) is a curious instance of the tendency of a doctrine, once sanctioned by a writer of authority, to perpetuate itself, like an organ which has become useless, and only remains in a rudimentary state to attest an epoch of lower development. He

almost repeats the words of Bynkershoek: 'Los hombres deben considerarse como articulo de guerra, en que es libre à todas naciones comerciar de la misma manera que en los otros, y con iguales restricciones.' (§ clxxxix.) In the particular case the doctrine is too much out of harmony with modern opinion to do mischief; but it is only an unusually glaring example of a common, and— as text writers are quoted in international controversy—a dangerous practice.

4 Droit des Gens, liv. iii. c. vii. § 110. His qualification that troops may be levied in a neutral state-à moins qu'elles ne soient donnés pour envahir les

effect between some of the most important powers. England and Holland were both reciprocally bound with France by the Treaties of Utrecht to prevent their subjects from accepting commissions in time of war from the enemies of whichever might be engaged in hostilities; a treaty of the year 1670 of the same nature was still in force between England and Denmark; and in 1725 Spain entered into a like engagement with the Empire. When troops were wanted they seem to have been generally, if not always, obtained under treaty; England and Holland for municipal reasons enacted laws expressly to restrain their subjects from entering the service of foreign states; and the neutrality edicts of the two Sicilies in 1778, and of Venice and the Papal States in 1779, forbid enlistment with a belligerent under pain of exile or imprisonment.2 The old practice may therefore be taken to have fallen into desuetude, and perhaps to have become illegal.

As to

cruisers

fitted out

trals.

The equipment by private adventure of cruisers to be employed under letters of marque in the service of a belligerent is an act analogous to the levy by neu of a body of men in aid of his land force, but from the conditions of marine warfare it is more mischievous to his enemy. A better defined rule might therefore be expected to exist with regard to it. Perhaps, on the whole, this was the case; but the dispute between England and France in 1777 shows 1777. Disthat it would be easy to overvalue the significance of pute bofacts tending to show such adventures to be illegal England

états-of the opposite belligerent, and provided that they are not too numerous, takes away with one hand what he gives with the other.

1 Dumont, viii. i. 348 and 378; vii. i. 136; and viii. ii. 115.

29 Geo. ii. c. 30, and 29 Geo. ii. c. 17. For comments on the intention of these acts, see Debates on the Foreign Enlistment Act, Hansard, xl. (1819); Bynkershoek, Quæst. Jur. Pub. lib. i. cap. xxii.; De Martens, Rec. iii. 47, 53, 74.

tween

and France

Neutrality edicts.

under the common law of nations. During the correspondence between the two Governments with reference to the covert help afforded to the American insurgents in France, M. de Vergennes admitted that France was bound to prevent ships of war from being armed and manned with French subjects within its territory to cruise against England. But in this instance, and in all the controversy of that time between the two nations, the demands of one party and the admissions of the other were alike based upon obligations under the Treaties of Utrecht and of Paris.1 It is not probable that England in her frequent Notes, and her elaborate 'Mémoire Justificatif,' would have refrained from supporting the special obligations of treaties by the authority of general law had she thought that its voice would be distinct enough for her purpose. Yet she had occasion to complain of acts which in the present day would seem to be of extraordinary flagrancy. The Reprisal, an American privateer, sailed from Nantes to cruise against the English. She returned to L'Orient, sold her prizes, and took in reinforcements of men. She then again cruised in company with a privateer which had been armed at Nantes, and was manned solely by Frenchmen; and fifteen ships captured by the two vessels were brought into French ports and sold.

The evidence tending to show that general opinion

1 De Martens, Causes Célè-
bres, iii. 152. The Fifteenth
Article of the Treaty of Com-
merce of Utrecht declares that
'il ne sera pas permis aux arma-
teurs étrangers, qui ne seront pas
sujets de l'une ou de l'autre
couronne, et qui auront com-
mission de quelqu'autre Prince
ou État ennemis de l'un et de

l'autre, d'armer leurs vaisseaux
dans les ports de l'un et de l'autre

des deux royaumes, d'y vendre ce qu'il auront pris, . . . ni d'acheter même d'autres vivres que ceux qui leur seront nécessaires pour parvenir au port le plus prochain du Prince dont ils auront obtenu des commissions.' Dumont, viii. i. 348. The stipulations of the Treaty of Utrecht were revived by the Treaty of Paris.

already looked upon the outfit and manning of cruisers by private persons as compromising the neutrality of a state, mainly consists in the neutrality edicts which were issued shortly after this time on the outbreak of actual war between England and France. Venice, Genoa, Tuscany, the Papal States, and the Two Sicilies, subjected any person arming vessels of war or privateers in their ports to a fine; and in 1779 the States-General of the United Provinces issued a placard reciting that it was suspected that subjects of the state had equipped and placed on the sea armed vessels under a belligerent flag, and declaring such 'conduct to be contrary to the law of nations, and to the duties binding on subjects of a neutral power.'1

6

duty at the

to De

§ 12. Ten years later De Martens summed up, Neutral the duties of neutrality as follows. It is necessary, end of the he says, 'for the observance of complete neutrality to eighteenth century abstain from all participation in warlike expeditions. according .. But can a power, without overstepping the Martens. bounds of neutrality, allow its subjects to accept letters of marque from a belligerent? In strictness, it would seem that it cannot. Treaties of commerce often contain an express promise not to accord any such permission.' He adds that a state which sends succour in troops or in money to one of the two belligerents can no longer in strictness demand to be looked upon as a neutral,' although in the case of pre-existent treaties it is 'the custom to regard it as

1 De Martens, Rec. iii. 25, and 47, 53, 62, 74. It appears, however, from a recital in the Treaty of 1787 between Russia and the Two Sicilies that subjects of the latter power were forbidden both in time of war and peace to build ships for, or to sell them to, foreigners; and that they were also forbidden to buy

them without express permission.
Ib. iv. 240. On the other hand,
the Venetian Government ex-
pressly refers to its wish to ob-
serve 'la più esatta ed imparziale
neutralità'; but the provisions of
the edict go in several respects
further than can be required by
law as it now is.

trality policy of the United States.

such.'1 It has been remarked by Kent that De Martens attached exaggerated importance to treaties, and in this case it would seem to be mainly on their authority that he declares neutrality to be inconsistent with the acceptance by neutrals of letters of marque. And, after all, his doctrine is expressed with some hesitation. Both applications of his general principles are carefully limited by the words 'à la rigueur.' Custom is these matters was growing; it was not yet established.

§ 13. The United States had the merit of fixing it permanently. On the outbreak of war in Europe 1793. Neu- in 1793, a newly-appointed French Minister, M. Genêt, on landing at Charlestown, granted commissions to American citizens who fitted out privateers and manned them with Americans to cruise against English commerce. Immediate complaint was made by the English Minister, who expressed his 'persuasion that the Government of the United States would regard the act of fitting out these privateers in its ports as an insult offered to its sovereignty.'2 The view taken by the American Government was in fact broader, and Mr. Jefferson expressed it clearly and tersely in writing to M. Genêt, 'that it is the right of every nation to prohibit acts of sovereignty from being exercised by any other within its limits, and the duty of a neutral nation to prohibit such as would injure one of the warring powers; that the granting military commissions within the United States by any other authority than their own is an infringement of their sovereignty, and particularly

1 Précis du Droit des Gens, §§ 264, 265, and note to latter section, ed. 1788. The later

editions are modified.

2 Mr. Hammond Jefferson, June 7, 1793.

to Mr.

3 M. Genêt maintained that to grant commissions and letters of marque was one of the usual functions of French consuls in foreign ports.

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