commission or engagement in the military or naval service of any such foreign State as aforesaid

He shall be guilty of an offence against this Act, and shall be punishable by fine and imprisonment, or either of such punishments, at the discretion of the court before which the offender is convicted: and imprisonment, if awarded, may be either with or without hard labour.

5. If any person, without the licence of Her Majesty, being a British subject, quits or goes on board any ship with a view of quitting Her Majesty's dominions, with intent to accept any commission or engagement in the military or naval service of any foreign State at war with a friendly State, or, whether a British subject or not, within Her Majesty's dominions, induces any other person to quit or to go on board any ship with a view of quitting Her Majesty's dominions with the like intent

He shall be guilty of an offence against this Act, and shall be punishable by fine and imprisonment, or either of such punishments, at the discretion of the court before which the offender is convicted; and imprisonment, if awarded, may be either with or without hard labour.

6. If any person induces any other person to quit Her Majesty's dominions or to embark on any ship within Her Majesty's dominions under a misrepresentation or false representation of the service in which such person is to be engaged, with the intent or in order that such person may accept or agree to accept any commission or engagement in the military or naval service of any foreign State at war with a friendly State

He shall be guilty of an offence against this Act, and shall be punishable by fine and imprisonment, or either of such punishments, at the discretion of the court before which the offender is convicted; and imprisonment, if awarded, may be either with or without hard. labour.

7. If the master or owner of any ship, without the licence of Her Majesty, knowingly either takes on board, or engages to take on board, or has on board such ship within Her Majesty's dominions any of the following persons, in this Act referred to as illegally enlisted persons; that is to say:

(1.) Any person who, being a British subject within or without the dominions of Her Majesty, has, without the licence of Her Majesty, accepted or agreed to accept any commission or engagement in the military or naval service of any foreign State at war with any friendly State:

(2.) Any person, being a British subject, who, without the licence of Her Majesty, is about to quit Her Majesty's dominions with intent. to accept any commission or engagement in the military or naval service of any foreign State at war with a friendly State:

(3.) Any person who has been induced to embark under a misrepresentation or false representation of the service in which such person is to be engaged with the intent or in order that such person may accept or agree to accept any commission or engagement in the military or naval service of any foreign State at war with a friendly State; such master or owner shall be guilty of an offence against this Act, and the following consequences shall ensue: that is to say:

(1.) The offender shall be punishable by fine and imprisonment, or either of such punishments, at the discretion of the court before which the offender is convicted; and the imprisonment, if awarded, may be either with or without hard labour; and

(2.) Such ship shall be detained until the trial and conviction or acquittal of the master or owner, and until all penalties inflicted on the master or owner have been paid, or the master or owner has given security for the payment of such penalties to the satisfaction of two justices of the peace, or other magistrate or magistrates having the authority of two justices of the peace: and

(3.) All illegally enlisted persons shall immediately on the discovery of the offence be taken on shore, and shall not be allowed to return to the ship.

British Foreign Enlistment Act, 1870, secs. 4-7.

Article 6. Hague Convention V, 1907, is substantially identical with section 233, Austro-Hungarian Manual, 1913.

In a note to the Spanish minister, of May 8, 1856, the United States Secretary of State said: "What have been called expeditions organized within our limits for foreign service have been only the departure of unassociated individuals. Such a departure, though several may go at the same time, constitutes no infringement of our neutrality laws, no violation of neutral obligations, and furnishes no ground for the arraignment of this Government by any foreign power."

Moore's Digest, vol. vii, p. 927.

TheSantissima Trinidad," Wheat., 283.-In this case the court said that an American citizen might enter either the land or naval service of a foreign government without compromising the neutrality of the United States.

United States v. Hart, 74 Fed. Rep., 724.-In this case the court said: "As this is lawful for one man to leave the United States to enlist abroad, so it is lawful for ten men or for twenty or a hundred men. It is a necessary incident to this lawful right, that men may go abroad for this purpose in any way they see fit; either as passengers by a regular line steamer, or by chartering a steamer, or in any other manner they choose, either separately or associated; so long as they do not go as a military expedition, nor set on foot a military enterprise, which Sec. 5286 prohibits."

The court further said: "If, however, the expedition or enterprise was designed only to transport munitions of war as merchandise to Cuba, though for the use of the insurgent army, and at the same time to transport a body of men as individuals to Cuba, who wished to enlist there, and that was all, then it was not a military expedition or enterprise under this statute: it would not be so unless the men had first combined or agreed to act together as a military force, or contemplated the exercise of military force in order to reach the insurgent army."

United States v. O'Brien, 75 Fed. Rep., 900.-In this case it was held that individual citizens leaving the country with intent to enlist in a foreign army when they have arrived abroad may even char

ter a steamer for the purpose of facilitating their passage, provided they are not so organized as to constitute an "armed expedition within the meaning of section 5286, Revised Statutes.

United States v. Nunez, 82 Fed. Rep., 599.—In this case it was held that since it is not an offense against the neutrality laws of the United States for individual citizens to leave the country with intent to enlist in a foreign army when they have arrived abroad, they may, as a necessary condition of their departure, go in company with one another, provided they are not so organized as to constitute an "armed expedition within the terms of section 5286, Revised Statutes.

EXPORT OR TRANSPORT OF WAR SUPPLIES TO BELLIGERENT-NEUTRAL NOT CALLED UPON TO PREVENT.

A neutral Power is not called upon to prevent the export or transport, on behalf of one or other of the belligerents, of arms, munitions of war, or, in general, of anything which can be of use to an army or a fleet.-Hague Convention V, 1907, Article 7.

It was contended, on the part of the French nation, in 1796, that neutral governments were bound to restrain their subjects from selling or exporting articles contraband of war to the belligerent powers. But it was successfully shown, on the part of the United States, that neutrals may lawfully sell, at home, to a belligerent purchaser, or carry, themselves, to the belligerent powers, contraband articles subject to the right of seizure, in transitu. This right has since been explicitly declared by the judicial authorities of this country.

Kent, vol. 1, p. 148.

But while the law of nations holds the government of the neutral state responsible for any act of positive hostility committed by its officers, or, in most cases, by its citizens and subjects, it is not in general held responsible for ordinary violations of neutral duty, (not in themselves of positive hostility.) by such citizens or subjects. The law in such cases imposes the duty upon the individual, and if it be violated, the penalty is imposed and enforced upon the individual, by the capture and confiscation of his property. Thus, the neutral state is not bound to restrain its subjects from engaging in contraband trade. Nor do the courts of a neutral country, as a general rule, enforce penalties for violations of neutral duty. courts do not enforce penalties for carrying contraband of war, All such cases are left to be adjusted by the prize tribunals of the belligerents.

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Halleck, p. 630.

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Such

International law does not require of the neutral sovereign that he should keep the citizen or subject within the same strict lines of neutrality which he is bound to draw for himself. The private person, if the laws of his own state or some special treaty do not forbid, can lend money to the enemy of a state at peace with his own country for purposes of war [can sell it arms, ammunition, or any article of war], without involving the government of his country in guilt. The English courts, however, and our own deny that any right of action can arise out of such a loan, on the ground that it is contrary to the law of nations. (Phillimore, iii., Sec. 151; case of Kennett v. Chambers, 14 Howard's U. S. Rep., 38.)

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Woolsey, p. 280.

As to the question of dealing in contraband, confusion has resulted from the failure to distinguish the different lights in which contraband traffic is to be viewed. In works on international law we often find the statement that the sale of contraband is unlawful, while we also find the statement that it is lawful. Both statements are true in the sense in which they are intended to be understood, but they refer to two different things.

The fundamental principles are simply these: From the point of view of neutrality the question of unlawfulness is presented in two aspects, (1) that of international law, and (2) that of municipal law. Offenses under (1), i. e., acts unlawful by international law, are divided into two classes, (a) acts which the state is bound to prevent, and (b) acts which the state is not bound to prevent, and which therefore are not usually offenses against municipal law. The dealing in contraband belongs under (1) (b), for it is (1) unlawful by international law, as is shown by the fact that the noxious articles may be seized on the high seas and confiscated; but (b) it is not an act which it is the duty of the neutral state to prevent, and therefore is not usually prohibited by municipal law.

Why is the neutral state not bound to prevent it? Simply because, from obvious considerations of convenience, it has been deemed just to confine within reasonable bounds the duty of the neutral state to interfere with the commerce of its citizens, even for the purpose of repressing unneutral acts. The principal interest to be subserved being that of the belligerents, it is left to them, in respect of many acts in their nature unneutral, to adopt measures of self-protection; and neutral states are deemed to have discharged their full duty when they submit to the belligerent enforcement of such measures against their citizens and their commerce.

Moore's Digest, vol. vii, p. 972.

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states not only do not punish blockade-running and the traffic in contraband but even enforce judicially contracts made for those purposes.

Westlake, vol. 2, p. 195.

We, therefore, in accordance with the general opinion, hold that a neutral state is not bound by actual international law to prohibit the export of contraband

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Westlake, vol. 2, p. 196.

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The European states which have colonial possessions know well that relations of enmity and neutrality exist between them and natives having nothing which can be treated as state life, with whom therefore they can only deal as with men to be treated with justice. If states please to arrange the duties of neutrality on a footing which allows them to leave their subjects in certain cases face to face with foreign powers, there is merely another instance of a similar kind.. Impossibility in fact there is none, and to assert an impossibility in theory, to say that an individual so left to himself is incapable of interfering in a war, and that his acts can receive no legal qualification unless they are first carried up to his state and then down again to himself, is purely arbitrary. It remains true that international law is the law of states, but there is no solid reason why states should